Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:

“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.

Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.

That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow,

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who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.

Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.

The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.

Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.

That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question

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is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.

It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.

We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.

5.30 pm

The noble Baroness, Lady Hamwee, was concerned that the emphasis on the new fact was a challenge to the principle of the presumption of innocence. The noble Lord, Lord Faulks, said that that was one of the things that had worried him, but that he had been persuaded by the arguments that it was not. Again, I

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will not try to analyse and dissect this, but I think that those on all sides who are interested in getting this right would do well to study the intervention of the noble and learned Lord, Lord Hope. He acknowledged that there is confusion, that it is important to get the right standard of proof and that the Government were probably right to try to offer the certainty of statute but, in a carefully balanced judgment, he found that the effort of the noble Lord, Lord Beecham, was too loose and that the Government’s effort would not meet the non-disclosure test, as he illustrated by reference to the tragic case of Sally Clark.

This is a debate worthy of this House and it is our responsibility to try to get this right. There is no sleight of hand or hidden agenda; this is an attempt to get clarity into the law without sacrificing the fundamental principles that have been alluded to. I will put on record the Government’s explanation of this clause as it now stands. I hope that the House will listen to it and test it against the interventions that have been made, as it is obvious that we will be returning to this in some form on Report.

Clause 151 provides, for the first time, a statutory definition of what constitutes a “miscarriage of justice” for the purpose of determining eligibility for compensation under Section 133 of the Criminal Justice Act 1988. This definition will mean that compensation is paid only where the new fact that led to the quashing of the applicant’s conviction shows beyond reasonable doubt that they were innocent of the crime of which they were convicted.

At Second Reading, several noble Lords spoke on this issue. We heard concerns about the relationship of this provision to the presumption of innocence, which have been repeated today. The Government do not believe that the provision conflicts with, or in any way undermines, the presumption of innocence. The presumption of innocence is a fundamental constitutional right, enshrined in the European Convention on Human Rights, and one that we fully support. Once a person’s conviction has been quashed on the basis that it was unsafe, he or she is once more presumed innocent. That is only right. However, as the European Court of Human Rights recognised in the Allen judgment, and in the subsequent judgment of KF, the fact that someone is once more presumed innocent does not automatically mean that they suffered a miscarriage of justice. In the Government’s view, a miscarriage of justice will have taken place only when someone should not have been convicted—not just because something went wrong with the trial process or with the investigation, either of which could render a conviction unsafe, but because there was a fact, unknown at the time of their conviction, that clearly demonstrates that they did not commit the crime.

We agree that people should not have to prove their innocence in order to qualify for compensation. We also agree that to require this would be equivalent to reversing the burden of proof. That is why we are not requiring it. We do not, and do not plan to, require applicants for compensation to prove anything. We do not wish them to provide us with new evidence relating to their case. We look only at the new fact that led the Court of Appeal to quash their conviction and at the impact of that new fact. If the new fact shows that

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they were innocent—for example, that they were somewhere else when the offence was committed—then they have been the victim of a miscarriage of justice and should, and will, be compensated.

In our view, Article 14(6) of the International Covenant on Civil and Political Rights, which we have implemented through Section 133 of the Criminal Justice Act 1988, obliges us to pay compensation for a “miscarriage of justice” only in these circumstances. We do not believe that it is necessary to pay compensation more broadly than this. Compensating everyone whose conviction has been quashed would be tantamount to saying that everyone who is acquitted at trial has suffered a miscarriage of justice. That is clearly not the case.

For many years the courts have regularly tussled with how a miscarriage of justice should be defined. Before 2011, it was defined as a case where the person whose conviction was overturned was shown to have been innocent. As the then Lord Chief Justice, the noble and learned Lord, Lord Judge, put it in his dissenting judgment in the Supreme Court case of Adams,

“the operation of the compensation scheme under section 133 is confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent. In my judgment nothing less will do, and no alternative or half-way house or compromise solution consistent with this clear statutory provision is available”.

The Government agree with him.

The noble Lord, Lord Pannick, referred to the recent letter from the Constitution Committee to my noble friend Lord Taylor. In that letter, the Constitution Committee questioned whether it was appropriate for Parliament to use its legislative supremacy to overrule a decision of the Supreme Court. I hope that noble Lords will have seen the response from my noble friend to the noble Baroness, Lady Jay. In short, the Government argue that it is the proper role of the courts to interpret the law made by Parliament. Where this law is not clear, or leaves gaps, as Section 133 of the Criminal Justice Act 1988 does at the moment, it is entirely appropriate for the courts to fill those gaps with their interpretation. However, where the courts cannot reach a settled view on what a statute is meant to achieve, it is properly for Parliament to address those gaps or ambiguities. That is what Clause 151 will achieve.

