 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates Criminal Justice and Immigration Bill |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee
Clerk
†
attended the
Committee
WitnessesCindy
Barnett, Chairman, Magistrates
Association
Sally
Dickinson, Chief Executive, Magistrates
Association
Christine
Lawrie, Chief Executive, Probation Boards
Association
Jan
Berry, Chairman, Police Federation of England and
Wales
Adele
Kirkwood, Secretary of Legislation Sub-committee, Police Federation
of England and
Wales
Ben
Summerskill, Chief Executive,
Stonewall
Alan
Wardle, Director of Parliamentary and Public Affairs,
Stonewall
Public Bill CommitteeTuesday 16 October 2007(Afternoon)[Mr. Edward O’Hara in the Chair]Criminal Justice and Immigration BillWritten evidence to be reported to the HouseCJ&I 02
Magistrates Association
CJ&I
280 Police Federation of England and
Wales
CJ&I 01 Mr S
Goldthorpe
CJ&I 03
Association of Chief Police Officers
(ACPO)
CJ&I 04 The Law
Society
CJ&I 05 Standing
Committee for Youth
Justice
CJ&I 06 John
Hamilton
CJ&I 07 Peter
Vian
CJ&I 08 Evangelical
Alliance
CJ&I 09 Dr. Graham
Wade
CJ&I 10 Barbara
Quarcoo
CJ&I 11 David
Hustler
CJ&I 12 Dr. James
Waddell
CJ&I 13 Mark
Reed
CJ&I 14 Robin
Ware
CJ&I 15 Catherine
Meirion-Jones
CJ&I 16 Gavin
Rendall
CJ&I 17 Timothy
Daniels
CJ&I 18 Bible
Theology Ministries
CJ&I 19
Adrian Huxham
CJ&I 20 Steve
Potts
CJ&I 21 Yvonne
Foley
CJ&I 22 Barrie
Jones
CJ&I 23 Adam
Nixon
CJ&I 24 Elaine
Naughten
CJ&I 25 Rev. G
Barrett
CJ&I 26 L
Phillips
CJ&I 27 Michael
Calwell
CJ&I 28 Jayne
Hamilton
CJ&I 29 Andrew
Prentice
CJ&I 30 Mandy
Bowen
CJ&I 31 Andrew
McClintock
CJ&I 32 Jeremy
Burdett
CJ&I 33 Andrew
Bailey
CJ&I 34 Michael
Gordon
CJ&I 35 Anthony
Goodall
CJ&I 36 Sylvia
Baker
CJ&I 37 Peter
Coulson
CJ&I 38 Kingsley
Dunn
CJ&I 39 Geoff
Ashton
CJ&I 40 Stephen
Early
CJ&I 41 Ian
Parkinson
CJ&I 42 Susan and
Sean Palmer
CJ&I 43
Mrs. N
Malcolm
CJ&I 44 Frank
Holmes
CJ&I 45 Roy
Moody
CJ&I 46 Stephen
Saulsbury
CJ&I 47 Peter
Badder
CJ&I 48 Richard
Haddow
CJ&I 49 Christopher
Dodd
CJ&I 50 Marcus
Honeysett
CJ&I 51 Emmanuel
Oladipo
CJ&I 52 T
Cripps
CJ&I 53 Catherine
Whitehead
CJ&I 54 Fred
Stainthorpe
CJ&I 55 Denis
Hayes
CJ&I 56 Kenneth
Payne
CJ&I 57 Derek
Harkness
CJ&I 58 J
Longstaff
CJ&I 59 R
James
CJ&I 131 Donald
Fleming
CJ&I 140 Stephen M
Smith
CJ&I 141 Enitan
Ogun
CJ&I 142 Jack
Ingham
CJ&I 143
Mr. S
Chikhlia
CJ&I 144 Michael
Whitehead
CJ&I 145 Philip
Aiston
CJ&I 146 John
Stanbury
CJ&I 147 Matthew
Shaw
CJ&I 148 John W
Young
CJ&I 149 Eve
Abe
CJ&I 150 Dave
Downer
CJ&I 151 Bilga
Fitzgerald
CJ&I 152
Christopher Thomas
CJ&I 153
Sallie Rothwell
CJ&I 154
Philip Hodson
CJ&I 155 Rev.
George Hargreaves
CJ&I 156
Dave
Taylor
4
pm
The
Committee deliberated in
private.
4.8
pm
On
resuming—
The
Chairman:
I think that we are ready to commence the public
part of proceedings. I welcome our witnesses. I remind hon. Members and
witnesses that we are bound by the internal knives that we agreed this
morning. That means that the first evidence session this afternoon must
end at no later than 5.15 pm, the second must end no later than 6.15
pm, and the third no later than 7 pm. I hope that I do not have to
interrupt either hon. Members or witnesses in the middle of their
sentences, but I will do so if necessary. We must stick strictly to
that timetable. It would be helpful to the Official Report if
hon. Members would remember to speak into their microphones.
We will first of all hear
evidence from representatives of two organisations: the Magistrates
Association and the Probation Boards Association. Welcome to our
meeting this afternoon. Perhaps it would be appropriate if you started
by introducing yourselves, from left to
right.
Cindy
Barnett:
Good afternoon. My name is Cindy Barnett and
I am chairman of the Magistrates
Association.
Sally
Dickinson:
Good afternoon. I am Sally Dickinson and I
am chief executive of the Magistrates
Association.
Christine
Lawrie:
I am Christine Lawrie. I am chief executive
of the Probation Boards Association. I am without my board chair
because he is sick, I am
afraid.
Q
6060
Mr.
David Burrowes (Enfield, Southgate) (Con):As a first
general point, I am conscious of the number of pieces of legislation
affecting your job at the magistrates court. What level of consultation
have you had in relation to the Bill and what is your level of
confidence that it will see an improvement in the magistrates
court?
Cindy
Barnett:
We have been aware of some, if not all, of
the provisions because this particular Bill could have been another
one. A lot of things have been hanging around for a long time,
particularly the youth justice provisions. From the point of view of
consultation, we are aware of it now and have put in a briefing,
whether or not it will produce an improvement. There are some things
that we welcome and, as you can see from the briefing notes, there are
some things that we have concerns about. I think that we have a neutral
position.
Q
61
Mr.
Burrowes:
Do you see the youth justice provisions and the
generic youth rehabilitation orders as an improvement, and in what ways
do you see them as
deficient?
Cindy
Barnett:
We certainly do not see them as a total
disadvantage. In some ways it is a welcome tidying-up because it brings
the youth provisions closer to those in the adult court. Having said
that, there are some concerns about whether they will confuse people.
Of course, everybody gets used to a change in legislation, but this
will cause a big change from a selection of things in the youth court
that have not been there that long. It is yet anther big
change.
We hope that
it will increase the flexibility of sentencing, which is something that
we always welcome. We would like to hear a little more about the detail
of certain matters as the Bill goes through and there are some
specifics that we are not entirely happy with. However, as long as it
increases flexibility and does not deprive us of any sentencing
options, we are content with the general
concept.
Q
62
Mr.
Burrowes:
A set of requirements is laid out in terms of
the rehabilitation order. In terms of your practical experience, how do
you see that being delivered? For example, do you see the drug
treatment
requirements and the fostering requirements
happening?
Cindy
Barnett:
Our only worry is whether there will be
sufficient resources. That is something that we are constantly worried
about. We do not believe that there are sufficient resources at the
moment, within either the adult or youth courts. Some of these
provisions are very welcome, but if they are promised and cannot be
delivered, that will be an extreme
disappointment.
Q
63
Mr.
Burrowes:
Just on one particular detail, you mention the
confusion concerning reparation orders—can you amplify that?
Within the requirements of our activity orders there is an element of
reparation that is made. Why would you say that the reparation needs to
be part of the rehabilitation
order?
Cindy
Barnett:
At the moment that we have a variety of
separate orders, of which the reparation order is one and the action
plan, as opposed to an activity requirement, is another. There are
separate sentences that we can impose at the moment. We saw the point
of the youth rehabilitation order as putting those separate
requirements within one community sentence. We did not quite understand
why the reparation order was left out. It seemed to us again to be an
element of possible confusion. We did not see why it was not included
in the same
way.
Q
64
Mr.
Edward Garnier (Harborough) (Con): Have you had any
reaction from the Government in response your
concerns?
Cindy
Barnett:
No, not as
yet.
Q
65
Mr.
Garnier:
Would you like to have a reaction from the
Government in response to your
concerns?
Cindy
Barnett:
We would certainly like to see our concerns
taken on board, whether that is through possible amendments or changes,
or whatever is said in
debate.
Q
66
Mr.
Garnier:
I tell you what, let us go as quickly as we can
through the areas about which you have concerns. You mentioned the
flexibility in sentencing, which you welcomed, but one of the things
that has been taken away from you is the possibility of a suspended
prison sentence for summary offences. It was suggested to us this
morning by one of the officials from the Ministry of Justice that far
too many people are getting these sentences, breaching them, and then
having to go into custody to serve the custodial aspect of the
sentence. I suggested to that official that perhaps one of the reasons
why they are getting suspended sentences for summary offences is that
they are persistent offenders and the courts have come to the ends of
their tethers and there is no other option than to give them a
custodial sentence, but the courts check it by making it a suspended
sentence. Is that your
experience?
4.15
pm
Cindy
Barnett:
That is certainly one way in which you can
end up with a suspended sentence. It need not only be a question of
ends of tethers and persistence. The offence can be so serious that a
custodial sentence is justified. Certainly, the option to step back
from that
and to impose a suspended sentence is one that has been used, we
understand, in larger numbers than was originally
forecast.
Q
67
Mr.
Garnier:
One of the things that the Government appear to
be fearful of is that, for good reasons or bad, they seem to be losing
control of the numbers of people in prison when there are not enough
places to put them in. They are looking for ways to reduce the number
of people being sent to prison by people within your association and
from the Crown court. Do you think that the abolition of your power to
give a suspended custodial sentence will have any bearing on the number
of people that magistrates send to
prison?
Cindy
Barnett:
There is an argument for saying that it
might possibly increase them because obviously before we impose a
suspended sentence we have to be certain that a custodial sentence is
appropriate and that we cannot step back to a community-based penalty.
Then if it is going to be custody, it cannot be suspended. So, if there
are cases in the future where we come to that conclusion and we cannot
suspend, it will mean an immediate custodial sentence. I definitely
cannot forecast the precise numbers.
Q
68
Mr.
Garnier:
May I ask a question of both the magistrates and
Mrs. Lawrie for the probation boards? One area within the
Bill dealing with youth justice that is a matter of
concern—whether everybody in the Committee shares that concern
is neither here nor there—is the compulsory fostering of
people’s children by the state. This is apparently designed to
improve the chances of reducing reoffending, particularly among
children from what I would loosely, and rather pejoratively, call
dysfunctional families. Do you, as a magistrate, and you, as a
probation board chief executive and someone who has been a probation
officer, have anything to say about the sensible nature of that
disposal and the ability of the state—be it a local authority or
a foster parent appointed by a local authority—to see this as a
good
thing?
Christine
Lawrie:
I can only give you a personal response. Our
association would not have an official view on that. It feels like a
good thing to do, but I would be sceptical about whether it will have
the sort of impact that people expect it to have. You would have to
take each case on its own merits, and there is a danger of the state
wanting to step in too quickly to intervene in people’s lives.
But I think it is a very difficult issue, because each case is very
individual and has its own particular merits. I suppose personally,
based on my experience as a probation officer, I feel slightly
uncomfortable about the state taking more and more powers away from
individual people to manage their own lives. It is extremely difficult
and there are individual cases where children really ought to have been
taken away and fostered more quickly. I can see both sides of the
argument.
Cindy
Barnett:
We made the point that we would definitely
expect very stringent safeguards to be in place. I am sure we would
not—as any bench—consider it unless there was very full
information and we thought that there was an overwhelming need. We have
a policy in the youth court that if there are overwhelming welfare
needs, the matter ought to be
transferred to the family proceedings court. That is something we are
very much aware of and in our view it would be something that would be
considered when it was necessary for welfare needs. That is something
that we obviously have to consider in the youth
court.
Q
69
Mr.
Garnier:
So, do I understand you correctly that you
already have a power to take children, or at least to recommend to the
family court that children should go into care or some other
place?
Cindy
Barnett:
No, I am sorry, we do not do so at present.
That happens to be our policy, therefore we understand the link between
crimes in the youth court and the welfare needs of the young person.
The new suggestion of intensive fostering is welcomed because we can
see that in certain extreme cases it could fulfil a welfare
need.
Q
70
Mr.
Garnier:
Although it is quite clear from a schedule to the
Bill that that will not happen unless the Secretary of State says there
are resources to make it
happen.
Cindy
Barnett:
Well, that comes back to the original
point.
Cindy
Barnett:
No.
Mr.
Garnier:
If no one else has any queries, may I ask the
ladies about violent offender orders, which a local authority or a
police officer can apply to the magistrates court to get? Do you think
that these orders to prevent people, apparently, from committing
murder, soliciting murder or attempting murder—what I have
described as “criminal injunctions”—are a good
idea?
Cindy
Barnett:
We see them as an extension of risk-based
injunctions, yes—civil orders with a heavy criminal penalty.
They are obviously something that are foreseen for someone who has
committed an extremely serious offence that would not have come near us
in the first place. Our feeling is that if we are to be given this
power, we do not understand why it is not available to the Crown court
as well, which would have dealt with the original
sentencing.
Q
72
Mr.
Garnier:
I do not understand that either. Does the
probation service think that it has adequate resources to cover violent
offender orders?
Christine
Lawrie:
I think that, if you looked at VOOs in
isolation, the answer would be “probably”, but I think
that you have to look at them as part of a longer list of extra
activities that may be small in themselves, but add up to a much bigger
resource demand. So, the literal answer to your question is,
“No, it probably would not make much difference”, but it
does make a difference when it is a small, extra bit of work that is
added to a pile of small, extra bits of
work.
