Q128 Mr. David Ruffley (Bury St. Edmunds) (Con): Thank you, Sir Nicholas. Good morning. I should like to put my questions in two parts: part 1 on policing and part 2 on sex offences. Ms Chakrabarti, I read your submission with interest. To kick off on policing, why are you so critical of the provisions giving the Association of Chief Police Officers a right to nominate to the senior appointments panel and of the power of ACPO when it comes to sitting at the national table in the tripartite structure? In fact, you want a deletion of its role. Could you explain your concerns?
Shami Chakrabarti: This is not in any sense a concern about having senior police officers involved in this kind of process. It is a concern about the nature of the creature called ACPO. There is no clear purpose for ACPO. It is not a creature of statute. It is a private company. It is exempt from freedom of information legislation. It has no clear defined role in our constitution. In practice, it seems to have developed over the years to be a range of different animals. Sometimes it appears to be a campaigning pressure group in very sensitive, sometimes party political, debates about new police powers. Sometimes it seems to be something akin to a public body that issues guidancefor example, on very sensitive police power matters. Sometimes it seems more like a staff association for chief police officers, who obviously need to communicate with each other and share expertise and experience.
There is a need for all those functions, but we think there is a real concern about ACPO being all those things. In particular, it has become one of the most powerful policing organisations in the land and it is not a creature of statute. Parliament has never taken the opportunity properly to define its role. It is possible that its roles cannot all live in one body and it is time to grip the issue and decide that it perhaps is a number of different bodiessome that are properly regulated by statute and others that are a matter for the police themselves to organise as a staff association or pressure group. It is dangerous, therefore, to give it further power without taking the opportunity to define what it is and what its role should be in modern policing.
I will stay in order, Sir Nicholas, because part 1 of the Bill is entitled Police Reform. Therefore, Libertys observations, which I think are noteworthy, go to the heart of the tripartite structure, but I notice, Ms Chakrabarti, that you have not taken the opportunity to lay down any amendments. Is that because you do not want to start unpicking the tripartite structure as such? You are saying that there are certain functions that you do not think ACPO, as currently constituted, should be involved in, such as senior appointments. Would that be a fair summation?
Shami Chakrabarti: Absolutely right, sir. We do not take principled objection to the tripartite structure, but we do have concerns about the role of a modern police force in a modern democracy. We see it as a vital agency that serves the rule of law, rather than serving the Executive at local or central level. Ultimately, the police are servants, in a way, of the statute book. Through the statute book, you and your colleagues here communicate directly with each police constable doing their job in the land, and through the statute book you also, hopefully, communicate clearly with people who are helped and, sometimes, rightly hindered by the police. That is in the best traditions of policing in this country. ACPO may well have a role, but its current role has just developed without the proper intervention of Parliament. It is a creature that has grown up organically. It is a company that largely regulates itself, but at the same time is given more and more statutory power.
ACPO has an interesting governing structure. When you look at its website and speak to its members, it does lots of things that many people would not think that it does. I shall move on from that. Clause 11 gives new powers to Ministers to make directions, and I note that you fear that that centralisation could lead to unwelcome politicisation. Let me put the counter to that, the case for the clause and something that Liberty might like. It would give Ministers the power, for instance, to direct that there could be, as suggested in Ronnie Flanagans interim report, a national suite of forms for the police, with minimum reporting requirements, so there would be a standardised set of forms across the country; saving police time and creating clarity for defence counsel, and lawyers generally, to rationalise the system. The only way in which that can be done is through centralised control. That would not be politicisation. What objection would you have if the power were used to have a national suite of forms?
Shami Chakrabarti: There would not be an objection to that use. All or most broad powers in statute are capable of good and bad use. Our point here is a general fear about Executive power over policing, rather than parliamentary legislative power, for example, or other types of power over the police. We think that there has been too much Executive control of policing in recent years and we would like to see that tide turned. Anita Coles might have something to add on that.
Anita Coles: This allows the Secretary of State to direct just one police force to do something. That raises the potential for the Executive to impose its will on one police force only, where there may be questions about whether it is performing well. This is a potential problem that we wish to raise.
May I turn to part 2 and the issues relating to sex offences and prostitution? Mr. Lodder, on the new offence of paying for sexual services of a prostitute controlled for gain, we have already heard quite a bit of concern about the drafting and whether as drafted it would be enforceable in an effective way. Could you give us your views, as an esteemed lawyer, on what the profession thinks about how those words will be interpreted in practice, and how the police will interpret them?
Peter Lodder: Our concern is that, first and foremost, this is creating what we call a strict liability offence, so it matters not what the manas we shall assume it is for these purposesknows when he enters into a transaction of this sort. Even if he were to make inquiry as to whether the prostitute is in fact being controlled for gain, he would not be acquitting himself of any charge. The nature of this type of relationship is such that it would be impossible, even if one was to pursue an inquiry, to discover whether the person was controlled for gain, so one can understand the rationale behind making it a strict liability offence.
