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Session 2008 - 09 Publications on the internet General Committee Debates Policing and Crime Bill |
Policing and Crime Bill |
The Committee consisted of the following Members:Chris
Shaw, Andrew Kennon, Committee
Clerks † attended the
Committee Public Bill CommitteeThursday 5 February 2009(Afternoon)[Sir Nicholas Winterton in the Chair]Policing and Crime Bill1
pm
The
Chairman: I welcome hon. Members to the afternoon sitting
of the Public Bill Committee on the Policing and Crime Bill. If I look
a little weary before the end of our sitting, that is because, having
left this room at 10.30 am, I was in the Chamber until 12.15
pm and in my office from 12.20 pm until 12.55 pm, when I had to come
back to Committee. I have not had any refreshment, so I am sure that
members of the Committee will make my job
easier.
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Vernon Coaker): On a point of order, Sir
Nicholas. Would you like someone to fetch you a cup of
tea?
The
Chairman: That is a very kind suggestion, but I am
a strict Chairman of the traditional sort and do not permit hot drinks
to be consumed when the Committee is at work. I thank the Minister for
his sympathy and assure him that it is much
appreciated.
Clause 11Police
procedures and
practices Question
proposed, That the clause stand part of the
Bill. Mr.
David Ruffley (Bury St. Edmunds) (Con): It would be
helpful if the Minister could describe what procedures he envisages a
Home Office Minister directing in accordance with the clause. In last
week’s evidence session, I gave a specific, practical example
and asked about a direction that a national suite of crime recording
forms be imposed on chief constables. As the Committee will be aware,
the police have to fill in a large number of forms in respect of any
crime that takes place.
In his
interim report of September 2007, although not so much in his final
report of February 2008, Sir Ronnie Flanagan drew attention
to the concept of the nationalisation of crime forms, something on
which Her Majesty’s Opposition have mused. Can a Minister, under
the power vested in him or her under the clause, direct that chief
constables adopt a standard set of forms across the range of offences?
The various forms associated with the manual of guidance are
customised. For example, MG forms have a slightly different format for
Cheshire constabulary from those used in Suffolk or Hampshire. Not only
am I a veteran with experience of reading written briefs, but I
recently spent a day at Basingstoke police station and a day at Ipswich
police station. I read case files of common assault and domestic
violence, and noted that the set of forms in Hampshire was radically
different from the set of forms in Suffolk for the same crime. We are
about to reach the end of part 1 and will soon be coming to the meat of
part 2, but before we do so, will the Minister give us some examples of
the directions in which a Minister might wish to participate? Would
they include the imposition of a national suite of
forms?
Mr.
Coaker: My direct answer to the hon. Gentleman about
whether the clause could be used to change or standardise forms is yes,
we could do that if we chose to do so. To repeat our discussion this
morning, what we try to do all the time is to move towards a position
in which people did that voluntarily. We would only wish to intervene
as a last resort, and examples would include a whole range of
procedures and processes—police IT systems, service procurement
and other back-office processes. At present, regulations can only be
made for all forces, and they can be made in support of joint
operations. The proposed change allows regulations to be made for
smaller numbers of forces, which will give provide greater flexibility
to what we may or may not require forces to do. I hope that answers the
hon. Gentleman’s
question. Question
put and agreed
to. Clause
11 ordered to stand part of the
Bill. Clause
12 ordered to stand part of the
Bill.
Clause 13Paying
for sexual services of a controlled prostitute: England and
Wales Dr.
Evan Harris (Oxford, West and Abingdon) (LD):
I beg to move amendment 81, in clause 13, page 13,
line 27, leave out ‘for
gain’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 79, in clause 13, page 13, line 29,
after ‘A’, insert
‘intentionally’. Amendment
27, in
clause 13, page 13, line 30, after
‘(B)’, insert
‘, or knows that another person has
made or promised payment for such sexual
services,’. Amendment
28, in
clause 13, page 13, line 31, leave
out paragraph (b) and
insert— ‘(b) any of
B’s activities relating to the provision of those services are
procured by a third person through the use of or threat of the use of
force or coercion or B has been the subject of trafficking
arrangements by a third person which would constitute an offence by
such third person under section 57 (trafficking into the UK
for sexual exploitation), section 58 (trafficking within the UK for
sexual exploitation) or section 59 (trafficking out of the UK for
sexual exploitation) which together shall mean
“controlled” for the purposes of this section,
and (c)
either— (i) A does not
reasonably believe that any of B’s activities relating to the
provision of those services are controlled,
or (ii) A is reckless as to
whether any of B’s activities relating to the provision of those
services are controlled.’.