I cannot say the same for the amendment tabled by the noble Lord, Lord Beecham, which seeks to maintain the current definition of a “miscarriage of justice”. There are two problems with this definition, which derives from the Divisional Court’s recent judgment in Ali and others, where the court sought to clarify the Supreme Court’s definition in its judgment in Adams. First, unlike Clause 151, the Ali definition requires the applicant to demonstrate that they have suffered a miscarriage of justice; secondly, it requires an assessment of what a jury,

“properly directed as to the law”,

would decide. This is clearly ambiguous and arguable in every case. We do not believe that this is satisfactory. It is essential that applicants for compensation have clarity and are able to understand the test that applies. That is not the case now—as is demonstrated by the

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many unsuccessful applications for judicial review when compensation is refused—and it would not be the case if we kept the current test and gave it a statutory basis.

In contrast to the noble Lord, Lord Beecham, the noble Baroness, Lady Kennedy of The Shaws, other noble Lords and the Joint Committee on Human Rights have argued for the removal of Clause 151 from the Bill. The effect of this would be to leave the definition of a miscarriage of justice to the courts. The lack of statutory definition has left applicants struggling with case law, which, as well as often appearing ambiguous and confusing, changes unpredictably, automatically moving the goalposts for existing applicants.

The Government believe that creating a clear and comprehensible statutory definition will make it easier for potential applicants to predict their chance of success and to understand the Secretary of State’s decision on their case. This should end the succession of unmeritorious attempts at judicial review, which create uncertainty for applicants and incur significant costs for them and the taxpayer. The purpose of Clause 151 is to make the definition of a miscarriage of justice more consistent, clearer and easier for the public and potential applicants to understand. We believe that it is fairer than using an obscure and confusing definition or continuing to work with a definition subject to unpredictable change. Finally, I remind the House that the tests that we are now enshrining in legislation operated successfully between 2008 and 2011.

Clearly, as I said, we are going to return to this matter. What I have just stated is the considered government reasoning for bringing forward Clause 151 with all the legal advice at the Government’s disposal, but I am also extremely grateful to noble Lords—as I often say about the team that I have in the Liberal Democrats who occasionally advise me on these things, if we had to pay them, we could not afford them. We have had a range of thought-provoking interventions, which I will take back. I am encouraged that those interventions do not, for me, dismantle the case for Clause 151. In fact, I think that a balance of reading or a balance of listening gives me more confidence. I think, however, it would do us all well, as the noble Lord, Lord Beecham, advised at the beginning, to listen carefully. I recommend that we read carefully, and we will return to this matter on Report.

Lord Beecham: The Minister has given an interesting and full reply to what has been a very interesting and compelling debate, demonstrating yet again that consideration of these matters goes further and deeper in your Lordships’ House than it does in another place, where, frankly, this issue was dealt with in fairly peremptory fashion.

I am grateful to all Members of your Lordships’ House, particularly the noble and learned Lords, for their contribution to the debate, and I will certainly be taking my own advice and that of the Minister and reading very carefully and more than once the contributions that have been made in this very difficult area, both philosophically and in terms of jurisprudence.

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It is interesting that the Minister rejects the test that is advanced in the amendment as not acceptable and again repeats the mantra that applicants are not required to prove their innocence because, as he implies, the amendment suggests that everybody whose conviction is quashed should be compensated. That is not what the amendment is intended to achieve and not what it says. The noble and learned Lord, Lord Hope, identified one category where purely procedural defects of a significant nature—for example, somebody being wrongly brought over to this country for trial— was sufficient to make a conviction vulnerable to quashing, and indeed it was quashed. That did not give rise to the sort of concerns that the amendment seeks to address.

5.45 pm

The noble and learned Lord, Lord Brown, with whose support I was very content when we discussed aspects of the secret courts Bill, alas differs from me and others with his approach to these matters. Of course, I very much respect his appearance and wisdom. It is interesting that, towards the end of his speech, he posited two categories about which questions might be asked. He asked how large the category of innocent people not getting compensation would be, and how large the category of guilty people getting compensation would be. That is a factor, but it is not the crucial factor that we ought to weigh as we determine whether to make what is, in my submission and that of other noble Lords, a significant change in how guilt and innocence are treated, at any rate for the purposes of compensation. The noble and learned Lord, Lord Hope, took the view—others have expressed it—that the Ali test does not go far enough and somehow distorts the decision in the Adams case. I want to look very carefully again at both those judgments and to consider whether my amendment is fit for purpose. It might need reconsideration.