The difficulty, it seems to us, is that inconsistencies are created, for example, by the fact that the offence is not limited to commission within this jurisdiction. There are inconsistencies in the sense that if one were to go to a country where prostitution is legal, such as the Netherlands, one would still be committing an offence in this country. It seems to us that that sort of inconsistency is an undesirable feature in a piece of legislation in the type of world in which we now live. Moreover, the purpose behind this would appear to be to try to reduce prostitution. We are not convinced that this is necessarily the best way in which to go about it. It is a very heavy-handed way of doing it. Is the real objective here to stop prostitution, or not? Is it a question of saying that if you pay for sex then that must be criminalised, or is itas this isan attempt to try to get to those who are behind prostitutes? Our fear is that we will not achieve either of those things because of the way in which the clause is currently phrased.
Our concerns are that individuals will be convicted without knowing what they are involved in. Alternatively, this will not lead to any prosecutions because the information will not come to light. Bear in mind that this is the source of income for the prostitutes concerned. In those circumstances, we feel that at the very least there should be an element of intentional knowledge or belief on the part of the person who would be prosecuted under this clause.
Peter Lodder: I think it would, but the trouble with the offence as it is now is that although it would be, in one sense, easy to prove because of the strict liability nature, we run the risk of creating the inconsistencies that I have already pointed out. Moreover, if prostitutes know what is happening, they are very unlikely to give the sort of information that will lead to a prosecution.
Shami Chakrabarti: I have little to add to the Bar Council. We are concerned about prostitution. If you are a human rights advocate, you take no joy in the idea that people should be bought and sold for money, but one has to take great care in this area to ensure that use of the criminal law is helping the problem and not making it worse. We share the concerns about an offence that is unclear as to whether it is an offence that is banning prostitution, or whetheras it would appear on its faceit is about attempting, laudably, to tackle the pimps, the traffickers and the controllers of women. If that is what you seek to do, strict liability is difficult. I do not just mean from the point of view of the punters. It is not just about fairness and arbitrary results against the customer. If you seek to protect women from pimps, traffickers and controllers, you need to impose some kind of obligation on punters to take some care as to who the woman is and what the circumstances are. If it is strict liability, you do not do that.
We also have real concerns about the closure orders, and the dangers of making women and their children and families more vulnerable, rather than protecting them.
We all know about the problems with strict liability, but if we do not use strict liability because it is difficult to work, how would Liberty draft an alternative clause that imported some notion of intent on the part of the man? In other words, let us talk about this Bill and trying to make it better. Could you with all your skillsand the Bar Council as welldraft an alternative clause that would import some notion of intent to get away from strict liability?
Shami Chakrabarti: If there is to be an offence, those who draft criminal offences have various choices to make about what element of intention there should be. At one end of the scale, an offence such as this would include intention in all aspectsan intention to pay for sex, and full knowledge about the personal circumstances of the woman concerned, which is difficult to prove. You have made that point. Short of full intention, there is also recklessness, where you were reckless as to the circumstances of the woman. Short of recklessness, there is negligence, where a reasonable person would have believed that the woman in question was being controlled. At the other end of the scale, you have the present offence, which is strict liability. I say to you as legislators that all those options of intent are always available to you when creating a new criminal offence.
We have spoken to a number of sex workersI certainly haveover the past two weeks who have chosen to be sex workers as their way of life. That is what they want to do. You went on to talk about the closure orders and what you felt they would do. Will not some of the measures laid down in the Bill further impinge on the rights of those women to carry out their trade? I was trying to think of a way of putting it, but that is how they describe it, as carrying out their trade. Should we not be moving the emphasis of the Bill? Could it not be drafted to move the emphasis away entirely from the women? I am thinking of the closure orders and the issue of the three meetings. We have heard from sex workers that many will not and do not want to attendthey regard it as coercion. They would like more in the way of voluntary help and assistance, if they could have it, but they do not want to attend the meetings or to have closure orders. Do they not have rights as well?
Shami Chakrabarti: My experience of non-custodial sentences, not just in the context of prostitution, but in that of probation, community service and so on for a whole range of offenders, is that such orders work best when those subject to them want to comply. That is even more the case when talking about engagement and addressing why it is a person is offending, and what they might do instead of offending. When talking about something akin to counselling or training, in my experience those sort of activities work best when there is an element of voluntary engagement.
That said, to be honest most sex workers do not choosein the sense that I chose my work or you chose yours. Some may, and no doubt you have spoken to them, but my view is that it is not a free choice for most of the women that I have met, in the sense of really having a choice in their economic, family or social circumstances. If there is to be sentencing of women and it is to involve counselling and so on, I would prefer to see that the person had consented, as part of the condition of making the order. I much prefer this type of order to custody, fines or some of the traditional disposals that send a woman straight back out on to the street.
I have concerns about the phrase controlled for gain because, from what we have heard in previous evidence, there will be circumstances in which women in a brothel would be happy with that arrangement, because it is a safer way of operating their trade. Technically, they are in control of the gain, because there is someone there answering the telephone and sorting it all out. So, while the Governments intention to tackle trafficking is entirely laudable and desirable, the catch-all controlled for gain will be more likely to attack or cause a problem for the better forms or organisation of prostitution. Is there another phrase that could be used, Mr. Lodder, other than controlled for gain, which could get the traffickers rather than the blanket?