Q
73
David
Howarth (Cambridge) (LD): May I go back briefly to clause
10 and the abolition of suspended sentences for summary offences? Can I
ask you to take us through how a magistrates court might
carry out a sentencing exercise in this type of case? The problem is
this: on the one side the Government say that if we abolish the
suspended sentence, that would encourage more community sentences; the
argument on the other side is that, on the contrary, if you abolish the
suspended sentence, you will get more immediate imprisonment sentences.
So could you take us through how a magistrate might look at a
sentencing problem of this
sort?
Cindy
Barnett:
I do not think that I will produce a
particular offence, but let us say that an offence has been committed
that is obviously serious and we are considering what to do about it.
We must assess the seriousness in terms of both culpability and harm.
We add those two together, with culpability being the driving force,
and we come to the conclusion that the offence is so serious that a
custodial sentence is the only one that can be justified—nothing
lower can be justified. That is a provisional view.
Then you reconsider and you may
hear personal mitigation and there may be further information. Whatever
it is, you are still considering after your provisional sentence and
you consider—this is not only in the Act, but in guidance from
the Sentencing Guidelines Council—whether or not you can step
back over the custody threshold and impose a high-end community
sentence. You may then come to the conclusion that, no, the offence is
so serious that only custody can do. Therefore, you are prepared to
commit the person to immediate custody.
Then the next question that you
ask yourself is this: can you suspend the sentence? Again, that is
stepping back, and it is very close to—it looks very close
to—a high-end community sentence. The guidance is that the
requirements that you attach to a suspended sentence order should be
fewer or less onerous than those that would be attached if it were a
high-end community order itself, because there is the threat of
prison—because you have imposed a custodial sentence—and
because the consequences of breach are liable to be different, with the
immediate sentence being activated upon breach as opposed to more
requirements being given if it were a community
sentence.
Q
74
David
Howarth:
Just to clarify this matter, the order in which
the decisions are taken is such that the decision to suspend or not
comes right at the
end?
Cindy
Barnett:
Yes.
Q
75
David
Howarth:
Because that, I think, creates the danger that
abolishing the power to suspend will not have the desired effect. Do
you see that as a
possibility?
Sally
Dickinson:
I think that we have to reiterate the fact
that in order to impose a custodial sentence of whatever sort, be it
suspended or immediate, magistrates must have concluded that the
offence is so serious that it warrants a custodial sentence. A
suspended sentence order is a custodial sentence—we cannot get
away from that. We cannot make it a community sentence by virtue of the
fact that the custodial sentence is not going to be served immediately.
That is why the removal of suspended sentence orders for whatever types
of offences will not affect at all the rate of use of custodial
sentences.
Sally
Dickinson:
Immediate custody,
yes.
Q
77
Mr.
Burrowes:
Is it correct that, if the provision were
passed, and if I came before a magistrate as a joy rider charged and
convicted of aggravated vehicle taking in a case in which the damage
caused was £4,999, such that the offence was summary only, the
magistrate would not have power to suspend the sentence, but that if
the damages were £5,000.01, the offence would be an either-way
offence and the power would exist? How would your members react to the
lack of discretion concerning criminal damage worth less than
£5,000?
Sally
Dickinson:
I imagine their reaction would be that if
that was what the legislation said, it would be a matter for
Parliament.
Q
78
Mr.
Garnier:
The trouble is that the legislation is being
created, I would suggest, partly in ignorance and partly for political
motives. There is nothing wrong with that—it often happens.
However, given that under this new procedure there is the opportunity
to get your advice, we should be grateful to have that advice. There
are three Ministers listening, so if, as an experienced magistrate who
represents your association, you have views that you think ought to
influence the design of the legislation, I for one would be very
grateful if you unburdened yourself of your concerns. There is no point
passing laws—this Government pass lots of them—that do
not achieve anything. Perhaps you could help us to design a piece of
criminal justice legislation that actually does some
good.
Sally
Dickinson:
Well—
Sally
Dickinson:
I apologise if you
feel—
Sally
Dickinson:
The legislation that applies to the amount
of criminal damage caused exists elsewhere, of
course.
Sally
Dickinson:
Magistrates will seek maximum discretion
in sentencing. They do not want to impose sentences or make decisions
that an ordinary member of the public might find completely bizarre.
However, once legislation has been passed, they are bound by that
legislation and will, of course, obey it. Nevertheless, maximum
discretion is always
wanted.
Cindy
Barnett:
Just to pick up on that, in your example
about the driver, I think that the bench involved would follow the law
absolutely in both cases in relation to sentencing, but would be very
aware of the anomaly caused by the legislation. As a general rule, as
has been said, we would prefer more rather than less
discretion.
Q
79
The
Minister of State, Ministry of Justice (Mr. David
Hanson):
May I follow up on one more point on clause 10
before the hon. Member for
Cambridge continues? The points that have been made will obviously be
subject to debate in Committee. However, I was interested in your
submission on clause 10, in which you
said:
“We
accept that there may be a need for further training on SSOs to
re-emphasise the fact that they are a custodial
sentence.”
That seems to
me to indicate that, irrespective of the proposals in the Bill, there
are currently some identified problems in relation to the understanding
or implementation of suspended sentence orders. Could you outline what
those concerns
are?
Cindy
Barnett:
It is not a question of awareness of
problems, but of awareness of statistics, which as we all know can be
interpreted in various ways. Numbers are floating around that seem to
show that while there is a high number of suspended sentence orders,
the number of—I must get this the right way round—the
wrong one has gone down. It seems to imply that in some cases a
suspended sentence order was imposed whereas, in the past, a community
sentence order would have been imposed. The difficult with that is that
all cases are different, however, so it is extremely difficult to
confirm that impression. We have said that because of the importance of
the principle that a suspended sentence order cannot be imposed unless
the custody threshold has been crossed, we certainly accept that an
element of refreshing in training is always valuable. That is an
important lesson that we should have firmly before us on every
occasion.
Q
80
David
Howarth:
May I briefly move on to clause 58, which
concerns the extension of powers of non-legal staff—designated
caseworkers—in court? Obviously the objections to it come,
principally, from the trade unions for lawyers, or the professional
bodies, as they are otherwise known. I was interested that the
Magistrates Association also has had concerns about the extension of
the role of non-professional-body staff in court. I wondered if you
could explain the basis of your concerns to the
Committee.
4.30
pm
Cindy
Barnett:
That is a very practical point. We have
experience of designated caseworkers who are not able to continue with
a case in court because a particular legal point has arisen or there
has been a change in the circumstances which they are not able to deal
with owing to a lack of qualification, or some other reason. In that
circumstance, there is a delay. In some cases it matters less, if you
can swap a prosecutor in one court with a DCW in the other; but if
there is only one person in a court who is not available to switch
over, then a list may simply be shut down, which is absolutely
absurd.
Our main
concern is that anyone who presents a case to us in court should be
sufficiently qualified and experienced to do it well, and not to have
to withdraw because of practical difficulties or lack of qualifications
or experience. We are very concerned that the extension will cause more
problems of that
sort.
Q
81
David
Howarth:
As I understand it, the Government’s
position is that that sort of problem will be reduced if the powers are
extended rather than left
as they are. In practice, at what point or in what sort of
case does the problem arise, and could you argue that
by giving more power to designated caseworkers, you will come across
fewer circumstances in which the particular problem of transferring
cases might come
up?
Cindy
Barnett:
I think that we are talking about the length
of pieces of string. We know that problems occur at the moment.
Extending the powers would obviously alleviate some of those, but this
seems to be a question of extending the powers so that more can be
taken on, and is therefore a recreation of the same problem. Unless you
are going to give designated caseworkers all the powers of fully
fledged Crown prosecutors, in which case there is no difference, there
is obviously going to be a gap and a
difficulty.
Q
82
Mr.
Burrowes:
On the subject of referral orders, could you
expand on the issue that you raised in your written submission about
the lack of discretion in respect of the relatively serious cases of
those who have committed first offences; they will receive either a
referral order or custody, and there are no options in between for a
constructive community
sentence?
Cindy
Barnett:
Again, that is a long-standing point of
ours. We understand the point about a first-time offender who has
pleaded guilty, and we operate a limit on discretion at the moment, but
we are more and more concerned about the fact that when there is a case
that is on the cusp of custody, or merits custody but we could step
back, there is nothing that we can
do.
Cindy
Barnett:
Violence. A robbery case, for instance.
There are gradations of robbery. It is possible for that not to result
in a custodial sentence in the youth court, although very commonly it
does.
If a case merits
near-custody, it is extremely serious but we strain every nerve in the
youth court not to send young people in to custody unless it is
inevitable. If it is a first-timer who has pleaded guilty, our option
is a referral order and that simply seems far too far down the scale.
Even with promises of it being beefed up and made much more serious, we
are still handing the case over to another group of people. That is
what our court order entails: we make a referral order and it is sent
off for a contract to be drawn up and reparations and things like that.
We do not think that the referral order covers it, and we think that if
there was more flexibility at the top end, so that there could be a
serious high-end community sentence, it would reduce custody figures in
the youth
court.
Sally
Dickinson:
I have to say that that has been our
policy since referral orders were first introduced and we have not
changed our view in all that time. Magistrates, again, are looking for
the discretion and flexibility to use the appropriate sentence and we
cannot understand the objections to that
policy.
Q
83
Mr.
Nick Hurd (Ruislip-Northwood) (Con): On that point, I have
heard exactly that frustration expressed to me directly by magistrates
in Uxbridge. May I press you regarding your statement that you do not
understand the response to your policy? What is that
response?
Sally
Dickinson:
To be honest, the Government appears not
to have wanted to move away from having the referral order, apart from
at the lower end and the upper end. From our point of view, the
response has not been satisfactory, if I am to be absolutely
honest.
Sally
Dickinson:
Certainly.
Q
84
Mr.
Garnier:
Thank you. I want to talk a little bit with
you—indeed with both sets of witnesses—about the
cautioning system that the Government are altering by this legislation.
Are probation employers and magistrates broadly in favour of the
greater use of non-court disposal by police officers and officers of
the Crown Prosecution Service of work that has in the past come before
the magistrates court?
Sally
Dickinson:
Resoundingly, no. We have a clear position
that we think that it is wrong, we do not wish it to be extended and we
think that it is wrong that it should be extended to 16 and
17-year-olds.
Sally
Dickinson:
In our experience, not just guessing, we
have heard too many examples of various types of order—not just
conditional cautioning, but fixed penalties and penalty notices for
disorder—being imposed for serious offences; offences that we
feel merit a court
appearance.
Christine
Lawrie:
I think our observation would be that the
sort of people that these kinds of cautions are likely to be applied to
are the sort of people that we deal with anyway, and by and large they
tend to be unskilled and inexpert in dealing with those kinds of
engagements. They are very used to dealing with the police, but they
cannot make judgments about whether they are in a situation where
perhaps they ought to be pleading not guilty and going to court. They
may be putting themselves in a position where they allow themselves to
be cautioned, when perhaps they should not.
Although as an association we
do not have a particular line on this issue, and in some senses you
could say that it takes work away from the probation service and eases
the pressure on it, I do not think that we would take such an
unprincipled view. We would want people to be almost forced to go
through a proper process, so that they get a proper, just treatment. It
is not that we want people to get off, but the system should not allow
them to make the wrong choice at the wrong
time.
Q
87
Mr.
Garnier:
Beyond the point about the growing appearance of
the police acting as the court, as opposed to merely gathering the
evidence and giving it to the prosecuting authorities for the courts to
assess, is there a feeling among your organisations that this
informalisation, even among youngsters, is leading to the response,
“Well the criminal justice system clearly isn’t all that
important and we don’t really need to take the laws all that
seriously, if all we get is a caution.”? I appreciate that the
modern cautions bring with them additional sanctions if you fail to
comply with them,
but do you have those sorts of concerns or am I misunderstanding
you?
Christine
Lawrie:
I would say that there is a common-sense view
that—as you see with motoring offences, for example—as
offences become just one of the risks of life, people start to take
them less seriously. There is an issue of principle about whether you
hold the line and say that certain things are so serious that they must
be dealt with by a court. It is not just about ensuring that the
offender goes through a proper process in their own interests, it is
also about the way in which society deals with misbehaviour and
offending in general. You are right, there is a risk that you gradually
erode that barrier between what is serious and what is not so serious,
in the wrong direction. A lot of the people that we deal with would
start to see a caution as just one of things that perhaps you get on a
night out. I might be paraphrasing slightly, but there is a risk that
you start to erode things in the wrong
direction.
Q
88
Mr.
David Heath (Somerton and Frome) (LD): Following up on
that point, it is interesting that the police appear to take the same
view about the conditional caution scheme and echo some of the points
made by the probation service. I am intrigued by a statement in the
Magistrates Association evidence,
that
“There is
some evidence to suggest that such measures are not always imposed any
more quickly than if dealt with in a court.”
Given that the principal
argument for this scheme is expedition, reducing the workload on the
courts and ensuring a quick disposal, what evidence is there to support
that contention? It is a very interesting
observation.
Cindy
Barnett:
It came out of certain evaluations. I am not
sure whether they were final evaluations, but they were certainly
preliminary looks at adult conditional cautioning schemes. In some
cases, putting the conditions in place took more time than if somebody
came to court. Conditional cautioning is a more complicated process
than a fixed penalty of whatever sort. In itself, it has more time
built in.
Going back
to the previous point, we would also say that there is an element of
confusion and a lack of boundary, particularly for young people in
these provisions, because you can go through so many forms of pre-court
intervention before you end up in front of a court. That can have two
negative effects. First, wild confusion for the young person, who may
not take seriously what they ought to take seriously. Secondly, it
ratchets up so much by the time the case gets to court a person may not
be in a very good position. That is entirely wrong. There are already a
great number of pre-court interventions that are not formal. Youth
offending teams and police get involved with young people. There are
many things, such as acceptable behaviour contracts, that are not
criminal sanctions, but voluntary contracts. There is an enormous
amount of good work, which we support as much and for as long as
possible.
When you
get to a conditional caution, you are dealing with behaviour that is
deemed serious enough to be dealt with—with strings attached,
with lots of things you have to do—and still you are not coming
to court. We would say that that is wrong.