The noble and learned Lord referred to the judgment of the noble and learned Lord, Lord Phillips, in that case and mentioned the noble and learned Baroness, Lady Hale, and her judgment. The noble and learned Lord, Lord Phillips, advanced in paragraph 55 of his judgment the proposition of a more robust test of a miscarriage of justice than that which had been formulated by Lord Justice Dyson. His formulation was this:

“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied”.

That is consistent with the terms of the amendment. It seems to make very much the same point. The noble and learned Lord, Lord Hope, disagrees about that and I want to consider very carefully that distinction. The noble and learned Lord, Lord Phillips, went on to say:

“This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.

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The question is whether the Government’s position would facilitate that or not. That is where there is a significant measure of doubt.

I was also slightly puzzled by the noble and learned Lord’s quotation from the judgment of the noble and learned Baroness, Lady Hale. I have already quoted the noble and learned Baroness. Referring to the text of her judgment explicitly, she referred to,

“the ‘golden thread’ which is always to be seen ‘throughout the web of the English criminal law’”—

that is, proof of guilt beyond a reasonable doubt. She went on to say:

“Only then is the state entitled to punish him. Otherwise he is not guilty, irrespective of whether he is in fact innocent. If it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now”.

That seems to be more consistent with the amendment that I have tabled and to which I speak than the proposition contained in Clause 151.

There are clearly matters that I and many of us will have to revisit before we get to Report. The Government’s proposals in Clause 151 are not consistent with the thrust of our traditional common law policy in these matters and with the judgment in Adams. We wish to see that what had been understood to be the position, and which Adams stressed, is reinstated. I hope that in exploring these matters further we might reach a point where doubts about the amendment and its possible rephrasing might help us achieve that objective.

These are serious matters. I remind your Lordships that we are not talking about large numbers of cases and large numbers of guilty people being compensated, or about large numbers of any category of people being compensated. Not that many cases achieve compensation. The point is the direction of travel in which we address these issues, and the impact that that has on our traditions and system of justice.

At this stage I will not seek to test the opinion of the House. I look forward to another interesting and hopefully productive debate when we get to the Report stage of the Bill. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Clause 151 agreed.

Clause 152: Low-value shoplifting

Amendment 16

Moved by Lord Beecham

16: Clause 152, page 122, line 11, leave out “£200” and insert “£100”

Lord Beecham: My Lords, happily this is a relatively short matter and appropriately I shall be speaking to it.

The issue here is a change to the way in which shoplifting is to be dealt with. The thrust of the Government’s proposals is to make a summary-only

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offence of shop theft below £200. That would facilitate matters being disposed of without trial following a written guilty plea, with a fine then usually being imposed on an absent defendant. It might seem somewhat illogical for the Government to preserve the right to elect trial for somebody even on a charge for such a moderate amount, but they are absolutely right to do this.

The problem identified by members of the retail trade and the Magistrates’ Association in particular, and perhaps also by others, is that under the present system an on-the-spot fine can be given for a low-value shop theft if the penalty, which I believe at the moment is £80, is not paid within 21 days. Half of them, incidentally, are not. It then becomes a higher fine of £120 and the court system manages the collection. That is a reasonable way to approach first-time offenders. It should not, however, continue to be available for repeat offences. The penalty notice for disorder—we are into alphabetical descriptions again: the PND—is not an admission of guilt.

The police often caution offenders for shop theft—that does require an admission of guilt. It could be the next stage after a previous PND. A summons to court may follow after two previous incidences of shop theft. If the Government’s measures turn this into a kind of postal process only, there is the danger that repeat offenders will accumulate a succession of fines without really being stopped or deterred at all. The view of the Magistrates’ Association is that a great deal of shop theft goes undetected as it is, and some offenders detected under this process for the third time will have committed nearer to 30 offences. This is obviously not good for the trade. It is also probably not good for the offenders. Many of them have huge problems. They may be afflicted by homelessness and a consequent inability to claim benefits, or they may have problems of addiction to drugs or alcohol. Of course, those aspects will not be picked up on at all under this process. There is therefore a double risk, both to the trader and, indeed, very often to the offenders.

The purpose of the amendment is therefore to narrow the scope within which these new procedures can apply. The figure is one which simply triggers the debate. In the Commons, my honourable friend Mr David Hansen who moved the amendment did so with two figures, £100 and £40. It is irrelevant which figure one looks at, the question is whether the system as proposed will produce more problems rather than fewer for both traders and potentially for offenders, and whether—at the very least—a lower figure might limit that. I hope that the Minister will consider that area. I am not expecting a complete response tonight, but perhaps by the time we come to Report the Government could have had another look at this issue with a view to seeing whether some of these fears which have been expressed by those with an interest in the matter can be properly addressed. I beg to move.