Peter Lodder: I cannot provide a phrase at the moment, but I would be very happy to think about it after this session and assist you if I possibly can. The phrase you have lighted upon is undoubtedly a difficulty because it is so broad. The ramifications are that, where people come together as a collective so that they may conduct their trade in safe and comparatively secure surroundings, with the interest being mutual gain rather than the advantage in the way that we perceive itin terms of traffickers, pimps and so forthwith the advantage residing with the workers themselves, there is a danger there, I entirely agree with you. That is the consequence of what is rather loose drafting. I would like to think about that, if I may. If it is helpful to you, we will make some submission with that very much in mind.
To come back to the early point made by Mrs. Dorries, there is a difficulty, when you consider the range of people who may be said to be prostitutes. Depending on your definition of the word, a prostitute it is someone who provides sexual services for some form of reward. Exactly how you categorise that can become rather difficult. There are people who make observations about people who are content with going out for the evening on the basis that they will have a jolly evening. There will be a payback at the end of the evening, but they are prepared to go through that for the benefit of the night out. At the other end of the spectrum, there are people who deliberately go on to the streets to have sex with the first person who turns up on the basis of the simple handing over of money. To find a happy medium which is susceptible to statutory analysis in this way is difficult. It becomes even more difficult when you talk about, as you did, a number of people who have said, This is what we choose to do, assuming that that is a genuine expression on their part. We are concerned that these clauses will impinge upon a lawful and consensualso far as they are concernedtrade.
Is the objective here to stop prostitution? Is it to stop punters, and therefore stop prostitution? Or is it to stop those people who manipulate women and, therefore, do not involve the women whom you are talking about, assuming for the moment that they are plying their trade in a way that means that they are not being manipulated? It may be that there is not that distinction. They may be happy, in reasonable terms, to work in that way, knowing that they are manipulated. A lot of people, in their ordinary, lawful, workplaces, feel that they are being manipulated, but it is a job that they consent to do.
There is a danger in looking to frame legislation with a small group in mind. My impression is that the vast majority of women who work in this trade do not do so in the sort of spirit that you have indicated that some of the people you have in mind do.
May I start with some questions for Liberty? You object to the clauses in the Bill that give the Home Secretary power to direct different police forces to do certain things, so you seem to be saying that the relationship between police authorities is okay as it is now. You also object to clauses in the Bill that require police authorities to take into account the views of local people because you say in the briefing that you provided on Second Reading that the mechanisms already exist for that. You seem to be arguing that the system is perfect as it is and the police are perfectly accountable in a balance between the Government and the people.
Shami Chakrabarti: Obviously I do not agree with that analysis of our position. The system is far from perfect as it is, but we are not convinced that perfection will be achieved or even come closer to being achieved by some aspects of the Bill. The objection to the rather vague and general duty to consult the people is not because the people are not important, but who are the people, in real practical terms, for the purpose of the consultation? When you create statutory duties you need to be clear about what is involved. The provision could lead to legal challenge, if the people do not feel adequately consulted. We prefer, in relation to that aspect of local democratic involvement, the police authorities model.
In relation to the Home Secretary directing constabularies, we have a real concern that that is potentially direct Executive control of a chief constable. Of course it could be used in a perfectly laudable case in which something needed to be done and the Home Secretary would sweep in and do it; but it could also be used in ways that are less benign. That is the point about creating broad powers for Executive direction of policing in a country with one of the strongest and most robust democratic police traditions. I do not need to give the Committee a history lesson on the origins of policing in this country, springing from the citizenry and closely linked to the magistracy. From the outset the police were servants of the rule of law, rather than servants of governmentlocal or national.
Anita Coles: We have a problem with the way the provisions are drafted. We do not think that targeting young people in that way is helpful. There is the power to remove children under the age of 16, if they are in possession of alcohol, to their place of residence or a place of safety. There are already powers that allow police to move children on in certain circumstances, and there are already criminal offences and public order offences that would apply in those instances. We do not see that it is necessary to increase the powers of the police to act in that wayor that it is helpful.
As to criminalising children who are in possession of alcohol on three or more occasions in a 12-month period, we do not see that that will help to solve the problem. If there is a problem, and it seems there may be, it is a child protection issue. It is not a matter for the criminalisation of children. Putting them in the criminal justice system for possessing alcohol does not assist in reaching the intended objective.
Amending the Violent Crime Reduction Act 2006 to allow police to move on children between the ages of 10 and 16currently it applies only to those aged 16 and over, and we already have problems with the way police are using itis also part of the over-broad, unnecessary process by which children are being caught up and targeted by police. It is not helpful.
On Tuesday when we took evidence, particularly from the police, a defence that emerged was that they would not be criminalising young people at random for possessing alcohol three times in a year in a public space, because they would be getting the hardened characters, rather than anyone at random. By definition those random cases would not crop up three times in the same area.
Anita Coles: I think that, yes, it is illegal for a 16 or 17-year-old to be drinking, so they should not be drinking, but the reality is that a lot do. That does not make them criminals, in the sense that we would think of it; three times in one year is not actually that much. It does not seem that this will help with the problem of teenage drinking.