Cindy
Barnett:
We do not know that it would not be, but
there is nothing in the Bill that says that it must be, which worries
us
deeply.
Q
90
Mr.
Garnier:
May I again take you on to the street offences in
clauses 71 to 73, which affect both of your associations? I suspect
that we see a well motivated attempt to produce a more humane and
contemporary approach to prostitution. Clearly, what we are not talking
about is anything other than many women who are on the streets in order
to feed a drug habit. In the olden days, you had a queue of prostitutes
brought before the court and fined £5 one day and £5 the
next. Out they would then go to earn that £5. You know the
story. What are your views on the counselling sessions that the
Government want to introduce to help with the
problem?
Christine
Lawrie:
It is interesting. That takes me back to
being a probation officer 25 or 30 years ago. Then it was reasonably
common for prostitutes to be placed on short probation orders for about
six months if fines had not worked. My experience of those days is that
such a measure had very little impact on them at all. However, times
have moved on. We know that there are a lot of young women, as you just
described, who are dependent on prostitution because of their drug
habit, and there may be quite a lot of coercion behind that. My feeling
is that the sessions are generally a good thing. We want to bring those
women into contact with somebody who could offer them some help. In the
course of doing that, you will pick up a lot of women who choose to be
prostitutes and do not want to be helped. That is their lifestyle
choice. However, if you can start to reach women who are afraid, need
help and do not know how to get it, then that would be a good
thing.
Q
91
Mr.
Garnier:
I will invite the other two ladies to respond if
they want to. When this measure comes into force, are you happy that
your service will be able to provide the necessary numbers of
people—either directly through the state probation service or
other providers of supervision following the Offender Management Act
2007—to carry out the necessary work once the magistrates have
disposed of the case in that particular
way?
4.45
pm
Christine
Lawrie:
My judgment is that there will not be large
numbers of women involved. I might be wrong about that, but my
assessment is that the measure would be used sparingly and with care,
and our view is that we should make those resources available for that
purpose. We would have to see how that panned out in practice. If we
found that a lot of women who did not want or need help were coming
through, then we might take a different view. At the moment our
provisional position is that we would rather welcome this than not, and
we would then see what the resource implications were—on the
basis that my guess is that they are unlikely to be too heavy for us to
cope.
Q
92
Mr.
Garnier:
Suppose you were writing a pre-sentence report in
relation to this sort of offence, would you advise magistrates not to
consider this way of dealing with it until the resources were in
place?
Christine
Lawrie:
We would certainly want them to take that
into account. However, there is an overriding welfare issue in relation
to those women—the ones I have described—who are in
trouble. Our job is to try to offer some kind of support and assistance
to them. Assuming, as I do, that it is not a major resource problem, I
think that we are more happy than unhappy with the proposal, although
we would want to talk to magistrates about how to screen-in only those
women who really need this kind of intervention. Our working
relationship with magistrates is vital and helps to control some of the
traffic of business from them to us.
Sally
Dickinson:
We take a slightly different approach in
that we would like to see the resources made available before the
measure is implemented. It would make things very difficult for
magistrates if they were told, “Find out whether the resources
are available in your area before thinking about using this.”
Magistrates sitting in one area of the country may have the resources,
while those in another area may not. That does not seem to be a fair
way of proceeding. We would like to see the resources identified
beforehand.
Q
93
Mr.
Garnier:
That seems to be the theme of the Bill, in so far
as it has one. The Secretary of State has to certify on a number of
occasions that something cannot happen unless resources are available.
He does not have to certify whether sufficient personnel or resources
are available in relation to clauses 71, 72 and 73, but he does in
relation to some of the menu of answers to youth justice issues. Have
you had an opportunity to express your views to the Government about
the resources aspect of this part of the legislation, other than in
your written submissions?
Sally
Dickinson:
No, not other than in our written
submission. However, this kind of provision where the justices must
find out whether resources are available is more common in relation to
youth justice, and it makes practical operations quite
difficult.
Cindy
Barnett:
I would like to pick up on something that
was said by Christine Lawrie, which is that we wholeheartedly endorse
the fact that we rely heavily on the probation service. We would always
wish to have a close relationship with them, and we rely on them for
professional advice. However, no sentencer at any level is happy if
they arrive at what they feel to be a just and appropriate decision,
and are then told that it is not possible because the resources are not
there. It makes us very unhappy indeed, and that underlines our worries
about the practicalities of the proposal.
Q
94
Mr.
Garnier:
So, would I be putting words into your mouth if I
were to draw from our conversation that you would prefer the
implementation of some of the sections of the Bill to be delayed until
you were sure that there are adequate resources to do the
job?
Cindy
Barnett:
Generally speaking, we would like resources
to be available for everything that we have the legal power to do. I do
not think that we will be alone in that.
Q
95
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
Is the Magistrates
Association in favour of the rehabilitative alternative that is being
proposed? Do you agree that it
is a good measure? Is your point that, although you are uncertain about
which resources are available to make it a reality, in principle you
think that the rehabilitative alternative is a good one?
Cindy
Barnett:
We are certainly not
against it. We take the point made by the Probation Boards Association
that it will not be something that applies equally to everybody who
comes before the courts. In principle, yes, the rehabilitative approach
would or could be extremely valuable—as long as it is practical.
That was the other point we raised—not just whether there are
resources, but what happens if there are three supervised interviews
and nothing has happened. What is the consequence of that? Will it make
it worse? That is another
worry.
Q
96
Mr.
Coaker:
My understanding is that you would be able to give
another rehabilitative order if you felt that that was appropriate or
to have used a fine in the first instance if you thought that was more
appropriate. Thank you for clarifying that because I just wanted to be
clear that in principle it was an alternative that was worth while
having available to you, provided that the resources were available to
make it happen.
Cindy
Barnett:
Yes
Q
97
Mr.
Garnier:
Could I ask you about another issue in relation
to your powers which is dealing with people who are not before the
court? There are new provisions which adjust the default position. The
policy behind the new Bill is that you will try someone in their
absence, not as a matter of course, but more often than happens at the
moment. Is that your understanding of those provisions?
Cindy
Barnett:
We are already guided to continue unless
there is good reason not to. Nobody would ever wish to do it if there
were a shadow of a suggestion that someone had twisted their leg on the
way to court. Carrying on in somebody’s absence is one thing;
sentencing them to custody is another, if that is the drift of your
question.
Q
98
Mr.
Garnier:
It seems that powers are already given to both
Crown court judges and magistrates to deal with people in their
absence. Perhaps I should have expressed myself more clearly. I am not
entirely sure why you need additional powers to do what you probably
are doing already. But I am interested to hear what you have to say
about the sending of people into custody in their absence, or at least
sentencing them to custody in their absence and whether you think that
is a particularly sensible suggestion or power to give
you.
Cindy
Barnett:
It is very difficult decision for any bench
to take. As we expressed in the evidence we sent in, we think that
because of concerns about doing that, which seems a very major step to
take when somebody is not there in front of you, the provision might be
underused and there might be an adjournment. And, as we pointed out,
there is a provision in the Bill. It is not a question of someone being
stopped on the streets and hauled off to prison; they have to come
before a court. We are not sure that it would save a great deal of
time. For that reason we are not in favour
it.
Q
99
Mr.
Garnier:
Are the probation boards concerned that there may
be cases where a person has started off in front of the court and then
absented himself for one reason or another? Irrespective of the reason
why the person is not there, there will be no opportunity to prepare
probation advice and pre-sentence reports for the sentencing bench. Is
this a concern that you
have?
Christine
Lawrie:
I cannot honestly say that we have
particularly looked at this provision. I am not aware of many cases
where people fail to turn up at court. My colleagues would be able to
give you figures in a way that I cannot. But I cannot honestly say that
we have considered this and it does not figure at the forefront of our
minds as a problem. Maybe I should not say this as a probation officer,
but on the whole people who deliberately absent themselves from court
are rather asking for some kind of penalty to be awarded against them.
I do not think that it is an issue that we have particularly thought
about.
Q
100
Mr.
Garnier:
Let me put my cards on the table. I sit as Crown
court recorder for four weeks a year. Probably in my four-week stint on
at least one occasion somebody will simply not turn up. It is normally
on my first Monday when I am feeling particularly friendly. You issue a
bench warrant or you make inquiries about the absence of the defendant.
The problem is not in the court process; the problem is finding a
police officer to bring the man or woman in. There seem to me to be
practical policing measures which could probably solve the issue rather
than writing additional clauses in a Bill giving you powers to do
things which the courts seem to deal with quite sensibly
anyhow.
Cindy
Barnett:
As for proceeding with trials in absence, I
agree that the power is there and that it is used. We are guided to
consider it, and we do consider it. Certainly we are all extremely keen
to move things on and not to have unnecessary delay. That is not fair
to anybody. It is the extra step that we are worried about. If we get
through the trial, have the report and the necessary information, and
custody is an option—and the person is still not there—it
is an extra big step to say, “Right, he is not here, but we are
sending him to
prison.”
Q
101
Mr.
Garnier:
I am sorry to hog this interesting session, but I
wish now to deal with tariff setting, recall and the length of time
that people spend in prison. That does not affect the magistrates
directly at present because, despite provisions of the 2003 Act being
intended to increase their sentencing powers to 12 months, that part
has not yet come into force—along with about half the rest of
the Act, but there we
are.
What are the
views of the Probation Boards Association on the changes to the law on
tariff setting and the recall of long-term sentence prisoners back into
custody, and the inter-relationship between the probation boards and
the Secretary of State when it comes to release and recall, and what
looks as though has greater input from the Secretary of State as a
politician to affect the implementation of the
sentence?
Christine
Lawrie:
I take it that you are referring to clause 16
on the recall of prisoners.
Q
102
Mr.
Garnier:
There is that and other measures in the earlier
part of the Bill on tariff setting. Clause 12, “Indeterminate
sentences: determination of tariffs”, is rather complicated. It
obviously could have a bearing on the release date if there were
sufficient courses for the offenders to get on to so that they could go
before the relevant release authority and could come out before you had
to supervise
them.
Christine
Lawrie:
As you are probably aware, there has been a
marked trend towards large numbers of indeterminate sentences, much
more than anyone could have expected. That has had an impact that we
did not expect in respect of “silting up” the prisons and
creating a demand on both the prison and probation services. We are
particularly concerned not so much at the sentencing point, because we
accept what we are given by the courts, but on the recall and release
from prison after recall. As well as the opportunity to appeal, at the
moment there is the gate through which all recalls go, which is the
assessment by the Parole
Board.
I want to make
two points: one is an issue of principle, while the other is a
practical issue of demand and resources. The proposals will hinge
heavily on the risk assessment that is made by the probation staff
member at the point of recall. I understand that that will be the only
risk assessment and it will determine whether people fall into the
automatic release category, or whether they have to take the additional
assessment route. Presumably, most prisoners who feel that they have
been unfairly categorised at that point will choose to go through the
appeal process. That will put an increasing demand on probation staff
to do the paperwork and attend oral hearings when such matters will be
contested. That is my understanding of how the system will
work.
It will be a
particular training and development issue for us to make sure that we
get those risk assessments right. It is a skill, but it will also
require an element of judgment. We are worried about the demand that it
will place on our staff to attend oral hearings and deal with the
appeal processes. That demand and resource issue worries us because of
sheer demand and making sure that people are absolutely well trained to
undertake the right assessments and make the right
decisions.
5
pm
I come now to
the wider issue of principle. A few years ago, there was a drive to
make sure that the probation service recalled everyone who ought to be
recalled. There was a feeling that we did not recall sufficient people
swiftly enough. That was a fair criticism; we were a bit too relaxed
about matters. Over the past few years, one of the success stories of
the probation service has been getting our recall practice right. When
I was a chief officer two years ago, we were recalling maybe 20 per
cent. of prisoners who were eligible, and I think the number has risen
since then.
Since
then, I think in order to try to control the prison population, we have
moved gradually towards more of a revolving door approach, where
prisoners are recalled but come out again to continue to serve their
licence period in the community. This is a further move in that
direction, as the recall becomes automatic except for the most
dangerous prisoners.
The probation service originally
would have been quite uncomfortable about the idea of recall being such
a central part of our professional work, but it changed its views over
time. It gave a real credibility and impetus to that supervision in the
community on licence. There was a real threat—if people did not
comply, they knew that they were going back—and that helped the
work of probation officers in making their relationship with that
prisoner stick. Our concern is that although I would not go so far as
to say that it will become a game, prisoners will now know that it
almost does not matter—that you can behave badly or reoffend
when you are on licence and have a 28-day window of opportunity when
you can maybe persuade the parole board to let you out, and you will
certainly be out within 28 days. That makes it more difficult for
probation staff to have an authoritative relationship with those
offenders.
I feel
uncomfortable about a situation where, apparently to control the prison
population, we are doing something that will—perhaps not
immediately, but over time—erode the authority that probation
staff have over the people who they supervise on licence. Our ability
to protect the public hinges on that authority, and it worries me that
we are making that a weaker authoritative relationship for another
reason.
Q
103
Mr.
Hanson
:
Do you agree that the legislation
allows for further recall if behaviour is still poor?
Christine
Lawrie:
Obviously, various checks and balances are
built in and there is the chance of further recall. Apart from the
additional resource implications of the extra burden on the probation
service—there will be an extra demand—it gives a
particular message to offenders. Until recently, it was clear-cut. The
licence was the prison sentence served in the community, and there was
little argument about it. That was a healthy environment.
Notwithstanding the fact that what you say is right, and that people
can be re-recalled, it creates a kind of ambiguity, and that is a bad
message to give, particularly to habitual and serious offenders. If we
are going to do things about the prison population, which we need to
do, from a probation point of view there are other things that it might
be better to do. Recall has been such a success story and such a public
protection success story that I do not like to see it watered
down.
Q
104
Mr.
Garnier:
You mentioned your concerns about the criminal
justice policy and the implementation of some of the provisions in the
Bill being driven by the need to deal with the prison population. One
of the other things that the probation boards and probation services
have to supervise, in addition to those who are released early on
licence, are those who are released from custody on licence under the
ECL system. At the moment they are released 18 days early, if they
belong to a certain category of prison, and most of these people are
relatively short-term prisoners. Could you explain what the probation
service does in the last 18 days of a custodial sentence to help
resettle the prisoners in the outside world?