Amendment 67,
in
clause 13, page 13, line 31, before
‘any’, insert
‘A knows or is reckless as to
whether’. Amendment
82, in
clause 13, page 13, line 32, leave
out ‘for
gain’. Amendment
83, in
clause 13, page 13, line 32, at
end insert ‘, and (c) A knows, or
is reckless as to whether, any of B’s activities relating to the
provision of those services are intentionally controlled by a third
person.’. Amendment
68, in
clause 13, page 13, line 33, leave
out subsection
(2). Amendment
29, in
clause 13, page 13, line 36, leave
out paragraph
(b). Amendment
84, in clause 13, page 13, leave out
lines 36 and 37 and
insert— ‘(b) whether A is
aware of the identity of
C.’. Amendment
30, in
clause 13, page 14, line 1, leave
out subsection
(3). Amendment
85, in clause 13, page 14, leave out
lines 1 and 2 and
insert— ‘(3) An activity is
“controlled” by a third person (C)
if— (a) B participates
in the activity because of the use or threat against B or another
person of one or more
of— (i)
violence, (ii)
blackmail, (iii) unlawful
detention, or (iv) other
reprisal; (b) C intentionally
exercises control over the activity;
and (c) C is aware, or ought to
be aware, of a relevant circumstance in paragraph (a)
above.’. Amendment
80, in clause 13, page 14, leave out
lines 1 to 4 and
insert— ‘(3) An activity of
B is controlled by a third person (C)
if— (a) C’s
behaviour in relation to that activity
involves— (i)
compulsion, coercion, intimidation or force directed against B or any
other person, or (ii) regular
instruction or direction,
or (b) if B reasonably believes
that C’s behaviour includes that described in paragraph
(a). (4) A person guilty of an
offence under this section is
liable— (a) on summary
conviction to imprisonment for a term not exceeding 6 months or a fine
not exceeding the statutory maximum, or
both; (b) on conviction on
indictment to imprisonment for a term not exceeding 3
years.’. Amendment
31, in
clause 14, page 14, line 11, after
‘B’, insert
‘, or knows that another person has
made or promised payment for such sexual
services,’. Amendment
32, in
clause 14, page 14, line 12, leave
out paragraph (b) and
insert— ‘(b) any of
B’s activities relating to the provision of those services are
procured by a third person through the use of or threat of the use of
force or coercion or B has been the subject of trafficking
arrangements by a third person which would constitute an offence by
such third person under section 57 (trafficking into the UK
for sexual exploitation), section 58 (trafficking within the UK for
sexual exploitation) or section 59 (trafficking out of the UK for
sexual exploitation) which together shall mean
“controlled” for the purposes of this section,
and
(c)
either— (i)
A does not reasonably believe that any of B’s activities
relating to the provision of those services are controlled,
or (ii) A is reckless as to
whether any of B’s activities relating to the provision of those
services are
controlled.’. Amendment
33, in
clause 14, page 14, line 17, leave
out paragraph
(b). Amendment
34, in
clause 14, page 14, line 19, leave
out subsection
(3). May
I be as helpful as possible to the Committee? I appreciate that the
clause is an important feature of part 2. I would be inclined to permit
a stand part debate, as long as hon. Members speak specifically to the
selected amendments, rather than going wider and discussing the general
principles of the clause. With that understanding, I can give a
commitment to permit a stand part debate if one is requested. I have
already been advised by the hon. Member for Oxford, West and Abingdon
that he would like to discuss the principles in a stand part debate,
which is a rational and constructive way of discussing this important
clause.
Dr.
Harris: It is a pleasure to be more actively engaged in
scrutiny of the Bill. I am delighted that the Committee has made such
good progress, and I hope not to stand in the way of progress this
afternoon. There
are clearly disagreements about the provisions, but we can all agree
that the intention behind the Government’s proposals is a good
one. However, there are many issues about the impact, effectiveness and
unwanted side effects of the provisions, as well as the evidence and
consultation behind them. Those are matters for a stand part debate
and, given that you will look kindly on a request for one, Sir
Nicholas, I intend not to raise questions in this part of the debate
about the general approach of a clause 13 offence seeking to tackle
demand, or about the impact, effectiveness and side effects of the
clause, as well as about consultation and the evidence base. We can
talk about the large number of amendments that seek to probe the
intentions behind the clause or, in some cases, to improve it. I
understand that the Minister and the hon. Member for Bury St. Edmunds
agree with that divide, which will hopefully enable us to have a more
constructive first debate, followed by one in which there is clear
division on the second point. I shall only raise general points now if
they are strictly necessary for the discussion of the
amendments. The
amendments fall broadly into three groups. Although there is large
number of them, they overlap. Rather than go through the amendments in
my name and that of my hon. Friend the Member for Chesterfield in
order, I thought I would discuss them in groupings. I am more than
happy to accept interventions when I describe the impact of the
amendments, if hon. Members think that I have got it wrong or missed
something. First, the amendments are broadly on the question of strict
liability—that is, whether there is intention or not. Secondly,
the definition of “controlled for gain”, which
constitutes part of the offence, and is probably the most important
issue, although they are all important. It is the issue on which there
may be some common ground. Following the evidence session, we
understand that the Government may be prepared to look at whether there
are ways of making absolutely clear what we are talking
about.