I want to turn to the Bar Council and the issue of the proceeds of crime. On Tuesday, we took evidence, in particular, from the police, who put forward a very convincing argument for why they need more powers to seize assets from major criminals whom they are investigating, because many assets disappear over the one, two or three-year period that an investigation takes to reach its conclusion. You expressed some doubts about those provisions?
Martin Evans: The restraint provisions in the Proceeds of Crime Act 2002 permit all assets of somebody who is either under investigation or later a defendant in criminal proceedings to be restrained. That is subject to the scrutiny of a judge. The new proposed powers suggest that items of property can be detained pending a prosecution and, ultimately, a confiscation order. The drawback of the restraint-based system is that, although a person is restrained by the court from disposing of property, assuming that an order had been made, it does not prevent an individual from disposing of that propertyit simply exposes him to punishment by way of proceedings for contempt. The polices concern, therefore, is a real and reasonable one.
The current system puts the onus of preserving the assets on the person suspected of committing a serious crime. The Bar Council has no objection to the principle that, in effect, personal assetscars, jewellery or household effects, and other such thingscould be detained under this power. The Bar Councils particular concern is that there is the scope for a lower tier of de facto restraint order not subject to the scrutiny of a judge where an application could be made to the magistrates court for particular items of property to be detained, and possibly for a very long time. It appears that the intention is that an application would be made where property is detained, under the new search and seizure powers, either for a restraint order, which would come before a judge in the Crown court, or to vary an existing restraint order, for which there is a 48-hour time limit. The proposal permits, on an application to the magistrates, the property to be detained indefinitely. That is a concern, because, as I said, it introduces a lower tier.
As far as the Bar Council is concerned, there is no particular evidence that the restraint system, per se, is not working. Scrutiny by a judge is important in our submission on this area, because we are dealing not necessarily with the proceeds of crime. It might be that the individual is suspected of having committed a crime, but the proposals would cover, for example, a family heirloom. It would cover jewellery handed down through generations, in respect of which there could be no possible or realistic claim that it is or represents the proceeds of crime. However, it might be an asset that ultimately, should a confiscation order be made, would be available for the satisfaction of that confiscation order. At the moment, there is a balance between retaining the property by way of a restraint order and permitting the individual to enjoy the use of it pending the making of that order. In many cases, of course, there will be no conviction and so no confiscation order. The concern is that, although that might be a necessary power, it should be monitored strictly by a judge, rather than devolved down to the magistracy.
This is going to hang in the air a bit, because we have moved on, but following Julies point about controlled for gain, and your offer, Mr. Lodder, to find another phrase, I have to ask whether we actually need one phrase. All we need do is define controlled and separate it from assist or organise. The English Collective of Prostitutes talked about this on Tuesday. Even now, apparently, women who are buddies in a flat are being caught up in the controlled aspect. Do we need to go so far as to find a different phrase, or do we need simply to define what controlled means, and separate it from assistance and organising? I believe that there has even been an issue with people organising a rota. Do we need to go so far as to change the wording and have an additional phrase?
Peter Lodder: That might be possible, yes. That is why I have accepted the invitation to consider this and come back to it. If I understand your question correctly, to maintain the phrase controlled for gain seems, to us, to allow the problems that I have mentioned to continue. It is too broad, and it does not have the definition that we understand is the purpose of this clause.
On alcohol concerns, and the point you have made, Anita, I took evidence yesterday as chair of the all-party group on alcohol misuse, and I think that if anyone found a young person aged between 10 and 15 drunk three times in a year, it would be quite significant. When you think about the release of figures today in the new Government document, it is quite significant. If young people are arrested or moved on, or if there is some form of police intervention, for want of a better phrase, that will allow early intervention from alcohol groups across the country. There is an Aquarius-run system in my constituency, and across Dudley, where young people who have been arrested are referred straight to an alcohol-concern intervention group that will work with them. They welcome that intervention, because it is their best way of connecting with young people with those problems. There is an alcohol-referral arrest system, and I know that my hon. Friend the Minister, Vernon Coaker, has had people come and talk to him about it, and that it has been tremendously successful. I do not think that we can dismiss how useful it could be to identify young peopleeven if it is three timesand refer them to such services.
Shami Chakrabarti: I completely agree with you, Ms Waltho, that it is a serious matter that so many young people are drinking, and drinking so much, in Britain today. The question is whether that should be a criminal justice matter, a child protection matter or a public health matter. We see it more as the latter, rather than a criminal justice matter.
Two things follow from that. The first is that, if at all possibleit may not always be possiblewe would like young peoples first engagement with the state, particularly on matters of their health and protection, not to be with policemen as babysitters. It is not the police at their best, and it is not us as a country at our best, if children are vulnerable, drinking or being neglected by their parents and the first port of call, and first engagement, is the police. Sometimes, I agree, that is unavoidable, but it is not the ideal.
The second point is that making it an offence would open up prosecution, as opposed to all the wonderful encounters that you have been describing, as the statutory course and option. As I said, we do not rule out the possibility that there will be such occasions under the existing law, including the law of child protection. The police already have a great many powers to move on and arrest both adults and children.