Christine
Lawrie:
In those 18 days, not a vast amount can be
done. We would try to find accommodation and try to help them find
work. We
would try to do what we could in that period of time. We would do our
best, because that is what we are paid to do, but we would feel
uncomfortable about picking up the fallout from trying to chip away at
the prison population, which is a good thing. There is clearly an issue
that needs to be resolved, but we would say that it is a bigger problem
than can be resolved simply by taking small slices of the prison
population and giving them to the probation service in a variety of
ways. We would argue strongly for looking at it as a whole problem. It
could perhaps be solved more imaginatively and sensibly by looking at
it as a global problem, not constantly carving out a few prison places
here and there by small bits of release and other activity through
early
release.
Q
105
Mr.
Garnier:
I wanted to ask both groups about the power to
evict people from their homes or places of occupation if they are
guilty of antisocial behaviour. It is essentially a measure designed to
close down crack houses, as I understand it, but I think that the Bill
will take it a bit more widely than that.
As magistrates who will be
invited to make the orders, are you happy that the social consequences
beyond the immediate eviction of the troublesome person have been
considered by your association and those whom you wish to influence?
Are the probation boards sufficiently enthused by that sledgehammer, or
will it create splinters that we need to think
about?
Cindy
Barnett:
That is not something about which we sent in
written evidence. When the first proposals for crack house closure were
made in a different piece of legislation, we had concerns relating to
the practicalities—in particular, to the benches being given
sufficient information. The same point arises here. I do not think that
it is for us to comment, except to say that in any case, when we are
asked to exercise a power, we must be convinced that it is the right
thing to do and wholly justified. If we know what the consequences are,
that will raise the bar even higher, but beyond that I do not think we
have a
view.
Christine
Lawrie:
We do not have a particular view. It would
concern us only if the people being evicted were people with whom we
were working. Clearly, it is a problem with crack
houses—
Christine
Lawrie:
Certainly some of them will, but it is not a
problem to which we have particularly given any
attention.
Q
106
Mr.
Hanson:
It has been suggested that we should include in
the youth offending order the potential for an alcohol treatment
element. Do you have any views on
that?
Cindy
Barnett:
We are certainly concerned about the effect
of the misuse of various substances, and definitely of alcohol.
[Interruption.] I am just checking that I have not missed
anything. We would generally welcome that. It is an increasing problem,
and if some help could be offered, we would welcome that as an extra
piece of
flexibility.
Sally
Dickinson:
On reflection, what we hear from our
members more and more is that alcohol is becoming the bigger problem in
some areas.
Q
107
Harry
Cohen (Leyton and Wanstead) (Lab): Can I ask you about the
age of criminal responsibility? At 10, it is very low in this country.
How does it impact the situation? The Bill contains youth
rehabilitation orders. How do the two interact as far as what you have
to do, particularly the magistrates’ side of things? For a
younger age, are there certain aspects of the YROs that you would use,
as opposed to others for a later
age?
Cindy
Barnett:
Yes, there are. At the moment, we can have
10, 11 or 12-year-olds in court. It is not a pleasant experience. We
have powers that we can use, which are to some extent replicated or
renamed in the youth rehabilitation order. It comes back to the general
point. First, we are wholly in favour of as much diversion as possible
before youngsters enter the criminal courts, and the younger the
person, the stronger that feeling is. Secondly, we desire as much
flexibility as possible in sentencing, so that we can tailor whatever
sentence is necessary if they do arrive before us and we must deal with
them, rather than being in any sense straitjacketed or fettered. Again,
the younger the person, the more we would like that
flexibility.
Christine
Lawrie:
We are an adult service; we do not really
have a view about the age of
responsibility.
The
Chairman:
If there are no more questions for this panel, I
thank them for their contribution and invite the next set of witnesses
to take their
places.
I invite you
to introduce
yourselves.
Jan
Berry:
My name is Jan Berry; I am the chairman of the
Police
Federation.
Adele
Kirkwood:
My name is Adele Kirkwood, also of the
Police
Federation.
Q
108
Mr.
Philip Hollobone (Kettering) (Con): In line with your
direction to concentrate on the latter part of the Bill if we can,
Mr. O’Hara, I am particularly interested in part 11,
“Special immigration status”. I know that that is not
something that the Police Federation concentrated on in written
evidence, but I wish to draw out from the witnesses the position, as
they understand it, on the apprehension of illegal immigrants at large
in the United Kingdom. I want to ask about that because it seems to me
that there is a good opportunity in the Bill, if the current law is not
satisfactory, to tighten up what I believe is a loophole.
There was a case recently in
Northamptonshire in which 16 illegal immigrants jumped out of the back
of a lorry. Three were apprehended by Northamptonshire police, who
telephoned the Border and Immigration Agency only to be told that they
should encourage those three people to make their own way to the
immigration office in Croydon. You can understand the outrage that that
caused in Northamptonshire. I want to ask for your association’s
view of how the law is meant to operate and how it actually operates in
practice.
Jan
Berry:
That is an accurate description of what is
taking place in many areas of the country, where there is not
necessarily any provision for people to be transported to the different
centres. When we call up,
that is exactly the advice that we are given. We encourage people to get
on a bus, train or other form of transport, and surprisingly very few
actually reach the destination. It is certainly something that our
members have said to us is of
concern.
Jan
Berry:
I am not sure whether we have a power, to be
absolutely honest. I would have to check that. Even if we had a power,
it is about having the resources to do that. If an expectation is
placed on the police to keep people in custody and then transport them
through the country, it will be extremely resource intensive. As we
have pointed out, while we agree with many of the aspects of the Bill,
there are a number that will have significant resource implications for
the police service. We will start to become the first point of call,
rather than the last. If immigration cases are going to be transported
around the country by the police, I do not think that we have the
number of people to do that and the other jobs that we are expected to
do.
Q
110
Mr.
Hollobone:
My second question on immigration issues is
based on evidence submitted by your colleagues in the Police Federation
who have recommended the creation of legislation that would allow a
constable to demand of a person proof of identity when the constable
had grounds to believe that the person in question intended to enter or
leave the United Kingdom. In their evidence, they say that, currently,
officers only have the right to request to see passports, and that many
individuals—for example, those subject to a football banning
order—are acutely aware of that and decline. Is that a concern
that you
share?
5.15
pm
Jan
Berry:
Yes, we have proposed that particular change
on several occasions. Unfortunately, it has not been taken up and
included in a Bill. Sometimes I think that Bills going through do not
have the time for additional clauses to be added. In some
cases—particularly with football banning orders—we do not
have the power to demand a person’s passport, even when we
suspect that they might be wanted on warrant. It seems absolutely
ludicrous that we have automatic licence plate recognition systems
going in and out of all of our ports and airports these days and that
we can tell whether the vehicle has a certificate of insurance or an
MOT and who the keeper is, but we cannot ask for their passport. Well,
we can ask, but we cannot demand, and I think that that is the
important
word.
Mr.
Coaker:
The point of having these evidence sessions is
obviously to collect evidence. Part of the point of Mr.
Hollobone raising that issue was so that I heard it in front of Jan
Berry, so I will look at this
issue.
In your view, does the extension
of the adult conditional cautioning scheme to young people aged between
16 and 17 offer the chance to deal with low level offending in a way
that ensures that offenders receive the right level of
intervention?
Jan
Berry:
I think that it can do. We are reasonably
supportive of the conditional cautioning system for adults and that has
been piloted in several areas. I have to say that it has increased
bureaucracy in some of those areas and that needs to be addressed if we
are not going to add more paper to the system because papers are flying
in all directions.
As
far as juveniles are concerned, I think that there needs to be a menu
of different sanctions and options with which you can keep young people
out of the criminal justice system as much as possible. More
importantly, you should focus them in areas where they are going to
receive rehabilitation and the support that they need within the
community.
I think
that a conditional caution provides more opportunities than a severe
talking to on one occasion because you can add certain conditions to
it, but it does keep that young person out of the court system for a
little longer. I do not think that it is suitable for every young
person, but it is an option that has been made available to adults and
it is an alternative sanction that will keep people out of the courts
and therefore speed up other court proceedings. However, I do not think
that it is the perfect solution for adults and I do not think that it
is the perfect solution for 16 and 17-year-olds
either.
Q
112
Mr.
Hollobone:
Are Crown Prosecution Service prosecutors
suitably equipped to deal with youth conditional
cautions?
Jan
Berry:
Our view is that as a matter of constitutional
principle it should go through magistrates. We have found in the pilot
schemes that there have been some delays in imposing conditions, which
makes a mockery of speedier justice. Therefore, our view is that, as in
many situations, if you can get the person to a magistrates court
quickly, it will have greater authority. You do not need the whole
court case so you do not have the bureaucracy and all of the paperwork
that goes with that. I also think that it means a little bit more to
the person who is subject to the hearing.
Q
113
Mr.
Hollobone:
What role do you expect youth offending teams
to play in the youth conditional cautioning
scheme?
Jan
Berry:
That would depend on the requirements of the
particular youth, but in many areas of the country there are superb
youth offending teams that are working really effectively and have some
creative ideas for how to keep young people out of crime. When a youth
offending team works effectively—there are areas in which they
do not—it is vital that they are part of the decision-making
process on the right course of action for a particular person. It is
extremely unlikely that the team have not met such a person—they
are more likely to have seen the young person a few times—and
they will be the best people to determine what will work for that
person, and to find out what is available in their area.
One of the other issues on
availability is that, although you might have some good programmes in a
given area, there might be insufficient places. The youth offending
team would be in the best place to find out what is available and what
is most suitable to a young
person.
Q
114
Mr.
Hollobone:
In that regard, how would you expect the
cautioning scheme to interact with the final warning
scheme?
Jan
Berry:
I do not know how it will interact with the
final warning scheme, and I am perhaps not best sighted on that
issue.
Adele
Kirkwood:
The only thing I can think of is that a
youth offending team would have had some involvement with a young
person if they had received a final warning, but I am not otherwise
sure how the two things would interact.
Jan
Berry:
One of the dangers of the final warning scheme
and cautioning has been a reluctance to put a young person before a
court, which I fully understand. However, sometimes that is to put off
the inevitable, and if you continue to introduce new schemes that
ratchet up previous schemes, you might not address the real
problem.
There needs
to be clarity in the provisions, which is why we tend to support
rehabilitation orders, because they bring all things under one heading
but still give youth offending teams and others the option to choose
the most appropriate sanction for a person in their particular
circumstances.
Adele
Kirkwood:
The only other issue that I would raise on
conditional cautioning is that you could have a situation in which a
person fails to comply with the conditions and ends up before a court.
Under the Bill, the CPS will decide those conditions. A person might
never appear before a court for the original conditional cautioning
offence, because the decision has been made by the CPS and the police
enforce its decision. If there is a failure to comply, a person could
end up before, and receive a sanction from, the court, without the
court knowing of their substantive original offence. In such a case,
the court would be dealing with the cautioning, which is why we would
like a move toward making magistrates the people who set
conditions.
Q
115
Mr.
Hollobone:
What is your reaction to the proposal to
introduce a new criminal offence for inciting homophobic
hatred?
Jan
Berry:
Clearly, there is no place in society for that
type of behaviour, but there is a huge problem with policing it because
it is a matter of interpretation. The offence of incitement to racial
hatred has been policed quite reasonably. Many of the scare stories
have not come true because it has been policed sensibly. The same kind
of interpretation would need to be applied to homophobia, otherwise you
would be giving police officers the responsibility of making a decision
about a comment, which could be a joke or a sermon or, as we have seen
in today’s newspapers, a minister making a comment on an
internet site. Such things could be covered by the Bill if proper
guidance is not provided. I do not think that that is intended, so the
drafting of the Bill needs to make the intentions
clear.
Q
116
Mr.
Hollobone:
In that regard, what is your
reaction to the potential for extending the proposal to include hatred
against transgender and disabled
people?
Jan
Berry:
We saw the proposals this morning and have not
taken a view about extending the measure. I do not think that we have a
view one way or the other on any extension. All I would say is that, if
it is included in the criminal law, we would ask that the
interpretation be very clear, because it is the police officer on the
street who will be expected to be able to interpret that and, if they
do that in the wrong way it could inflame situations and people could
very quickly get into polarised positions, making a mockery of what we
were seeking to achieve in the first
instance.
Q
117
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
Obviously, at present you have not had the
advantages—nobody on the Committee has—of seeing the
draft of the clause as it is intended. However, you seem to be saying
that the provisions in respect of incitement to racial hatred are well
understood and work well. Is that your
experience?
Jan
Berry:
I would not say that they are well understood.
I think that they are working fairly well at the moment because people
are being very careful in how they are using that piece of legislation
and I think that that is very sensible. If that is applied to
homophobia, there is no reason at all why the same situation would not
apply.
Q
118
Maria
Eagle:
So your position would be that as long as the
provisions are clear, sensible and strike an appropriate balance, that
would assist your members in their enforcement of the
legislation.
Jan
Berry:
Yes, but at the end of the day we must allow
police officers to use their discretion as to what is the most
appropriate way of dealing with a particular set of circumstances. In
not every single set of circumstances would it be appropriate to
interview a person, let alone take them to court for such an offence.
It would have to be in a more extreme case so that, as you say, you
deal with it in a balanced way.
The
Chairman:
I have a lengthening queue of Committee members
who wish to come in and I think I ought to call some now. Phil Wilson
first.
Q
119
Phil
Wilson (Sedgefield) (Lab): I just want to ask a couple of
questions in respect of the antisocial behaviour part of the Bill. On
closure orders, if premises are closed down, do you think that the
problem could just be displaced to another area or on to the streets so
the problem itself is not actually
resolved?
Jan
Berry:
Yes. There are occasions where, in not closing
a premises down, you are also committing the same offence, to a certain
extent, because you are allowing it to continue. But, again, I do not
think that this is a power that would be used lightly. Apart from
anything else, if you are going to close premises down, depending on
the size of those premises you need a fair number of resources actually
to achieve the closing down.
