Policing and Crime Bill

---

The Committee consisted of the following Members:

Chairmen: Hugh Bayley, † Sir Nicholas Winterton

† Austin, Mr. Ian (Dudley, North)(Lab)

† Blackman-Woods, Dr. Roberta (City of Durham) (Lab)

† Brokenshire, James (Hornchurch) (Con)

† Burns, Mr. Simon (West Chelmsford) (Con)

† Campbell, Mr. Alan (Parliamentary Under-Secretary of State for the Home Department)

Cawsey, Mr. Ian (Brigg and Goole) (Lab)

† Coaker, Mr. Vernon (Minister for Security, Counter-Terrorism, Crime and Policing)

† Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)

† Fitzpatrick, Jim (Parliamentary Under-Secretary of State for Transport)

† Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

† Holmes, Paul (Chesterfield) (LD)

Keeble, Ms Sally (Northampton, North) (Lab)

† Kirkbride, Miss Julie (Bromsgrove) (Con)

† Ruffley, Mr. David (Bury St. Edmunds) (Con)

† Waltho, Lynda (Stourbridge) (Lab)

Wilson, Phil (Sedgefield) (Lab)

Chris Shaw, Andrew Kennon, Committee Clerks

† attended the Committee

Witnesses

Shami Chakrabarti, Director, Liberty

Anita Coles, Officer, Liberty

Mr. Peter Lodder, QC, Chairman, Criminal Bar Association

Mr. Martin Evans, Bar Council

Column number: 79

Public Bill Committee

Thursday 29 January 2009

(Morning)

[Sir Nicholas Winterton in the Chair]

Policing and Crime Bill

Written evidence to be reported to the House

PC 10 Mayor of London

PC 11 Dr. Helen Self

9 am

The Committee deliberated in private.

9.4 am

On resuming—

The Chairman: I welcome our witnesses from Liberty and the Bar Council to the sitting. I remind hon. Members and witnesses that we have until 10.25 am. We then have to adjourn, because the House begins to sit for Question Time. For the record, I ask our witnesses to introduce themselves to the Committee, please.

Martin Evans: Good morning. My name is Martin Evans and I represent the Bar Council.

Peter Lodder: Good morning. My name is Peter Lodder and I am the chairman of the Criminal Bar Association.

Shami Chakrabarti: I am Shami Chakrabarti, the director of Liberty, the National Council for Civil Liberties.

Anita Coles: I am Anita Coles, policy officer at Liberty.

The Chairman: Thank you. We shall now begin the questioning and I go straight to the lead spokesman for Her Majesty’s Opposition, David Ruffley.

Q128 Mr. David Ruffley (Bury St. Edmunds) (Con): Thank you, Sir Nicholas. Good morning. I should like to put my questions in two parts: part 1 on policing and part 2 on sex offences. Ms Chakrabarti, I read your submission with interest. To kick off on policing, why are you so critical of the provisions giving the Association of Chief Police Officers a right to nominate to the senior appointments panel and of the power of ACPO when it comes to sitting at the national table in the tripartite structure? In fact, you want a deletion of its role. Could you explain your concerns?

Shami Chakrabarti: This is not in any sense a concern about having senior police officers involved in this kind of process. It is a concern about the nature of the creature called ACPO. There is no clear purpose for ACPO. It is not a creature of statute. It is a private company. It is exempt from freedom of information legislation. It has no clear defined role in our constitution. In practice, it seems to have developed over the years to be a range of different animals. Sometimes it appears to be a campaigning pressure group in very sensitive, sometimes party political, debates about new police powers. Sometimes it seems to be something akin to a public body that issues guidance—for example, on very sensitive police power matters. Sometimes it seems more

Column number: 80

like a staff association for chief police officers, who obviously need to communicate with each other and share expertise and experience.

There is a need for all those functions, but we think there is a real concern about ACPO being all those things. In particular, it has become one of the most powerful policing organisations in the land and it is not a creature of statute. Parliament has never taken the opportunity properly to define its role. It is possible that its roles cannot all live in one body and it is time to grip the issue and decide that it perhaps is a number of different bodies—some that are properly regulated by statute and others that are a matter for the police themselves to organise as a staff association or pressure group. It is dangerous, therefore, to give it further power without taking the opportunity to define what it is and what its role should be in modern policing.

Q 129Mr. Ruffley: I will stay in order, Sir Nicholas, because part 1 of the Bill is entitled “Police Reform”. Therefore, Liberty’s observations, which I think are noteworthy, go to the heart of the tripartite structure, but I notice, Ms Chakrabarti, that you have not taken the opportunity to lay down any amendments. Is that because you do not want to start unpicking the tripartite structure as such? You are saying that there are certain functions that you do not think ACPO, as currently constituted, should be involved in, such as senior appointments. Would that be a fair summation?

Shami Chakrabarti: Absolutely right, sir. We do not take principled objection to the tripartite structure, but we do have concerns about the role of a modern police force in a modern democracy. We see it as a vital agency that serves the rule of law, rather than serving the Executive at local or central level. Ultimately, the police are servants, in a way, of the statute book. Through the statute book, you and your colleagues here communicate directly with each police constable doing their job in the land, and through the statute book you also, hopefully, communicate clearly with people who are helped and, sometimes, rightly hindered by the police. That is in the best traditions of policing in this country. ACPO may well have a role, but its current role has just developed without the proper intervention of Parliament. It is a creature that has grown up organically. It is a company that largely regulates itself, but at the same time is given more and more statutory power.