Generally speaking, Libertys approach is that if the problem that you are trying to address in a particular situation or community is crime and disorder, the power to arrest on the basis of crime and disorder can be the same, whether it is an adult or a child. If you feel that you need additional powers in relation to children, those powers should be predicated on the childs vulnerability and the need to protect them, not an additional antisocial behaviour dispersal/alcohol power because that person is a child.
Why are you using that power and directing it against a child on such an occasion? It is for one of two reasons: their bad behaviourfine, deal with itor their vulnerability. Be quite clear in your mind as legislators what power you need on that occasion, and things follow from that.
I wanted to take up the point about taking the local communitys views into account on policing, because some of what you have written sounds almost counterintuitive. My question is similar to Ms Walthos. Can we, perhaps in a statutory instrument, define what we mean by taking views into account, or at least give examples?
I want to press that point because of my experience of setting police policies in a local area, particularly on licensing, for example. Police might have a particular view of what should happen in the area, but the local community might know more about the local fear of crime and what should happen to protect public safety. They might know more about the movements of people in the area and how to protect children from harm, and can give the police a lot of information that leads them to make a different decision. That is not to say that police authorities are not effective or representative, but a lot of the time, there is something to be gained from taking local communitys views on board. Rather than throwing out the measure, should we try to define what is meant by taking views into account, perhaps by listing examples?
Shami Chakrabarti: Yes, I completely agree. Of course there is a role for consulting local people. I emphasise consulting because it is about consulting, not about saying, Who shall we arrest this week? Lets have a vote, perhaps on a reality TV show. Shall we let Barabbas go free, or somebody else? That is a silly joke, but it is also a serious point about the rule of law, which cannot always be dealt with by majority vote at either the national or local level.
None the less, your point is incredibly important. There needs to be public confidence at the national and local level. People have local knowledge about what the problems are. As legislators, if you are creating a duty to consult the publicand it is a duty that theoretically therefore should be enforceable and could be litigated onpeople should be able to bring a judicial review if that statutory duty is ignored. You are completely right that the Bill should be clearer about what the process of consultation is and who the relevant people are. That means creating a clear mechanism that sets out what the consultation involves, which people are to be consulted, and by what route. The police authority structure is one way of doing that, and there are all sorts of other things that you could do. However, I do not think that a vague and broad duty to consult people achieves your objective.
While it is fresh in our minds, the point made by Lynda Waltho was that if controlled for gain was better or perhaps more narrowly defined, the provision would be improved. At the moment, the definition comes from section 53 of the Sexual Offences Act 2003, which simply states, Controlling...for gain, then defines gain. Recently, the case of R v. Massey in the Court of Appeal ruled that control for gain did not require intimidation, force, coercion, threat or a fear of any of those thingsit went wider than that. Do you think there is an argument for narrowing the definitionat least in respect of section 53, but certainly in the Bill? That would leave a separate, wider definition of child prostitution, in relation to which organising a diary and all of that ought to have a wider definition, as opposed to adult prostitution, which might be quasi-consensual.
Peter Lodder: If you make a definition more precise, it is helpful, because it is clear, but if you narrow a definition, the objectives of the clause might fall outside that. The thinking behind the Court of Appeals position is not that the definition should be narrower. If you are suggesting in this proposed legislation that it should be narrow, you need to think through the ramifications. It may be that one would like to review the entire phrase, because if the phrase has a connotation already, you might want to pick a different phrase so that your objective is achieved. In a sense, that comes back to the offer that I made earlierwe would like to think about it and see if we can assist you. I am reluctant to draft on the hoof, as it were. A great deal of thought goes into these Bills and a momentary response to your question would probably not be helpful in that context. Accepting those precepts, it may be a way of dealing with the issue, yes.
It is peculiarand I would like your view on thisthat there is an offence of running child prostitutes, which has an intentional element and does not further define controlled for gain. There is arguably the less serious issue of something that is not trafficking but is intimidationpimping, essentiallyand is covered by controlled for gain. Then there is arguablycertainly the system of penalties in the Bill suggests thisa less serious offence still of having sex with someone controlled for gain. It is the latter offence that is strict liability, and does not require intention. The definition of controlled for gain is, nevertheless, the same as something more serious, including trafficking and child prostitution. Is the imposition of strict liability in the least serious offence usual, or unusual, as far as strict liability is concerned?
Peter Lodder: In general terms, no it is not. Conscious of the fact it is a strict liability offence, the legislation imposes a strict liability only where the comparative punishment is to be a lower one. Obviously, the other examples that you cited are certainly, if only in moral terms, much more serious offences. If you increase the strict liability ambit across the more serious offences and therefore cause people to be convicted of those particular serious offences without even necessarily attending to the consequences, you bring the general culture of legislation into potential disrepute.
The corollary is that if someone is guilty of this offencethey particularly want to have sex with someone who is trafficked, so they know and have the intention of doing somany of the elements of rape are formed in that case. The penalty, however, is a £1,000 fine. It seems this offence is not particularly discerning, and does not differentiate between those people who have an intention and those who are subjectively reckless as to whether the person is controlled in a trafficked way, as distinct from mere pimping. Do you have a view on that?