This is something that happens
at 2 am, where a rave or a drugs den is identified. You would rarely
decide there and then that you must close it down. In many situations
you would have the time to prepare and get the resources to do that. In
that preparation, part of the assessment of whether it needs to be done
would be whether you are just going to move the problem to another
place. That would need to be taken into account, but it would need to
be policed, because closing a place down does not take away the problem
from the people who might be living in the vicinity of the place that
you are intending to close
down.
Q
120
Phil
Wilson:
I have a couple of other points. Are you satisfied
that these orders, when they come into effect, will not unfairly affect
children, for
example?
Jan
Berry:
This is another area where you would need to
take that into account in any planning. If it is something that has to
be done quickly, clearly you would need to take account of children.
But most of these cases will be well-planned operations. We will know
in advance if we anticipate children being on the premises and we will
take the actions that you need to
take.
We rely on other
partners, because at the end of the day we are police officers and we
do not necessarily have the ability to house children and other people
who may be removed from those premises and need to be put into safety.
But we have partners who will assist us in that process. I would
anticipate that that is part of the planning process. That does not
make it easy, but that is why we need to involve partners when acting
in this sort of
way.
Q
121
Phil
Wilson:
Just one more point. In your submission, in
paragraph 20, I think, you highlight that closing down premises in an
effective manner is a resource-intensive exercise. Could you just
amplify that a little
bit?
5.30
pm
Jan
Berry:
It depends on what type of premises we are
talking about and where they are, but if they were in a residential
area and were a substantial hall or something like that, depending on
how many people were there, you would probably need in excess of 200
officers to close them down. It really depends on the nature of the
premises. A couple of years ago, when we had one of the terror threats,
there were lots of comments about how many police officers were either
at the scene or in the vicinity. If we had literally to close off a
whole area, 250 police officers would go nowhere, so we should not
underestimate the resource implications. If you have to close an area
or building down, you need a number of officers to protect people going
in and prevent people going out. You need to have people to deal with
every single person in there, so there is an audit trail of everything
that takes place. When you are making these rules, these are not
actions that we will take lightly, because we will need to ensure that
we have got the resources to deal with them. Otherwise, we could make
the situation worse by attempting to close down premises when we do not
have the resources to deal with the implications of that.
Jan
Berry:
I think that if we have the power, we can use
our discretion as to whether we need to use that
power.
Adele
Kirkwood:
In fairness, when the initial consultation
came out on this issue, we did some work with our Scottish colleagues,
who have this power, and they felt that it was appropriate and that it
worked well on the occasions that they used it. One of the responses
that we gave to the initial consultation was about having a magistrates
court make that decision, because it would include a number of key
stakeholders. With nuisance neighbours, for example, a number of
stakeholders would have a lot of discussions and try to solve the issue
in other ways. This would be a last resort. That is why we felt that it
was important to have a magistrate’s involvement, so that all
those issues could at least be considered by the court as
well.
Mr.
Heath:
I would like to deal with quite a narrow issue in
clauses 104 and 105: the provisions on NHS premises. This ought to be a
no-brainer. Obviously, no one wants to see disorder in a hospital, and
we want to have effective offences, but the more I thought about it,
the more difficulty I have in understanding what is missing at the
moment. Are there instances in which your members are asked to attend
hospitals in response to disturbances or potential assaults on NHS
staff and feel constrained by a lack of existing
powers?
Jan
Berry:
No, I do not think that our officers do. I
think that this is more directed at protecting NHS staff. What it does
is to make a separate offence, so that if a person refuses to leave,
having been asked to do so, it provides us with not an aggravating
factor, but certainly an actual offence. I think it sends an important
message to NHS staff, who face the most awful circumstances, and not
just on Friday and Saturday nights, that we care about them. We have an
offence of assaulting a police officer, which I would not want to
disappear from the statute books. I think that all public sector
workers should be properly protected by the law, because they perform
extremely difficult tasks, and it would send an important message to
them that we actually care about what is happening to them.
Mr.
Heath:
I certainly would not argue with that. I just
wonder why it is so constrained, in that case, because many people in
public service face the same sort of threats and risk of disturbance in
other contexts. This particular provision applies only to hospitals,
rather than all NHS premises, so GP surgeries are not, I am afraid,
covered by this
offence.
Jan
Berry:
No; I take your point. From our perspective,
we probably have 20 or 30 times more problems in hospitals than we ever
do in doctors’ surgeries, so I suppose you focus on those
premises where there is a particular problem. However, you are
absolutely right about the general principle. In evidence that we have
given on other Bills, we have suggested that there should be a specific
offence of assaulting emergency service workers. Fire officers are in
exactly the same situation. People outrightly obstruct them when they
are trying to undertake their functions.
The provision is specific to the
national health service. We support it, but I take your point that it
could go further in certain
circumstances.
I am sorry,
but there is a further practical difficulty. This is a small point, but
it would be helpful to have a professional view. There is an exemption
for a person who is obtaining medical advice, treatment or care. Most
people on NHS premises fall into that category. Do you think that a
police officer attending a hospital would be able satisfactorily to
ascertain whether the person is attending for care, treatment or
otherwise, and at that point therefore would not be able to use the
offence? Is that a difficulty that is unnecessarily
prescriptive?
Jan
Berry:
I suppose that the science of hindsight will
tell the police officer whether the person was receiving medical care.
We do not go into hospitals unless there is a reason for us to be
there. Very often, we go in to deal with one incident but then the
problems tend to stack up in the evenings and it is difficult to get
out of the hospital again. In that situation, I do not think that any
of my colleagues would act without the guidance of the medical staff.
We work very well in co-operation with
them.
Q
123
Mr.
Heath:
I am surprised that you do not see a difficulty in
this exemption, because a person who behaves appallingly at the
hospital has only to be there for the purpose of obtaining care to be
exempt from the
offence.
Jan
Berry:
The circumstances and people’s
interpretation of them may dictate what happens. We always have to
ensure that safety comes first. Public safety comes first, and there
are times when we have to remove people who are causing more problems
than is absolutely necessary from hospitals. If the person is suffering
from an injury or an illness, it makes our job extremely complicated,
but we owe a duty of care to them, to the other people in the hospital
and to the NHS staff as well. It is very difficult for police officers
to try to balance those different
duties.
Q
124
Mr.
Heath:
I just need to be persuaded that the Bill does not
make it more difficult rather than less.
Jan
Berry:
I would much rather send a strong message to
NHS staff that we are there to support
them.
Q
125
Mr.
Garnier:
I can probably help David Heath. Clearly, no
police officer wants to be accused of interfering with the medication
or the application of medical treatment to someone who then, because of
his removal, comes to some harm. Obviously, that is a liability issue
that is of concern to the
police.
Jan
Berry:
We know of the tragic outcomes in such cases,
and we do not want them again. That is where the science of hindsight
comes in, and that is why police officers must always act under
professional advice, which, in this case, should be within the
hospital.
Q
126
Mr.
Garnier:
I fully sympathise with the need to protect
health staff and people working on NHS premises and so forth, just as
one would want to protect people working in the Department for Work and
Pensions offices or on the public transport system. That is not an
issue. But are not the outlined offences in this part of the Bill
already covered by existing legislation? You can arrest a man for
acting in a way that breaches the
peace.
Jan
Berry:
That is absolutely
correct.
Q
127
Mr.
Garnier:
So are we just writing friendly legislation
because it looks nice, or do you think that it has a practical
purpose?
Jan
Berry:
As we were saying earlier, it sends an
important message to NHS workers that they should not have to put up
with that type of treatment. They feel very intimidated by the way in
which they are treated. To have an offence that says “You will
not assault a national health service worker” sends an important
message. You are absolutely right that there is probably an abundance
of other pieces of legislation that would cover the offence, but this
is about signalling support for the
NHS.
Q
128
Ms
Sally Keeble (Northampton, North) (Lab): I wanted to ask
about the proposal that you mentioned, which has properly been put
forward as an amendment previously and presumably will be again and
which is about giving police officers a power to require people to
produce passports. How would that
work?
Jan
Berry:
At the moment, we do not have the power to
demand to see a person’s passport, so if we suspect that a
person might be on a football banning order and they are making their
way to the airport, we have no mechanism to stop them to check that
they are the person who is subject to that football banning order. We
have the power to demand names and addresses in so many other
situations. Particularly when we were leading up to the last football
competition—wherever it was and whatever competition it
was—on the continent, we had great difficulties in being able to
enforce some parts of that, because we did not have the
powers.
Q
129
Ms
Keeble:
But there is no requirement on people in the UK to
have passports and at present we do not have ID documents. People who
evade border controls certainly do not have any papers usually, so how
practically do you enforce it? The next part is: what is the sanction?
I agree you do not want police stations full of people who have been
picked up for not having
passports.
Jan
Berry:
I do not think we are looking to take over the
border authorities’ responsibilities. It is at the points of
entry to and leaving the country that we are asking for this power. I
do not anticipate that it would necessarily be used throughout the
whole of the United
Kingdom.
Q
130
Ms
Keeble:
Can we just go back, because it is quite an
important point? If people who evade border controls and appear in the
country are asked about what sort of papers they have but they do not
have any,
at present there are no powers to oblige them or that the police have to
insist that they produce any. How would you, then, practically deal
with somebody? Would you require them, as with showing their
driver’s licence, to come back at a later date, in which case
you have the problem of them hopping off and disappearing and you not
seeing them again? Or would you have an ability to take them to
premises? How would you practically deal with
them?
Jan
Berry:
This is about dealing with
people who know exactly what the law says and who know that we can ask
but cannot demand, so you get different variations on: no, they are not
going to tell us who they are or anything else. We are then left with a
situation where we can use a different piece of legislation to try to
establish their identity to see if they are wanted on warrant or if
there is a football banning order or another measure. However, it would
be far simpler if, since they should have some form of identification
if they are leaving or coming into the country, because they cannot
travel without that, we could then look at
that.
Q
131
Ms
Keeble:
Legislation has to apply to the whole country, not
just the borders, so if you have a requirement on people to produce a
passport or, almost by definition, ID at the borders, the same rule
would have to apply in-country, so the people who had jumped off the
back of lorries or whatever else would be required to do it in the
middle of the country, miles away from the border. How would you manage
that kind of power? I understand completely what the issue is: it is
trying to find a way to deal with it that does not end up with you
having to arrest people and take them to police
stations.
Jan
Berry:
I take that point and I do not think I have
the solutions here, but I think the Minister said that he would be
happy to look at it, and we would be happy to work with him to ensure
it did not cause the problems that you suggest but at the same time
provided police officers with the power to police some of the issues
that currently we cannot police as thoroughly as we would like
to.
Q
132
Mr.
Hanson:
I want to ask a question relating to the
submission that you made in connection with youth rehabilitation
orders. In paragraph 5 and the conclusion of your helpful submission,
you say that for the purposes of compliance with the youth
rehabilitation order, you wish to see a clause added to the Bill to
enable the use of reasonable force for those with custody of the
relevant person or parental responsibility. I should welcome an outline
of your initial thinking on
that.
5.45
pm
Jan
Berry:
This is not a normal thing for the Police
Federation to propose; we would not normally suggest it. However, some
of the young people whom we expect to be deterred or rehabilitated need
some control. Police officers have some authority already, but they are
not always there. The young people’s own parents sometimes,
because of their age, should be able to use reasonable force. We are
not asking for anything more than reasonable
force.
Q
133
Mr.
Hanson:
Again, so I am clear, in connection with the youth
rehabilitation order, let us say, for example, a court determined that
a young person would have a drug testing requirement as part of the
order. Are you suggesting that we should legislate for parents, foster
parents and guardians, as you said in your paragraph 5, to be able to
use reasonable force to ensure that the children and young persons
comply with the order?
Jan
Berry:
That would not be an appropriate use of
reasonable force.
Q
134
Mr.
Hanson:
I am just clarifying that point, because that is
what you said in your submission to the Committee in paragraph 5. Is it
something that you would support? If you suggest in the proposal that
that amendment would be forthcoming, the Committee might table it, and
I as a Minister would have to respond to it. I am just interested in
your logic and thought process.
Jan
Berry:
I take your point entirely. When the
suggestion was drafted, that was not its intention. The intention was
not related to drug enforcement orders.
Jan
Berry:
Yes, go on.
Q
136
Mr.
Hanson:
The suggestion is in a submission, and it may come
to me, as a Minister, in the form of an amendment, because you have
suggested it. I am interested in whether you think any youth
rehabilitation order—the activity, programme, curfew, exclusion,
residence, local authority residence, fostering, drug treatment, drug
testing, education or mental health treatment requirements, or indeed
the residential exercises for up to 90 days—is a context in
which it is suitable, as paragraph 5 says, for “parents, foster
parents or guardians to be able to use reasonable force to ensure their
children and young persons comply with the orders”; or, as in
the proposed additional clause, a context in which it is suitable for
those having custody of the relevant person to use reasonable force to
comply with the order.
Jan
Berry:
I do not. I cannot conceive of any of those. I
can see that preventing a child from breaching an order might be where
we were probably coming from, as opposed to enforcing the order. That
may be bad drafting.
Q
137
Mr.
Hanson:
Just so I am clear, Ms Berry, because it is an
important point to clarify for myself, in the event of a young person,
for example on a drug testing or treatment requirement, breaching that
order, are you saying that, according to the amendment that you may
wish to see forwarded, it would be appropriate for a parent to use
reasonable force to stop the child or young person undertaking that
breach, and that the person with responsible custody of that young
person, such as a youth offending officer or somebody else with
responsibility, should be able to use reasonable force to prevent the
breach of an order?
Jan
Berry:
That is my understanding,
yes.
Q
138
Mr.
Charles Walker (Broxbourne) (Con): Thank you. On violent
pornography, I broadly support the Government’s clauses, but of
course we must ensure that the legislation is right. We all remember
what happened with the Dangerous Dogs Act 1991, which was legislation
off the back of a tragedy. I should like to explore where you see the
strengths and perhaps weaknesses in clauses 64 to 67. Where do you see
the problems?