Included in
this group is a series of amendments that tackle miscellaneous issues,
such as what the penalty should be, particularly if the offence is not
a strict liability one; whether the offence is committed by the person
who pays or by the person who uses the paid-for sexual services; and
issues related to the geographical scope and jurisdiction of the
offence. I accept that not all the amendments in my name are
perfect—I speak only for myself—or legislation-ready.
They are probing amendments, as this is the first of many stages in
which this part of the Bill will come under serious scrutiny. May I say
at the outset that regardless of how dismissive the Government are of
the amendments, they will not provoke me into seeking to divide the
Committee. I hope that that is helpful, because we are seeking to
establish the intention behind the provisions.
As I say, I
recognise that the intention behind the clause is honourable, as it
claims to deal with the question of prostitution involving trafficked
women and coerced women, forced prostitution, and exploitative
prostitution. There is no difference, I think, between any of the
parties represented in Committee about how much we want to abolish such
forms of prostitution and get rid of them. They are a breach of human
rights—I serve on the Joint Committee on Human Rights—and
it is very clear that we should have little tolerance of any coercion,
where there is no willingness on the part of the prostitute. Part of
the argument we can have on clause stand part is whether an offence
like this effectively deals with that problem. We will touch on that
when we discuss strict liability. I hope that that is understood and
that we are not in the business of debating whether there is a
commitment on anyone’s part to deal with, get rid of and punish
those responsible for forced prostitution in all its forms.
Turning to
the amendments dealing with strict liability, which include amendments
67 and 83 in my name, and amendment 29 in the name of the hon. Member
for Bury St. Edmunds. These amendments try to argue with the point
raised in subsection (2 ) of proposed new section 53A, which states
that it is irrelevant
“whether A is,
or ought to be, aware that any of B’s activities are controlled
for
gain.” Amendment
29 seeks to remove those
words. Amendment
67 contains the words:
“A
knows or is reckless as to whether”.
I accept that the
amendment might read better—and this is why I do not think that
it is perfect—if it contained the words, “known or ought
to have known”. That is probably a better way, in this sort of
legislation, of considering the question of whether we should have
something that is either strictly intentional and includes a degree of
recklessness, or is an issue of strict
liability. In
her evidence, Shami Chakrabarti from Liberty helpfully set out the
hierarchy of intention down to strict liability. Essentially—I
am not quoting her directly—at the top end, it was a strict
intentional offence. Coming down the scale, it was an intentional
offence including a situation in which the perpetuator blinds
themselves to the consequences of their action. Further down, there are
forms of subjective recklessness: we are not doing a reasonableness
test, so it is harder to commit the offence. In a case of subjective
recklessness, someone does not
think rationally about the consequences of what they are going to
do—for example, if they throw a stone over a wall, knowing that
there is a greenhouse on the other side, they do not intend to break
the glass, but just do not consider the consequence of what they are
going to do.