Peter Lodder: This is a broad offence and it tries to encapsulate a number of different aspects of the problem. If you deal with it in this way, you get the problems that you have just highlighted and that is why we are unhappy about it. A way of dealing with it is to try to break down the objective. For example, if there is a situation that is more akin to rape, that will be dealt with. If you are talking about a factual matrix which is more akin to rape, maybe this is not the legislation under which someone should be prosecuted anyway. Maybe it should be under sexual offences legislation.
I do not know if Liberty have a view on that but, in any event, I would like to ask for its view on strict liability offences in the area of personal conduct, particularly the dangers of creating a scenario for other offences such as blackmail. If there is no defence, it seems to me that entrapment and blackmail would thrive, just as they did to a certain extent when homosexuality was criminal and there was very little in the way of defence. In certain parts of the country there was no defence as to, for example, mistaken age.
Shami Chakrabarti: Strict liability offences are bestand traditionallysuited to minor regulatory matters where there is little real argument about issues of judgment or intention and so on. It is just a matter of fact as to whether your factory was a fit and proper place for people to work and so on. There are other appropriate examples. Strict liability is a difficult device in the context of sex offences. As you observed, Dr. Harris, as a result, the offence necessarily in my view becomes quite limited in its penalty.
I make the following observation on the basis of your remarks and others from this Committee. You pointed out how broad the range of conduct and how broad the range of personal circumstances of the women concerned might be in the context of the strict liability offence. Mrs. Dorries told me earlier that she has met a few womenshe believes they are only a fewwho say, It is my trade; I chose it freely. Ms Waltho said that the Committee has heard from collectives of women who band together and protect themselves that way.
I could be misreading the Ministers body language, but from the nods and shakes of his head I understood, rightly or wrongly, that he was not seeking to attack those women in any sense in this Bill. This opens up the theoretical possibility, which was also discussed in terms of control of the gain, of attempting to separate these classes of women and indeed to separate the issue of people who are being trafficked and bullied and abused for someone elses gain as a public policy objective from those who, rightly or wronglyit is as old as time itselfhave made a judgment which is, perhaps, a bad and dangerous one. If that is the Committees thinking, and because drafting comes after policy decision making, there are umpteen ways in which a narrower formulation could be used to make the offence one that is not a sort of fudgeare we really banning prostitution or not?but one that places on those who enter the trade as customers a serious obligation to think about where the woman has come from and whether she is being trafficked or abused. That would not be strict liability, but the corresponding benefit might be a greater penalty that can flow because it is not strict liability, and perhaps, therefore, a real public policy benefit, rather than just a statement and a totem on the statute book.
The Bar Council, in one of its briefings, pointed out that a woman, by offering sexual services, might be assisting in the commission of the offence and therefore be guilty under the Serious Crime Act 2007; I think that you cited section 44. However, intentionality would have to be proved and there are extra defences, I think, with regard to action that was felt to be reasonable. You commented, in relation to that, on a double standard and the danger of extending criminalisation of prostitutes themselves.
Peter Lodder: Exactly. The objective on the face of the clause is to reduce, if not to extinguish, the trade by having the punters as the objectiveI mean the trade where there is somebody behind the prostitute. Our concern is that if one of the by-products of what you do is to expose the prostitute to an offence herself, because she will know whether she is being controlled or not, that is an undesirable by-product .
Before I hand over to the next questionerif there is time, I might come back to closure ordersI want to ask a non-Bill-specific question about extradition. There will be other questions, I am sure, on this subject. Are our extradition laws too wide in respect of the potential at leastthankfully, this was not shown in the recent Toben casefor people to be extradited from this country to another country for a speech offence that is not an offence in this country but is an offence in the other country, even when that person is a resident of a third country and the dissemination is mainly not in the country where it is an offence? Does Liberty have a view on that and whether the Bill would be a vehicle to seek to narrow the way we implement our extradition laws?
Peter Lodder: I am not an expert on extradition, so I will defer commenting directly on the point and allow Shami Chakrabarti to deal with it. Our view in general terms is that there is in principle an asymmetric relationship in some of the extradition provisionsfor example, with the United States. We are concerned about the very low threshold that is currently required to be met for someone to be extradited to the United States, but beyond our general principle position, I would not wish to comment at this stage.
Shami Chakrabarti: We have some very principled and general concerns about recent extradition legislation, and Anita has some specific concerns about the amendments on extradition in the Bill. First, the opportunity that the Bill provides in relation to extradition has not yet been taken. We have concerns about summary extradition full stop. We think that, even in circumstances in which someone will receive Rolls-Royce due process in another friendly democratic country, being taken from your home, your family, your country and your language, and legal aid and all the rest, and being taken to the other side of the world, even if what follows is a very fair trial in humane circumstances, is a serious matter for an individual and should not happen without a bare case to answer being shown in a local court. That is our principal position.
We also have concerns that in this age of globalisation and necessary co-operation between countries, in the age of the internet, and in the age where understandably and rightly countries assert criminal jurisdiction over activities that happen all over the world and in cyberspace, it is incredibly important that we have provisions in our law that ensure that judges are able to consider whether Britain is the appropriate place for someone who lives here as a national or otherwise to be tried; whether it is in the interest of justice and fairness that they should be prosecuted here rather than somewhere else.