Jan
Berry:
Policing this is enormously difficult, and a
tremendous amount of work has taken place with the IT industry and
abroad. However, where the offence is committed is probably the most
difficult part of pornography. I am not quite sure if I really
understand your
question—
Jan
Berry:
Where the offence is committed is probably the
most difficult part. Although we co-operate with some countries, we
have very little co-operation with a variety of others. We have had
some discussions recently with Jim Gamble
from—
Jan
Berry:
Thank you. We are very keen to work with them
and to understand better how we can help. I do not think that police
officers fully appreciate that, on many occasions, when they go to the
scene of a very innocent-looking incident, grooming or something else
related to child pornography has taken place
there.
Jan
Berry:
Oh, I am sorry. I thought that we were talking
about
children.
Q
139
Mr.
Walker:
I see a problem, because huge numbers of images
are available on terrestrial television of violence towards women and
of violent pornography. A series called “Wire in the
Blood” routinely depicts what I would call violent pornography
and violence towards women. There are films on general release in
cinemas, such as “Hostel 2”—I have no intention of
watching it—which is an hour and a half of brutal, violent
pornography towards women. I am struggling with how this is going to
work. How can you make taking stills from “Hostel 2” a
criminal offence, but pass the film and give it a classification? Do
you see what I am
saying?
Jan
Berry:
Yes, I
do.
Q
140
Mr.
Walker:
As drafted, right now, if someone were to take
stills from “Hostel 2” and have them on their computer,
it could be deemed to be a criminal offence, because a court might
decide that they were purely for the purposes of arousal. However, the
same things, as part of a film that has been passed, would not be in
contravention of this proposal. I see problems and contradictions there
and was wondering if you did
too.
Jan
Berry:
I am not sure that I see
contradictions. This is a particularly difficult area to police,
because of, as you say, the way in which it could be interpreted. As
a matter of principle, I think that it is appropriate for the criminal
law to set the standards of behaviour in society. I think that, as a
result of violent videos, whether involving children or adults,
people’s behaviour has changed.
Some might say that what adults
do in their own time and in their own place is down to them, but when
that starts to feature in films and videos, it starts to impact on
other people. It is appropriate for the criminal law to try and deal
with some of those areas. I do not pretend that that is simple to
describe. It is even less simple to interpret. Again, although my
colleagues might come upon such issues during the course of their
normal duties, any prosecution from such a case would be considered at
length. I cannot see anybody being prosecuted unless it was felt that
there was sufficient evidence and something more than, as you say, the
arousal.
Q
141
Mr.
Walker:
May I ask one question, and I hope that I am not
ruled out of order for doing so? You touched on a very important point:
the amount of violent images in society at large. One of the
justifications for bringing forward this very worthy set of clauses is
the fact that people looking at violent pornography could commit
violent acts—there could be a link between looking at that
pornography and committing a violent act. I think that when you
answered the question, you said that more general violence can have
implications. For example, we know that there are many hugely violent
video games in which casual murder is glorified. Do you see that as an
area of concern as well? Huge numbers of young people are being knifed
and gunned down on our streets. Do you think that there is a link
between that and our casualisation of violence at a societal
level?
Jan
Berry:
I think that we are becoming desensitised to
violence and I think that it takes more to shock sometimes, because of
what people have become used to. There is no doubt that there are some
people within society who are more susceptible to watching something
and then going out and doing it. There is a whole host of other people
who can watch exactly the same programme and it will not make any
difference to them; they are able to rationalise it. However, if it is
a person who cannot rationalise what they are seeing then, yes, it can
have an effect on their behaviour. There is no doubt about
that.
Police officers
will deal with incidents, from the very minor to the very major, where
they can see a programme on television, or watch a film, and you can
guarantee that over the next few days you will have to go and deal with
incidents like that. It ranges from very minor incidents, such as
people throwing stones off motorway bridges; the following day, there
will be cases of people throwing stones off motorway bridges. Most
people will rationalise that; they will think that it is stupid, do not
do it. However, those people who cannot rationalise it in that way can
be and are affected by what they see on the
screen.
Q
142
Mr.
Walker:
This is my very last question, Mr.
O’Hara. There is a definite link between child pornography and
offending; that has been proven. Have you seen the same
evidence—beyond anecdotal evidence—to suggest that there
is a definite link
between violent pornography and offending against women, and between
violent video games and offending against the individual, whoever that
individual may be? Is there that same body of evidence connected to
those two issues that I have raised as there is connected to child
pornography, for example?
Jan
Berry:
I can only speak from personal experience; I
have not studied this area. However, I am certainly aware of people who
have been brought up with that type of background who then, very
easily, find themselves in that type of behaviour
later.
Q
143
Mr.
Burrowes:
I want to pick up on the responses to the
Minister concerning the homophobic hatred proposal. You expressed
support for an additional law in relation to homophobic hatred. Could
you give specific examples from police members about the type of
incident that are not presently covered by legislation that would need,
and indeed would justify and form the basis for supporting, an
additional law on homophobic
hatred?
Jan
Berry:
I do not think that I can give you very many
examples, other than to say that I think that this is another area
where the law can be seen to support particular people. There are
probably hundreds of pieces of legislation whereby, if a person is
inciting hatred, there would be an offence somewhere that would cater
for that. Somehow, however, when it is inciting hatred around race or
around homophobia, it adds another dimension to that particular hatred
and I think that the law has to recognise that. Particularly with many
aspects of homophobia, it is not something that is easily seen by the
eye and therefore it can have a greater effect on the person who is on
the receiving end of it.
Q
144
Mr.
Burrowes:
In terms of evidence to justify additional
pieces of legislation, it would be useful if you could give examples
from your membership to back up your support for this legislation,
coming up with specific incidents that, if you wanted to support the
additional legislation, would no doubt be out there to justify
it.
Jan
Berry:
We have two ways of dealing with this. I have
been a police officer for too many years now and I can remember when
homophobia was not outlawed in the way that it is today, and where
sexual orientation was outlawed, and where police officers spent far
too much time enforcing laws around sexual orientation. Today that does
not happen, so there has been a sea change in how police deal with this
particular area, and rightly so. A lot of my members are gay and the
type of treatment that they are given, sometimes within the service and
hopefully we are resolving that, but more importantly outside, where it
is known that they are gay, is outrageous. They have to deal with
enough difficulties without that being added on top. I think that those
are some of the examples that we would give.
Q
145
Mr.
Burrowes:
You mentioned that racial hatred provisions are
clear and well understood. Are religious hatred provisions that are now
in force also clear and understood?
Jan
Berry:
I am not sure that I did say that racial
hatred provisions are clear and
understood.
6
pm
Jan
Berry:
No, what I said was that I think that they
have been used very sensibly and sensitively. I think that some of that
is because people are scared to use them, because they are not quite
sure how to deal with them. For that reason, I think that they have
been used sensitively. That might be, if you like, reverse logic. So,
whatever power that you give to the police service, you must be very
clear about what you expect them to do, because these are very
sensitive areas.
I
have had to facilitate a dispute between the Christian Police
Association and the Gay Police Association over a difference of
opinion. If one of those groups were able to say that that was a
criminal offence, it would add another dimension to having different
views. It is a difficult area. When there is clear incitement for
hatred, that needs to be dealt with, but when people are using their
right to free speech, that is
different.
Q
147
Mr.
Burrowes:
Moving on, has religious hatred provision also
been dealt with sensitively and do you recognise the freedom of speech
provisions that are protected within
that?
Jan
Berry:
Again, it is very finely balanced. It has been
dealt with sensitively in the main, but that is largely because people
are fearful of overreacting and of the implications of such an
overreaction.
Q
148
Mr.
Burrowes:
Is there a need for clarity in that area? I am
aware of Association of Chief Police Officers’ guidance and hate
incident reporting
procedure.
A number of
incidents have been reported over the last few years. We have received
evidence of some examples, such as that concerning the Bishop of
Chester, who was investigated by police for suggesting that gay people
could reorientate to heterosexuality; Joe and Helen Roberts were
interrogated by police over concerns about the local council’s
gay rights policy; Sir Iqbal Sacranie, and so forth. Those incidents
have been and are being investigated by
police.
Is there a
need, whether it is in legislation or in guidance, for some clarity in
order to establish the areas of freedom of speech and of
criminality—the mindless acts and intentional threatening acts
that we would all want to
outlaw?
Jan
Berry:
I am not sure whether the examples that you
have given illustrate the need for legislation in the area. I think
that they are an example of the fear of how we use discretion today. I
do not think that police officers feel that they have the discretion to
take a certain course of action; we have become risk averse. People are
scared of the consequence of not acting, so they feel that they have to
be seen to do things a lot of the
time.
Q
149
Mr.
Burrowes:
Would you appreciate guidance to assist with
that problem? How can it be countered?
Jan
Berry:
I have no problem with guidance, provided that
it is not written in such a way that removes discretion from the police
officer. Police officers must be allowed to deal with situations as
they present themselves. If there are too many guidelines, the
officers’ hands are tied as to how they should deal with the
situation and that level of discretion is removed. Police officers need
to be allowed to make decisions using common sense and discretion,
without fearing that their decision will be finely examined and
criticised afterwards. That is why police officers stop doing certain
things.
Q
150
Mr.
Burrowes:
Finally, when we are ready to legislate on the
issue of homophobic hatred, which particular components of that offence
would you want clarified as criminal or not
criminal?
Jan
Berry:
The definitions that we have used thus far for
hatred could equally be used for homophobia. Incitement is the key, and
you would have to be very clear on the circumstances under which it
would not apply, particularly with regard to the area of religious
belief.
Q
151
Mr.
Coaker:
I have read the submission about the police in
part 10. Are there are any further comments that you would like to make
about the changes in police misconduct and performance
procedures?
Jan
Berry:
I am grateful for the question because the
Police Federation has worked very hard with ACPO and all partners,
including the Home Office, to draw together rules and regulations which
have the development of officers as their basis. Of officers who do not
do their job properly, 99.9 per cent. of them want to be able to do so.
So this is about reviewing how to do something and how to do it
properly. There has been much comment about lazy and incompetent police
officers, but those I have worked with are neither lazy nor
incompetent. Yes, like anyone else, we can make mistakes. The rules and
regulations should identify that, giving one the opportunity to
improve—and if one does not take that opportunity one may in the
fullness of time become a liability. That is when one’s service
should be dispensed with. I hope that ACPO uses these new regulations
in the way that is intended, allowing us to get on with the job but
also encouraging people to develop and to
learn.
Q
152
Harry
Cohen:
On prostitution, the National Association of
Probation Officers speaks of a treadmill of orders, failures to attend,
further orders and then imprisonment—and round and round they
go. I think of the referral orders, detention and other such things in
the Bill. The association estimates that something like 11,000 women a
year are being criminalised as a result. Do the police see it like
that?
Jan
Berry:
Not necessarily, although if we keep adding
offences it can become a very complicated area. Legislation should try
to rationalise matters. Adele has dealt with many of prostitution
offences. Do you want to say
anything?
Adele
Kirkwood:
The main thing is that the police service
recognises how important it is to assist those women who are carrying
out what they are doing. It is
not just about criminalising them. I know that many of my colleagues try
to link them to other agencies, to try to get them out of what they are
having to do. Sometimes it is not easy, but we would always try to do
that rather than to criminalise them.
Q
153
Harry
Cohen:
The previous Home Office team issued a report on
prostitution which suggested safe houses—basically, two or more
working together. It seems that the idea has been dropped. What is your
view of that proposal? Could it be part of a package to deal with
prostitution?
Adele
Kirkwood:
Our main concern was where they would be.
It might be a safe house if there are two or more, but if there are
three or four, five or six, and it is in a residential area, we would
have concerns over that, as we did with the original consultation,
which was quite a while ago. The consultation papers were feeling for
ideas on how to make what these women were doing safer, and suggested
that putting two or three together would help. Our biggest concern was
the knock-on effect for residents and neighbours, with calls to the
police and how to deal with people taking it upon themselves to deal
with matters. That was our main concern, but the consultation was some
time ago and I have not seen it since.
Q
154
Harry
Cohen:
Some people say that a different approach is needed
to trafficked women, and a light touch in relation to non-trafficked
women and rehabilitation, but there is a qualitative difference if
trafficked women are involved. The police are in an interesting
position. I wonder what you could do if legislation were to consider
that distinction. Would you be able to discern which were trafficked
women and which were not? What sort of powers would you need if
Parliament went down that road and made that
distinction?
Jan
Berry:
That is a huge subject. For trafficked
women—and children, for that matter—legislation is not
the only solution. It is about what provisions can be made for such
people. From the policing point of view, it raises the awareness of
officers and of how they would know that they were dealing with
trafficked women. It is not something that they would come across every
day, although they do so increasingly often. Many police officers will
look at a woman who appears to be enjoying herself and think that she
is doing exactly what she wants to do. It is only when you look into
the circumstances of that particular woman that you find an underlying
tragic story. Legislation can do some things, but the first thing that
you must do is to have an awareness programme and an acknowledgment
that that is going on. Then you have to provide solutions for where you
are going to house people and what support services you will provide.
You do not go into that without having some understanding of the
resource implications required by the
outcomes.
Q
155
Mr.
Garnier:
I want to go back to the Government proposal for
a new law in respect of incitement to homophobic hatred. We have not
seen what the Government will come up with yet, so this is all somewhat
academic. I am sure that the three Ministers know precisely what they
will say. For the moment, however, we have less idea than they
do.
Can you provide some practical
examples of the sort of behaviour that you think should be outlawed?
Clearly, this is not a debate about whether or not we approve of
homosexuality any more than an argument about race should include
whether or not we approve of French people. But hatred is, presumably,
something in your head. It is when it is expressed in a nasty way that
it has a direct
consequence—
Jan
Berry:
My understanding is that when you are
encouraging people to hate other
people—
Q
156
Mr.
Garnier:
Is it encouraging other people to hate or
encouraging other people to express their hatred through
violence?
Jan
Berry:
That is what I anticipate it to
be.
Jan
Berry:
No. I think that prevention of offences has to
be of prime importance. We should not have to wait for someone to use
violence before we see that there could be a violent act. That is why
there is the offence of
incitement.