Q 130Mr. Ruffley: ACPO has an interesting governing structure. When you look at its website and speak to its members, it does lots of things that many people would not think that it does. I shall move on from that. Clause 11 gives new powers to Ministers to make directions, and I note that you fear that that centralisation could lead to unwelcome politicisation. Let me put the counter to that, the case for the clause and something that Liberty might like. It would give Ministers the power, for instance, to direct that there could be, as suggested in Ronnie Flanagan’s interim report, a national suite of forms for the police, with minimum reporting requirements, so there would be a standardised set of forms across the country; saving police time and creating clarity for defence counsel, and lawyers generally, to rationalise the system. The only way in which that can be done is through centralised control. That would not be politicisation. What objection would you have if the power were used to have a national suite of forms?

Column number: 81

Shami Chakrabarti: There would not be an objection to that use. All or most broad powers in statute are capable of good and bad use. Our point here is a general fear about Executive power over policing, rather than parliamentary legislative power, for example, or other types of power over the police. We think that there has been too much Executive control of policing in recent years and we would like to see that tide turned. Anita Coles might have something to add on that.

Anita Coles: This allows the Secretary of State to direct just one police force to do something. That raises the potential for the Executive to impose its will on one police force only, where there may be questions about whether it is performing well. This is a potential problem that we wish to raise.

Q 131Mr. Ruffley: May I turn to part 2 and the issues relating to sex offences and prostitution? Mr. Lodder, on the new offence of paying for sexual services of a prostitute controlled for gain, we have already heard quite a bit of concern about the drafting and whether as drafted it would be enforceable in an effective way. Could you give us your views, as an esteemed lawyer, on what the profession thinks about how those words will be interpreted in practice, and how the police will interpret them?

Peter Lodder: I will give you my views—whether as an esteemed lawyer or not, I do not know.

Mr. Ruffley: Forgive my editorialising.

Peter Lodder: Our concern is that, first and foremost, this is creating what we call a strict liability offence, so it matters not what the man—as we shall assume it is for these purposes—knows when he enters into a transaction of this sort. Even if he were to make inquiry as to whether the prostitute is in fact being controlled for gain, he would not be acquitting himself of any charge. The nature of this type of relationship is such that it would be impossible, even if one was to pursue an inquiry, to discover whether the person was controlled for gain, so one can understand the rationale behind making it a strict liability offence.

The difficulty, it seems to us, is that inconsistencies are created, for example, by the fact that the offence is not limited to commission within this jurisdiction. There are inconsistencies in the sense that if one were to go to a country where prostitution is legal, such as the Netherlands, one would still be committing an offence in this country. It seems to us that that sort of inconsistency is an undesirable feature in a piece of legislation in the type of world in which we now live. Moreover, the purpose behind this would appear to be to try to reduce prostitution. We are not convinced that this is necessarily the best way in which to go about it. It is a very heavy-handed way of doing it. Is the real objective here to stop prostitution, or not? Is it a question of saying that if you pay for sex then that must be criminalised, or is it—as this is—an attempt to try to get to those who are behind prostitutes? Our fear is that we will not achieve either of those things because of the way in which the clause is currently phrased.

Our concerns are that individuals will be convicted without knowing what they are involved in. Alternatively, this will not lead to any prosecutions because the information will not come to light. Bear in mind that

Column number: 82

this is the source of income for the prostitutes concerned. In those circumstances, we feel that at the very least there should be an element of intentional knowledge or belief on the part of the person who would be prosecuted under this clause.

Q 132Mr. Ruffley: Evidentially, would not that intent be very difficult to show?

Peter Lodder: I think it would, but the trouble with the offence as it is now is that although it would be, in one sense, easy to prove because of the strict liability nature, we run the risk of creating the inconsistencies that I have already pointed out. Moreover, if prostitutes know what is happening, they are very unlikely to give the sort of information that will lead to a prosecution.

Q 133Mr. Ruffley: May I ask Ms Chakrabarti for her thoughts on that same question?

Shami Chakrabarti: I have little to add to the Bar Council. We are concerned about prostitution. If you are a human rights advocate, you take no joy in the idea that people should be bought and sold for money, but one has to take great care in this area to ensure that use of the criminal law is helping the problem and not making it worse. We share the concerns about an offence that is unclear as to whether it is an offence that is banning prostitution, or whether—as it would appear on its face—it is about attempting, laudably, to tackle the pimps, the traffickers and the controllers of women. If that is what you seek to do, strict liability is difficult. I do not just mean from the point of view of the punters. It is not just about fairness and arbitrary results against the customer. If you seek to protect women from pimps, traffickers and controllers, you need to impose some kind of obligation on punters to take some care as to who the woman is and what the circumstances are. If it is strict liability, you do not do that.

We also have real concerns about the closure orders, and the dangers of making women and their children and families more vulnerable, rather than protecting them.

Q 1347Mr. Ruffley: We all know about the problems with strict liability, but if we do not use strict liability because it is difficult to work, how would Liberty draft an alternative clause that imported some notion of intent on the part of the man? In other words, let us talk about this Bill and trying to make it better. Could you with all your skills—and the Bar Council as well—draft an alternative clause that would import some notion of intent to get away from strict liability?

Shami Chakrabarti: To be clear about my position, I do not know whether an offence per se is the right way to protect vulnerable women.

Mr. Ruffley: Let us assume that.

Shami Chakrabarti: If there is to be an offence, those who draft criminal offences have various choices to make about what element of intention there should be. At one end of the scale, an offence such as this would include intention in all aspects—an intention to pay for sex, and full knowledge about the personal circumstances of the woman concerned, which is difficult to prove. You have made that point. Short of full intention, there is also recklessness, where you were reckless as to the

Column number: 83

circumstances of the woman. Short of recklessness, there is negligence, where a reasonable person would have believed that the woman in question was being controlled. At the other end of the scale, you have the present offence, which is strict liability. I say to you as legislators that all those options of intent are always available to you when creating a new criminal offence.

---

Prepared 30 January 2009