We suggest that that should be addressed, and the Bill provides an opportunity to do it, although the point about speech offences becomes very pertinent in relation to the internet. It is a live issue in relation to the European arrest warrant, which we have concerns about. I do not have the legislation before me, but even given the existing law on the European arrest warrant, we think it is possible to revise the relevant schedule to the Extradition Act 2003 so that we do not implement the European arrest warrant arrangements to extradite people summarily on speech offences that would not be an offence here. Again, the Bill may be an opportunity to do a little tidying up that will spare potential injustice in relation to controversial speech offences in the future. I think that Anita has a comment to make on what there is in the Bill on extradition.
Anita Coles: The real concern we have is about the power in the Bill for the Secretary of State to give an undertaking to return a person to a country, either, once they are sentencedif they are sentenced in the UKto serve their sentence in that other country, or on return. The problem of course with that is that it now applies to anywhere in the worldany country: failed states and rogue states. It applies to UK nationals. The only limit is if it would breach convention rights; but there are obviously other issues, such as the interests of justice, and other international instruments, such as the refugee convention, that would be relevant. The statute does not say what will happen to the undertaking if the person is not able to be returned.
We have concerns as well in relation to the limitation and the Secretary of States undertaking. At the moment the provisions rely on whether the Secretary of State thinks return would breach the convention; we think it should be a matter of law whether it would breach the convention and other international treaties, and would be contrary to the interests of justice. There is a real potential for injustice.
I just want briefly to clarify something. I am sorry if my body language was so obvious.
In response to one of the points made in answer to Nadine Dorries, the Governments intention is not to ban prostitution. It is important to put that on the record. We have never said that a ban was a policy intention. We looked in Sweden at the idea of a full offence of paying for sex, and making any payment for sex illegal, and we thought that was not appropriate; we also looked at other models. It is not our intention to bring about a ban in a back-door way.
Our intention, which I know everyone on the Committee shares, as has been demonstrated by this mornings evidence-taking session, which has explored where we are rather than being confrontational, has been about how to end exploitation and the exploitative elements, where there is no free choice. Julie and others raised the question of controlled for gain, and we have lawyers who sayI am not trying to be funny about it, because Mr. Lodder has said something on that pointthat controlled for gain as defined in case law means what one would regard as the common-sense definition. It would not be where somebody is helping somebody else: organising, protecting, looking after them and so on. I am not a lawyer; that is the legal advice that I have had. Certainly, it is something that we are looking at. Controlled for gain is a key part of ensuring that we have absolute clarity of meaning. As the Bill goes through Committee and beyond, we will take up the points that Julie and others have made and look at them to give certainty, which will help if the Bill should be passed by Parliament.
Perhaps both Peter Lodder and Shami would like to come back briefly on that. As the Chair, I do not take part in these discussions, but we have heard what Mr. Lodder said about seeking to help the Committee. If he and his colleagues have any suggestions for draft amendments or on how the Bill might be improved, that is the purpose of these sessions and this Committee, and I know that the Committee would be most grateful. I say the same thing to Shami Chakrabarti. She is an experienced lawyer, and I am merely a humble politician in the Chair of this Committee. Mr. Lodder, do you want to reply to Mr. Coaker, the Minister?
Peter Lodder: It is very helpful to hear what the Minister said about the Governments intention and the thinking behind the use of particular phrases. I well understand why the advice has been given in the way that it has. Of course, all new legislation is an opportunity to improve. In so far as we can help in that process, we will.
Shami Chakrabarti: This has been a very pleasurable Committee. I have been in more antagonistic ones before, and I am grateful to the Minister in particular for his remarks about intention and his openness to look again in the light of comments made in this Committee. In relation to the provisions, including those on extradition and prostitution, this is not a titanic battle of intention or policy. It is really about a common cause and attempting to do something that is better rather than worse. That makes a nice change.
I would like to come back to asset seizure and what might be described as pre-emptive seizure. One of the arguments put forward is that there is some broad equivalence between the seizure of assets after arrest and how evidence might be seized. Do you agree that that concept of broad equivalence is appropriate?
Martin Evans: They are entirely distinct. Hitherto, the powers of the police and other investigatory bodies have, as you indicated, been to preserve evidence that may be used in trial. The existing powers of restraint permit the holder of the property to continue to enjoy its use and to hold that property pending the making of any confiscation order.
The new proposals will give search and seizure powers permitting items to be detained that may have nothing whatever to do with the criminal offence, as I have already indicated. There is a balance to be achieved between, on the one hand, permitting an individual who has not been convicted at that stage and ultimately may not even be charged with an offence at all to enjoy his or her possessions and, on the other hand, preserving assets pending the making of an order. That is why the Bar Council and I have expressed the concern that there should be any devolution of the power to magistrates rather than judges.
The proposed standard to justify a search and seizure is, in colloquial terms, that there is a risk of dissipation. That is the test applied at the restraint stage, but of course, as I have said twice now, property at the restraint stage remains in the hands of the owner, whereas in this it does not; it is detained. With respect, it is not unreasonable to suggest that property be detained where it can be shown that there is a real risk that otherwise someone will get rid of it. You cannot get it back once it has gone, and the gifting provisions under the confiscation structure in the Bill have the effect of deeming that property still to be available, even if it is not, which might have the desired result that the now convicted defendant has to find the equivalent value of the gift that he has given waythat which has gonebut of course that will not actually produce the money. There are concerns about that issue.