Jan
Berry:
It could be, but incitement is a more sinister
word than
threaten.
Q
159
Mr.
Garnier:
I am trying to get my head round what you think
will come out of the legislative chain. We clearly want a good law that
works.
Jan
Berry:
I would be very supportive of that. At the end
of the day, we have to enforce the law, so it needs to work. We were
sceptical as to how the incitement to racial hatred offence would
operate. That is why I said that it has not caused as much difficulty
as we anticipated, perhaps because people have been fearful to use it.
If you are going to introduce a new offence of incitement to
homophobia, you have to have the same clarity or the interpretation
that those who are required to enforce the law will place upon
it.
Q
160
Mr.
Garnier:
But as yet your federation has not come
up with a firm policy or a view on the practicalities? You have not
come up with a form of words to help
us?
Jan
Berry:
In fairness, we only received notification of
the intention to include homophobia this morning. We are happy to go
away and look at that. We will also consult our members, and look at
how provisions on incitement to racial hatred have been applied around
the country. I know that your Committee intends to meet until the end
of November. We will carry out our consultation and come back to you
with the reply.
Q
161
Mr.
Garnier:
Are you aware whether there is an
equivalent law to the one that is proposed operating in Northern
Ireland? Or is that law in relation to goods and services
only?
Jan
Berry:
I am not aware of
that.
Jan
Berry:
We have, and we are meeting them
tomorrow.
Mr.
Garnier:
That is very helpful. It will be very useful to
hear from them how the law has been implemented there, what it looks
like and whether it brings with it the concerns that the Evangelical
Alliance has about the Bill, and whether it addresses the hopes and
fears of those who are not of that disposition. There is a huge
polarised argument and I am trying to find a way through
it.
Jan
Berry:
I understand your difficulties.
They are some of the same ones that police officers will face. There is
a huge difference between people who are
sensitive—
6.15
pm
The
Chairman:
Order. I must bring down the guillotine. That is
the end of the time allotted for the Committee to ask questions of this
panel of witnesses. I thank them for their contributions and invite the
next set of witnesses to take their places.
If you are comfortable, could
you please introduce yourselves? After that we should be grateful if
you would take questions from the
Committee.
Ben
Summerskill:
I am Ben Summerskill, the chief
executive of Stonewall.
Alan
Wardle:
I am Alan Wardle, the director of
parliamentary affairs at Stonewall.
Q
163
Mr.
Burrowes:
Given the current legislation, could you outline
why there is a need for more? Could you be specific about the
particular instances and acts that would need to be dealt with by new
legislation that are not covered by the present
provisions?
Ben
Summerskill:
We are anxious that, although there is
protection around racial and religious hatred, there is no such
protection for gay people, and we are mindful that there has been an
increase in the incidence in recent years of what seem to us to be very
obvious examples of incitement to hatred that would not otherwise be
caught by the criminal law. One key area is in the creation and
distribution of what is quite often reggae music. If you will indulge
me, I would be happy briefly to share with the Committee some examples
of the sort of thing that we think should be caught by the law. It is
only by quoting them that their offensiveness can be made
clear.
Ben
Summerskill:
There is an artist called Beenie Man who
has produced a record called “Hang ‘em high”,
which includes the
lyrics
“Hang
chi chi gal wid a long piece of
rope”.
The key lyric in
that means, “Hang lesbians with a long piece of rope.”
The same guy has created a single called, “Batty Man Fi
Dead”, which essentially means that gay men should die. That
says
“All batty man fi
dead!”
or, “All
gay men should die.” Another single is a song called
“Roll Deep”, of which the key chorus
is
“Roll deep
motherfucka, kill
pussy-sucker”,
which is a
reference to lesbians. It
continues
“Tek
a Bazooka and kill
batty-fucker”,
which
means, “Take a rocket launcher and shoot gay men dead.”
An artist called Buju Banton has produced a single called “Boom,
Bye Bye” which essentially means “Goodbye” and
again involves encouragement to use an automatic gun to kill gay
people.
An artist
called Vybs Kartel has made a single called “Sen On” that
includes the
lyric
“Faggot
fi get copper to di
heart”.
“Copper”
is a reference to a bullet, so the lyric means that faggots must get
bullets to the heart. Then there is
“Batty bwoy
stand up anna talk and man a
park”,
which is about a
gay man talking to a man in a park. One of the lyrics
is
“If you are
from faggoty
Waterford”—
which
is a reference to somewhere in the West
Indies—
“A
wet yuh up wid di
Maggy.”
which is a
reference to a Magnum gun, and means, “I will kill you,”
or, “You should be killed with a
Magnum.”
I want
to emphasise that CDs and songs like that are not just being performed
in obscure dancehalls. Many of them were available yesterday afternoon
for download on Amazon.co.uk. Those are explicit examples of music that
we think should fall foul of criminal law.
In terms of literature, there
has been a surge in recent years. That is why we have become concerned
about the issue—Stonewall has never been in the business of
asking for legislation just for the sake of it. There has been a surge
in the distribution of literature that clearly incites hatred against
minority communities. This is a British National party leaflet with a
series of pictures of murdered children. It was widely distributed not
long ago in north Wales. It says,
“All these
children would be alive today if our spineless politicians had the guts
to declare war on the
paedophiles.”
It
continues:
“Small
wonder that a climate has been created in which these evil creatures
feel they can operate
freely.”
The leaflet
states:
“TV, radio and
the press spew out pro-homosexual propaganda”.
and it concludes:
“The vote by majority of
Labour, Lib-Dem and Conservative MPs to reduce the age of homosexual
consent gives every indication that MPs are trying to legalise child
sex step by
step.”
The
Chairman:
Order. I think that there is enough illustrative
detail to make the point. We need to get more questions in. You may
have the opportunity to bring more in
later.
Ben
Summerskill:
There is a catalogue of similar material
that we can share with you.
Q
165
Mr.
Burrowes:
Those are abhorrent examples that everyone would
rightly deplore. Have there been examples or evidence of such rap
lyrics leading to criminal offences by those who have heard
them?
Ben
Summerskill:
That is, of course, the key issue in
incitement. The level of offence that incitement to racial hatred
captures is that in which incitement is directed against a community as
a whole rather than an individual—in which I do not say that
someone should attack you, but suggest that they should attack anyone
who happens to be like you.
As for the
context in which these lyrics and leaflets are
distributed, in this instance, the Crown Prosecution Service confirmed
for us last Friday that in the past two years there has been a 167 per
cent. rise in the number of convictions secured for offences with a
homophobic element. That is not what is sometimes characterised as
cranky complaints, or cases that might not have resulted in a
conviction; that is 600 offences. The Home Office acknowledges that the
vast majority of cases of homophobic violence in this country may well
not be reported. Only yesterday we marked the second anniversary of the
day on which Jody Dobrowski was kicked to death on Clapham common just
for being gay—there is no dispute about that.
That is the public context in
which we are anxious that such incitements are taking place. We simply
find it difficult to accept any longer that there is no connection
between the distribution of such poison in the public domain and the
outcomes that we are seeing in terms of anti-gay violence on
Britain’s
streets.
Q
166
Mr.
Burrowes:
In terms of those examples, can you say whether
police have taken any action? Have they been prevented by current
legislation from enforcement
action?
Ben
Summerskill:
As far as we understand—you have
heard from the Police Federation—the issue is that the police do
not have the capacity to take action that is likely to lead to
prosecution if they cannot make a direct connection between the
incitement to hatred and the individual who becomes the victim of
violent
crime.
Q
167
Mr.
Burrowes:
Are there examples of the CPS taking no further
action in relation to complaints concerning those particular
examples?
Ben
Summerskill:
There are examples of police feeling
unable to take further
action.
Q
168
Mr.
Burrowes:
Have they made the decision not to take further
action following complaints about those
examples?
Ben
Summerskill:
There have been complaints, and people
have been advised that there is simply no legal basis on which to
proceed with a
complaint.
“These
protections aren’t about preventing people expressing their
religious views in a temperate
way.”
Can you give
examples of what you think would be religious views being expressed in
an intemperate way that need to be covered? You make the point that
there needs to be a link between those rap lyrics
and
“fundamentalist
claims that all gay people are
paedophiles”.
Those are
your words.
Ben
Summerskill:
As you have asked, there is another case
that I have details of here, which occurred recently. A gentleman set
up a group site on Facebook, which has almost 4 million users in this
country. It was called “Homos burn in hell”. His initial
defence was that he was religious, and the claim was that this
represented Leviticus. Accompanying the headline “Homos burn in
hell” was a picture of a Ku Klux Klansman with a burning
cross—a contemporary image of an organisation known to carry out
violent attacks on minority communities. The site included the legend,
“I do not advocate homophobia—I prefer to call them AIDS
monkeys”. I should emphasise—I say it with some
reluctance—that that was not an obscure guy living in an attic
somewhere. The man who put up that website was the elected official of
a mainstream political party in this
country.
Ben
Summerskill:
Well, he is the chair of Conservative
Future in the north-west, and he has acknowledged that he was
responsible for that site. That is exactly the sort of
claimed—
Q
171
Mr.
Burrowes:
Do you think that that example should be covered
by a homophobic hatred
offence?
Ben
Summerskill:
We would suggest, and I think that most
right-minded people would suggest, that setting up a website as
inflammatory as that would substantiate a claim that they were inciting
hatred.
Q
172
Mr.
Burrowes:
You will appreciate the need for clarity. What
do you say should not be covered? I refer to evidence that has been
presented to the Committee that says that you have argued on previous
occasions, when Christians have expressed concerns about the
implications of sexual orientation legislation on religious liberties,
that they have been guilty of inciting hatred against gay people. You
make reference to a prayer rally outside Parliament in
January.
It is
important, when we are considering freedom of expression, that you make
the point about what is and is not covered by your references to
inciting hatred against gay people. We have had reference in evidence
sessions to the Bishop of Chester, to Joe and Helen Roberts—you
will be familiar with the examples—to Iqbal Sacranie and others.
For example, one complaint was about the Bishop of Chester talking
about gay people needing to be, in his words,
“reorientated” to heterosexuality. Would you seek to have
such examples covered in
legislation?
Ben
Summerskill:
You have mentioned one or two specific
instances. If the Committee does not mind, I shall respond
specifically. You mentioned what you described as a “prayer
rally” outside Parliament in January. That was actually the
occasion of a vote on the sexual orientation regulations, when almost
100 children of primary school age were forced to stand in the freezing
cold, some of them beneath posters that said, “Don’t
corrupt us”, with a gentleman shouting, “Don’t
allow homosexuals to pervert these children”. That is completely
different from people holding a perfectly proper
demonstration.
Q
173
Mr.
Burrowes:
Should those incidents be covered by an offence
of inciting hatred against gay people?
6.30
pm
Ben
Summerskill:
Our view is that the gentleman’s
shouting, “Don’t allow homosexuals to pervert these
children”—these were little tots, not adolescents or
19-year-olds—was almost certainly incitement. However, we are
crystal clear that people are perfectly entitled to express their
religious views, not least because hundreds of thousands of lesbian and
gay people are profound believers in one religion or another. We are
also crystal clear that the temperate expression of religious views
should not be covered by the legislation. We hope that the draft
clauses, when we see them—obviously, just like you, we have
not—will make that both possible and
clear.
You mentioned
some comments made by Sir Iqbal Sacranie at the beginning of last year
about homosexuals and disease. You are welcome, Mr.
Burrowes, to check the record as hard as you wish. You will find that
our view of those comments, at the time that they were made on the
“PM” programme was that they were offensive. However, our
view also, as was expressed at the time, was that people are entitled
to make fools of themselves and say things of that sort. Indeed, no one
connected with Stonewall in any way whatsoever called on Sir Iqbal to
be arrested or investigated by the police for an instant. His views
were factually inaccurate and offensive, but no one suggested that they
should be caught by a law that involved inciting people to
hatred.
Q
174
Mr.
Walker:
I was interested to hear about the BNP leaflet,
bearing in mind that I have a BNP problem in my constituency. They seem
to hate everyone—I do not know where they get their vote from.
They certainly do not like me at all. I have some sympathy, but that is
the BNP for you.
Where
do you think the line is between offensive behaviour and inciting
hatred? Where is that line
crossed?
Ben
Summerskill:
As Mr. Garnier has pointed
out, until we see some draft regulations, it is difficult to be crystal
clear about a line. At the end of the day, a jury would make
that—
Ben
Summerskill:
I have just said that I hope, with some
firmness, that we take a firm view that the temperate expression of
offence is not something that should be a matter for the criminal law
in this area, while incitement to hatred, which most people at home can
understand reasonably clearly, should be. However, as is always the
case with these things, they are notoriously facts-specific, so it is
difficult to create a hypothetical situation. That is why I prefer to
respond to specific instances, such as those that have been cited. One
can then take a view as to whether this should fall one side or the
other of a
line.
Q
175
Mr.
Heath:
I want to return to the absolutely appalling lyrics
to which we referred earlier. I think that anyone listening to that
would think, “How on earth is this being sold on our
streets?” It is hard to understand how so-called respectable
companies can be associated with lyrics of that kind. I know that
various people have tried before to do something about that, but I am
not clear about why no prosecution is possible under
incitement-to-violence legislation in that respect, because the lyric
in question was clearly not an incitement to hatred, per se, but an
incitement to violence. I am interested to know why the police or the
prosecuting authorities do not feel able to proceed on that
basis.
Ben
Summerskill:
Because they have to make the connection
between the incitement and a specific offence that takes place. So,
they would have to have someone who carried out a homophobic attack
saying, “I was encouraged to do so by this specific
individual”, and the encouragement would have to be specific
to the victim or an identifiable group of people. An
identifiable group of people might be six lesbians who all lived in one
house. If someone said, “We’ll attack the inhabitants of
that residence,” there would then be an identifiable
connection.
It was
because of what was then described as a lacuna—although
“gap” seems a rather more straightforward
word—that the legislation on incitement to racial hatred was
first introduced 30 years
ago.
To what extent,
in your view, is intent an important part of the offence that we are
considering?