1.15
pm In
cases of objective recklessness, which is similar to a form of
negligence, a reasonable person would have foreseen the action. Further
down the line, there is strict liability. The amendments are aimed at
getting rid of strict liability, because there are real problems with
it. First—and we heard from lawyers who gave evidence to
us—it is wrong in principle to have strict liability offences
outside the narrow area of regulatory offences, in which regulatory
bodies say that if these are the facts, regardless of whether somebody
intended to commit an offence, an offence has been committed. In
principle, that is an inappropriate measure for matters to do with
sexual offences or personal matters of this
nature. There
were attempts to make gross indecency—then a homosexual
offence— and age-of-consent offences offences of strict
liability. In even more conservative times than those we live in today,
there were strong objections to there being strict liability offences
in those situations because of the danger of someone being misled or
blackmailed. Those two go together, of course, and I do not think the
question of blackmail has been brought up in connection with the
clause. It is quite possible for someone who is prepared to be exposed
as someone who uses the services of a prostitute—and therefore
not blackmailable in that sense—to be blackmailable on the basis
that a third party later claims that they committed an offence, even
though they were led to believe as part of the entrapment that they had
definitely not done so, and they took care to establish that they were
not committing that offence. It would help them if they could be
confident that they had any kind of defence against those facts. Under
the provision as drafted by the Government, there is no such defence,
and therefore there exposure to blackmail is possible. Blackmail is an
offence in itself, regardless of whether people think that those
individuals deserve to be blackmailed. Blackmail is not to be
encouraged or assisted by legislation, but the chances of blackmail may
increase under the
Bill. The
Bill does not allow for a penalty to be imposed that matches the
offence. The position with strict liability offences is that it is
impossible to impose a custodial sentence, as I understand it, because
of human rights issues. There must be some form of fairness in the
trial and possible defences, before someone can be locked up for strict
liability offences. That means that the Bill will capture—and
perhaps it is designed to capture—a man who knowingly have sex
with a woman who has been forced into prostitution, and knowingly has
sex with a woman who is not therefore giving consent to that act, as
coercion completely vitiates consent. That is rape, and even if people
do not feel that rape could easily be proven, it is certainly a serious
matter if someone knowingly has sex with someone against their will
because they have been coerced or intimidated. However, to punish that
with a maximum fine of £1,000 does not fit the purpose. If one
could have an offence that was intentional, or even objective
recklessness—that is the
provision that I am offering the Minister—one could have
custodial sentences to match the offence. One would not be dealing with
people who were misled or made a simple mistake or had no good reason
to believe that there was coercion and that the consent was not
valid. That
brings me on to another reason why strict liability offences are not
appropriate in this area. They do not achieve what the Government would
otherwise achieve by having a more directed, restricted offence. If the
Government accept that prostitution is with us, and they are not
criminalising all prostitution—all the buying and all the
selling related to prostitution—it must be a public policy aim
to direct as much demand as possible, and I will come onto enforcement
in a moment, into the “acceptable” end of the
prostitution marketplace, where there is no coercion, sexual
enslavement, intimidation or exploitation by third parties such as
pimps gaining from it. In those conditions, women who are engaged in
prostitution receive no benefit from it, but are essentially forced by
circumstances to do something for which they are not getting a
return.
We do not
have to get into a debate about whether all prostitution is always
exploitative—I use that term in the sense that I have just
described—and how to make a distinction between that and the
type of prostitution where the woman is in charge of her arrangements,
is making a return, has a choice about which clients she accepts, what
she performs and the price she charges. There is clearly a distinction.
If the Government intend—as I believe they should—to push
the demand, such as it is, into that area and therefore reduce demand
in the area that we all find unacceptable, it would be wise for the
punter’s offence to be committed in the circumstance in which we
want to diminish the market, and not the other. That is only logical.
The Government will be frustrated in what they are seeking to do, and
they have blinded themselves to that eventuality by not including such
provision. My
proposals measure would also allow our precious enforcement resources
to be directed towards the unacceptable, outrageous offences. I was
going say the “mischief”—a term we use in
law—but it does not describe the abominable nature of the
offences. If there is such an offence—we are debating amendments
in relation it, so it is clear we can envisage circumstances in which
there will be one—we would like the police to chase after men
who are going to end of the market where prostitutes are exploited as I
have described and are forced, intimidated or coerced. I would be
grateful if the Minister responded to the points of principle I have
raised about the drawbacks of a strict liability offence.
As I have
said, my amendment deals with recklessness and I am happy for that to
be understood as “ought to have known”, which is common
in other areas. That is pretty wide—it goes wider than simply
strict intention—and would require men who use the services of
prostitutes to be clear, and seek to be clear, that there is no
intimidation, coercion or control for gain, particularly if they are
going back to the same women. We will have a debate later about how we
define that. If such men fail to take straightforward steps or find
themselves giving money to a man rather than to the woman herself or if
there is any sign that the woman in unwilling, the offence might have
been committed.
The
measure gives a man who is charged a defence, which is right according
to the rule of law, but it also enables the penalty to be much more
serious. What I have proposed in my formulation in amendment 80, as a
consequence of its no longer being strict liability, is that the
offence is triable on indictment, with a maximum penalty of
£5,000 if it is heard in the magistrates court, and that it
should have a term of imprisonment “not exceeding 3
years.” If the Minister were to say, “Well, if
we’re going to have a strict intention offence, it should be
seven years as some of these offences are,” I am happy to
consider that. The point is that that would be a far greater deterrent
to men, and therefore a far greater restraint on this evil trade, than
that currently in place. The man would be genuinely deterred and the
police could enforce the legislation in a directed way in
these
areas. Dr.
Roberta Blackman-Woods (City of Durham) (Lab): The hon.
Gentleman is making an interesting argument. Will he reflect on the
fact that the Bill tries to shift the responsibility for using the
services of a prostitute who has been forced into prostitution, for
which there might be a range of reasons, from the prostitute to the man
who purchases her services? It tries to do that in a way that is not
overly complex, but what he is arguing for would introduce an area of
complexity in relation to what is and is not
“reckless”.
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