Another concern is that the confiscation regime is a value-based one, rather than one that focuses on the property. Where a confiscation order is ultimately made by a Crown court judge, the order does not attach to the property itself, but simply requires the convicted person to pay a sum of money equivalent, in general terms, to the total value of the assets. That individual has a choice of how to realise the money. For example, returning to the family heirloom, if he or she would rather not have to give up that item, they can raise money another way, if they are able toovery often, of course, they are not.
The detention provisions represent a shift from that value-based system to an asset-based one. There are concerns about that, but those would be ameliorated, at least to some extent, if the matter were in the hands of a judge, which is what proposed new section 41A would do where there is already a restraint order or an application is made to vary a restraint order. It is a balance. The proposal represents a shift from the current regime. It is an understandable one, but it needs to be scrutinised with care, which is something that a judge could do. Within the structure of the restraint orders, the defendant, or any third partysometimes a third party will be the one concerned about an item being detainedcan go back to the court and make an application to have that order varied or discharged. As far as the magistrates aspect is concerned, the proposal contains a power of appeal, but it does not entitle an individual who might be interested in the property to make representations at the time that the order is made. That again is of concern.
One of the explanations given to us, certainly in evidence this week from the police, is that the proposal is a tidying-up exercise and that case law has exposed certain areas where criminals have managed to get round the legislation and frustrate the intent. One of the areas of focus, certainly of previous recovery and seizure legislation, was in connection with convention rights under the Human Rights Act 1998 and the way in which they needed to be looked at and interpreted in the context of that legislation. Can you give any insight on the case law in this area? Equally, how would you view the human rights connotations impacting on some of the provisions that you have talked about and that, of course, are in this Bill?
Martin Evans: The concern is about an individuals entitlement to enjoy the protection of their possessions under article 1 of the first protocol. The courts have, hitherto, where they have had to deal with arguments in the restraint and confiscation field, come to the conclusion that the statutory regime is proportionate, because there is a reasonable degree of proportionality between the intention, which is to preserve property pending the making of a confiscation order, and the persons entitlement to enjoy that property, because of course he might not be convicted. In some cases, particularly where an order is applied for when somebody is investigated, where the case involves, for example, allegations of serious fraud, the order may be in place for considerably longer than a year. It is not uncommon for the order to be in place for 12 months, 18 months or two years in these situations. Where the person continues to have the property, the article 1 rights are not infringed, or at any rate, the infringement is proportionate.
To give an example of a car, it may or not be part of the prosecuting authoritys allegation that it has something to do with the crime, but assume, for the present that it does not. The individual could be deprived of that car, and the use that he or she gets from it, for a long time because there is a risk that the car might be sold in the meantime. It is certainly going to engage article 1 concerns more than they have been hitherto because of the shift from the individual retaining it subject to the courts order.
Ms Chakrabarti or Ms Coles, do you have anything to add in this area, in terms of the human rights issues, the impact of these provisions and safeguards that you may wish to see?
Anita Coles: We have to remember that people under this have not been convicted of any offence at this point in time. The thought of whether or not they have benefited from their criminal offence is on the balance of probabilities and not on the criminal standard. So people may go on to be acquitted of any charge. Their property may have been taken away from them for a considerable period of time and they are not guilty of any offence. One of the big concerns we have here is that it will be extended to apply when someone has been arrested, but not even charged, with an offence. The property can then be taken from them, so that the first and second conditions relate to arrest rather than to charge. The only other point to note, is that there are article 8 privacy rights, in terms of property. Courts have found that that is an issue that is engaged. So the right to private life and the home is something that also needs to be considered if taking away personal property and possessions that do not necessarily affect just the potential offender but also their families.
Anita Coles: I think it goes a bit further than just tidying up. It is giving new powers and more explanation is needed as to why that is necessary. The explanatory notes talk about having a code of practice to ensure that the exercise of the powers is conducted appropriately. I do not think that it is appropriate that monitoring that should be left to this sort of secondary mechanism. Parliament should consider the matter carefully before giving extra powers.
Martin Evans: The Bar Councils view is that several clauses within the Bill represent a great deal more than merely tidying up. It would be wrong to characterise it as simply sorting out problems that have arisen in practice. One final example with regard to cash detention is that it is proposed that a forfeiture order can be made on the application by an officer. It would be for the person whose cash it was, from whom it has been taken, to prove to the civil standard that the cash was not either recoverable property or intended for use in unlawful conduct. That reverses the burden of proof and puts it on the person from whom the money has been taken. With respect, that does not represent tidying up; it is a change.
Thank you very much. This is the appropriate time at which to bring our proceedings to an end. I thank our witnesses, Mr. Martin Evans, Mr. Peter Lodder, Shami Chakrabarti and Anita Coles very much for the assistance that they have given to the Committee this morning. They have given full, frank and most helpful answers to the many questions that have been asked and I speak on behalf of all the Committee from the Chair in saying that we are grateful for the help that you have given to the Committee.