Ben
Summerskill:
Our view is that intent is an important
part of the offence, certainly in respect of the incitement to racial
hatred protections that we are committed to as the starting point for
the legislation. The Liberal Democrats’ manifesto in 2005
pledged that the party would support protections on the same basis as
those for race. That requires intent or recklessness as to outcome that
is sufficient to suggest clear intent.
Q
177
Mr.
Heath:
But it would not be difficult to impute intent into
the examples that you quoted. Have you ever found examples where it
would be impossible to impute intent, but where you might consider a
reckless disregard of the consequences to be the argument?
Ben
Summerskill:
Even in the case of music, it would be
perfectly possible for someone who sang that sort of music to say that
they had no intent for it to lead to any violent
outcome.
Q
178
Mr.
Heath:
Do not the words speak for themselves? If you are
calling on people to take a gun and shoot somebody through the head,
that is intent, not
recklessness.
Ben
Summerskill:
The simple fact is that someone would
still be able to claim that it was a slightly fantastical, imaginary
incitement. As always with these offences, the context is critical. The
circumstances in which those lyrics or publications are created and
then disseminated are likely to be critically important in determining
the intent of the individuals involved.
Q
179
Mr.
Heath:
The position that you quote, as far as I
understand, clearly supports free speech for those with whom you
profoundly disagree, and indeed people whose views you find offensive.
How do you feel that we should safeguard that within the prospective
legislation?
Ben
Summerskill:
I expect that everyone in this room is
absolutely committed to free speech. However, we all acknowledge that
that does not give every person in the country the licence to do or say
anything that they wish. The whole nature of criminal law is that it
constrains people’s freedom of speech or action. We would have
no difficulties if the provisions as drafted indicated the mindfulness
of those who created them for the importance of free speech. Nobody
wants to be unnecessarily draconian in any way whatsoever, and that is
the proper message to give. There would be guidance published with the
Act so that the intended nature of the protections would be made much
clearer to all sorts of people.
Q
180
Mr.
Heath:
So, you would do that through guidance on
prosecution, rather than putting it on the face of the
Bill?
Ben
Summerskill:
That is a matter for Ministers. From
time to time situations have arisen in which there have been claims of
excessive heavy-handedness or clumsiness by the police—clearly
the police have a very difficult job in this area. Their job would be
made much easier if there was guidance that clarified the nature of the
offence that was intended to be called.
We would have no objections to
any indication in the Bill that there was a mindfulness of the
importance of free speech. Indeed, we would not object to an indication
in the legislation that there was mindfulness for no one to be deterred
from expressing a genuine religious view in a temperate
way.
Q
181
Mr.
Hollobone
:
I want to explore a little further why
the existing law does not address your concerns. In particular, I want
to look at section 5 of the Public Order Act 1986 and the case of
Mr. Harry Hammond, with which you may be familiar.
Mr. Hammond was a 69-year-old pensioner engaged in street
preaching in Bournemouth. He was holding a sign that included the words
“Stop homosexuality”, “Stop lesbianism”,
and “Stop immorality” when he was surrounded by members
of the public, some of whom knocked him to the ground. Mr.
Hammond was arrested under the Act and eventually found guilty of a
section 5 public order offence. His conviction was upheld in the High
Court, which held that the magistrates had been entitled to find that
relating homosexuality to immorality was
insulting.
We must
decide whether a change to the law is necessary, and I suggest that in
many respects the order goes further than you are asking. You are
asking for the incitement of hatred to be a crime, when it seems from
that case that existing legislation provides that even relating
homosexuality to immorality is already against existing
legislation.
Ben
Summerskill:
The circumstances of the case you
outlined are very different from those that would be caught by this
offence because to be caught by the Public Order Act a complainant must
be present at the time. A converse or contrasting instance that would
be caught as an incitement offence, but not by the Public Order Act,
might be a poster on a wall. If someone was not present to say that
they were offended or insulted
by it, the police would not have grounds to proceed under the Public
Order Act, although that poster could, depending on its content,
encourage incitement to hate in the wider
community.
Q
182
Mr.
Hollobone:
So you would dispute evidence given to this
Committee by Christian legal groups that says that it is not necessary
under current incitement laws to show that anyone was persuaded by, or
violently acted on, homophobic song lyrics. They are telling us that it
is not necessary to demonstrate that there was a specific victim, and
that the only test is to demonstrate that there is incitement to
violent
acts.
Ben
Summerskill:
Clearly, I am not sure what that
evidence or opinion is, but under the Public Order Act there must be a
complainant and someone must be insulted or abused and present at the
time or the police cannot act. I do not think that those groups would
be the first to elide the various issues, but the distinction with this
offence is that the person or community to whom insult and, indeed,
detriment is caused is not necessarily present at the moment that the
offence is
committed.
Q
183
Mr.
Hollobone:
My last question relates to section 146 of the
Criminal Justice Act 2003, which I understand includes
provisions better to deter homophobic crime by providing tougher
sentences for offences motivated by hostility based on the sexual
orientation of the victim. Are you saying that that law is not tough
enough?
Ben
Summerskill:
No. With respect, I am not saying that
it is not tough enough. We helped Members of the House to draft the
amendments that were introduced into that Bill, but that provision
created the possibility of an aggravated sentence for anti-gay hate
crime on the street, so it enables courts to give a higher sentence to
someone who is convicted of an assault on the street. It is actually a
different area of law from incitement and, indeed, from the completely
differential protection in the Public Order Act some 20 years
earlier.
6.45
pm
Q
184
Harry
Cohen:
In a way, rap figures are easy, and we all agree on
that. However, the prejudiced Christians or members of other religions
are not so easy. Let me put to you a summary of what they say;
“My religion says homosexuals are evil. They are a pestilence.
They must be punished. They will rot in hell and in life, too.”
Now that is clearly a little summary of what they say, and it is
offensive. But they would also add that it is their free speech, and
they would even say that it is temperate. But is not that hatred? Is
not that something that should be covered by this
law?
Ben
Summerskill:
Again, I hope that we have made it
crystal clear that we believe that there should be protection for
people to express a religious view in a temperate
way.
Ben
Summerskill:
In an offence such as this, the issue of
context is critically important. In our view, therefore, the expression
of the ideas of the gentleman
from the Conservative Future website, who claimed to express a religious
view, seems to us to be an act that should be caught by the law. One
might also want to look at the context in which any expression is made
that people should be killed or put to death because they are
homosexual—members of the Committee will be mindful that that is
from chapter 20, verse 13 of Leviticus. One might want to inquire
whether that person was pursuing and articulating what is said in verse
10 or in verse 16 with quite so much enthusiasm; those versus make the
same requirement that anyone who has committed adultery or who
blasphemes is to be put to
death.
Clearly, in
context it would be a very good defence to say, “Well, I have
been going around telling every adulterer and homosexual that I meet
that they should be put to death.” Quite often and quite by
chance, we find people choosing to peddle their particular obsession
with homosexuals out of that religious context as a
whole.
Q
186
Mr.
Garnier:
I want to go back to the distinction between
temperate and intemperate expression of incitement. Surely the
temperate expression of incitement is much more effective than the
intemperate. If part of your case is hung on the mood in which the
words are uttered, you are cutting yourself short. Are not you and I
able to persuade each other all the more effectively by being polite
and temperate? Whereas, if I started ranting, you would think,
“Well, the old boy’s lost it,” and you would pay
no more attention—you may have thought that anyway—to
what I had to say.
Therefore, if you get the
eccentric, demonic person standing at Hyde park corner saying deeply
unpleasant, ignorant and silly things, surely no one will pay attention
to him apart from those who already adhere to what he says. One may be
offended and insulted, but one would not be placed in any danger and
the thing to do would be to move away from Hyde park corner. If I said
the sorts of things that that lunatic would say in a temperate way,
surely the effect of the words is altogether more
telling.
Ben
Summerskill:
In fairness, you are making a connection
that I have never made, and I know of no one from Stonewall who
has—it is possible that briefings that the Committee has
received from others have suggested that. I have never suggested that
one should defend temperate incitement. We have referred carefully to
temperate expression of religious opinion, which seems to us to be the
critical distinction. At the end of the day, if something is incitement
to hatred, whether it was expressed temperately or intemperately would
almost be immaterial. You make the extremely good point that you could
express incitement to hatred in a hugely damaging way that might appear
on the face of it to be decent and straightforward and thoughtful.
However, as far as I am aware, I have never said that temperate
incitement to hatred that leads to violence on the streets is somehow
okay.
Q
187
Mr.
Garnier:
I want to put two points. First, I would like to
ask a question and secondly, I would like to put some words to you that
the director of Liberty has uttered, with which I am sure you are
familiar. It would be good to have your view on them.
The question is in regard to
Northern Ireland, where there is already a law along the lines of what
you are seeking. What is your experience, from people that you are in
communication with in Northern Ireland, of the way that that law is
working? Have there been any or many prosecutions? You might have heard
the end of the last session with the
police.
Ben
Summerskill:
I heard you ask the witness if there has
been a law in Northern Ireland. There has been a law and protections of
the sort that we are seeking since 28 September 2004, if I remember
correctly. Those protections are very similar to the protections around
race. As far as we understand it—not wishing to typify any part
of the United Kingdom—in an area where sometimes people can fall
prey to intemperance of expression, there has been no substantive
difficulty either for people of religious belief or for the Police
Service of Northern
Ireland.
Q
188
Mr.
Garnier:
Do you know whether there have been any
prosecutions? What you have said is all very well and we could all
disapprove of all sorts of
things.
Ben
Summerskill:
We are not aware that there have been
prosecutions on these grounds in Northern
Ireland.
Q
189
Mr.
Garnier:
Do you know whether that is because the police
have not bothered—I do not mean that they are too lazy to do
anything, but that they have not found it necessary to prosecute
anybody because nobody is doing it—or because they find it
administratively convenient not to get stuck into this rather difficult
area of
law?
Ben
Summerskill:
We have not had complaints that the
police have failed to act and if the law is acting as a sufficient
deterrent to the incitement to hatred of homosexuals in Northern
Ireland, that seems to us rather a good
thing.
Q
190
Mr.
Garnier:
Let us look at what Shami Chakrabarti said in an
article in The
House
Magazine on 8 October. You
are probably familiar with
this:
“What
seems to me to be one of the dangerous by-products of so much
legislation, so much authoritarian legislation in the last decade, is
that we can become quite infantilised as a population, that we think
that everything that isn’t banned by criminal law equals
sensitive, smart, good conduct. And what we should have is a space, a
personal ethical moral space that governs us before the criminal law
governs us.”
That might
be the counsel of perfection, but in senior common rooms up and down
the country and no doubt in the meeting rooms in this House, all sorts
of people would understand what she is saying. What we need to be
persuaded of is that there is a genuine evidence-based need for a law
that protects real people from real crime and not just something that
it would be nice to have because it would send out a
message.
Ben
Summerskill:
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, but we have cited very clear examples of what we regard as
transparent evidence that there is an
issue.
Polling
conducted by YouGov confirms that almost 90 per cent. of electors think
that there should be an offence of incitement to hatred on the grounds
of sexual orientation. We say—I suspect that the voters who have
been polled acknowledge this—that there is clear evidence of
violence against gay people on our streets that is almost certainly
connected, even if the absolutely direct connection that would enable
the current criminal law to bite cannot be proved to
exist.
Q
191
Mr.
Garnier:
This is not an idea that I have thought about
very much, but it just occurred to me as you were talking just now. We
talk about hatred, and for many traditionalists who practise within the
criminal law what they look for in a criminal law is protection against
injury to the body or injury to property: murder; assault; arson.
Although hatred is ignorant and unpleasant, especially when it is
irrational, it is much more difficult to legislate against because it
goes on inside people’s heads and does not necessarily lead to
an outward expression of physical consequences. Would it be helpful to
frame the law so that it said that people should not be required or
forced by other people’s misconduct to live in fear, rather than
trying to outlaw hatred? I accept that I only just thought about this
while we were having this conversation.
Ben
Summerskill:
You are taking a progressive approach to
modernising the law. There is an argument for it; I have no doubt that
the parliamentary counsel would be happy to have that argument, too. We
think that a framework has been in place around race for 30 years that,
in spite of the difficulties that you have just outlined, has provided
protection and significant deterrents. It has been a framework whereby
the Attorney-General has had to approve prosecutions and juries need
carefully to consider the outcome of those prosecutions. We are
perfectly happy to trust 12 sensible people to make a judgment about
what is incitement to hatred.
Q
192
Mr.
Garnier:
The trouble is that the 12 sensible people do not
get to be 12 sensible people until the police officer has considered
the facts in front of him and reported them to the Crown Prosecution
Service, which then has to make a decision about whether to take it to
the Attorney-General. There is quite a long preparatory process before
you get anywhere near a court. We need clarity at all stages, not only
at the trial.
Ben
Summerskill:
That is true, but we are not convinced
that clarity would be assisted by having a completely separate set of
regulations for one minority community as opposed to others. Quite
often the clarity is assisted in law by allowing the police and
prosecution services to deal with a similar set of protections that
they can apply in a way that they find easier and more transparent
rather than more complicated than
previously.
Q
193
Mr.
Garnier:
The more I listen to arguments
and evidence about this subject, which is clearly troublesome for many
people, the more I come to the conclusion that the
gap for what is loosely described as the Christian right is not as big
as many people think. Presumably the Christian right, or those who do
not think that the law is necessary, do not want to make members of
minorities live in fear or suffer hatred.
Ben
Summerskill:
I am sure that that is true. The
Christian right may not always be right, but they are
perfectly right to express concern that their temperate and fair-minded
expression of religious belief should not be
curtailed.
Mr.
Garnier:
I think that we are stuck on the problem that we
do not yet know what the Government will come forward with. However, I
must say that I have found this conversation
interesting.
The
Chairman:
We are within the last minute, and I do not
think that there is time for one more question and answer. That brings
us to the end of the time allotted for the Committee to ask questions
of these witnesses, whom I thank for their attendance and
contributions.
Further consideration
adjourned.—[
Mr.
Khan.]
Adjourned
accordingly at Seven o’clock till Thursday 18 October at Nine
o’clock.
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