Lord Borrie (Lab): My Lords, I support the amendment —I suppose because it comes from my Front Bench. However, I do not like the provision in the Bill at all. Shoplifting has been with us, as it were, for a long time. Correct me if I am wrong, but it is unprecedented

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for shoplifting to be singled out as a form of theft that should receive special attention. What is the gain to the public of that?

Shoplifting is of course prosecuted under the Theft Act 1968. When I was a young barrister prosecuting young shoplifters up and down Oxford Street, the notion was that very few people did other than plead guilty. They wanted to get it out of the way. They certainly did not want to go for trial and have to wait until a jury trial could be arranged. Therefore, they invariably preferred the summary trial. I would be surprised if that were any different today.

I see little point in this clause if it introduces for the first time special provision relating to one particular kind of theft. Why this kind of theft? Why not theft from one’s employer, or from one’s friends and neighbours? Why shoplifting, in particular? From my experience of years ago, I am afraid that the general public seem to think that shoplifting is not nearly as serious as real theft. It is something that most people engage in when they are young, or otherwise. However, to label this aspect “shoplifting” rather than theft in general, as the Government are doing, is perhaps to lend credence to the notion that shoplifting is not so important at all.

I suggest that the very least which could be done would be to adopt the amendment of my noble friend Lord Beecham. Really, however, the Government ought to withdraw the clause. Is the Bill not big enough, covering enough subjects, as it is, without dragging in something which has no relevance to any other part of the Bill?

6 pm

Lord McNally: It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.

A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.

The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried

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nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.

It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.

Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.

Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.

I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.

Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had

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previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.

The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.

I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.

Lord Beecham: I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

Clause 152 agreed.

Clause 153 agreed.

Amendment 18

Moved by Lord Touhig

18: After Clause 153, insert the following new Clause—

“Protection arrangements for children and dependants

(1) The Criminal Justice Act 2003 is amended as follows.

(2) After section 174 (duty to give reasons for, and explain effect of, sentence) there is inserted—

“174A Duty to ask about children etc left behind

(1) Any court passing a custodial sentence on an offender who was on bail when awaiting sentence must ask what the arrangements are for the care of any children of the offender or any vulnerable adult who is dependent on the offender while the offender is in custody.

(2) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.

(3) Any person or body having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (1) refers.”

(3) The Bail Act 1976 is amended as follows.

(4) In section 5 (supplementary provisions about decisions on bail), after subsection (5), there is inserted—

“(5A) Where a court withholds bail in criminal proceedings from a person to whom section 4 of this Act applies, the court must ask what the arrangements are for the care of any children of the defendant or any vulnerable adult who is dependent on the defendant while the defendant is on remand in custody.

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(5B) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.

(5C) Any person having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (5A) refers.”

(5) This section shall come into force two months after enactment.”

Lord Touhig (Lab): My Lords, this amendment stands in my name and that of the noble Lord, Lord Ramsbotham, who has asked me to apologise for his absence as he is en route to Kenya as we speak.

This probing amendment would introduce a very straightforward duty on courts to inquire whether individuals who are refused bail or sentenced to prison have caring responsibilities for any children or vulnerable adults and, if they do, to make a referral to the appropriate local authority if arrangements are not in place for their immediate safety and well-being.

The noble Lord, Lord Ramsbotham, if he were here, would have sought to discover more about the Government’s plans to transform the probation service. He would have reminded the House that in pre-Grayling days family details would have been discovered by the probation service, which would have included this information in pre-sentence reports. I know he would have worried that a privatised probation service would not have the time to complete full reports, and I believe that he would have been right to do so.

Our proposed change in the amendment would not have any bearing on decisions about the length of sentence or whether bail is granted, nor would it place any onerous burden on courts to establish care provisions themselves. It is simply about identifying young, old or disabled people who have been left in a precarious situation as a result of their primary carer being imprisoned, so that the appropriate steps may be taken. Regrettably, far too many are let down by the current system.

At Second Reading, I spoke about a seven year-old boy who was neglected and, ultimately, left alone by friends after his mother was sentenced. Then there was the case of the young lady who was unaware of her daughter’s whereabouts and only discovered that she had been hospitalised after a support worker contacted four different councils. Finally, a 19 year-old boy was left caring for five siblings when his mother was denied bail. These give an indication of the kind of cases that organisations supporting this amendment—members of the Families Left Behind campaign—are regularly faced with. Charities such as the Prison Advice and Care Trust, Barnardo’s, the NSPCC and Caritas Social Action Network have all highlighted how vulnerable people are unnecessarily put at risk, sometimes overlooked for hours or even days. In such cases, serious risks often only become apparent when the prisoner talks to a support worker or chaplain about their family.

People facing trial or bail hearings are rightly encouraged to make arrangements for their dependants before entering the courtroom, and many do just that. Where the court is assured that suitable support is in place, this amendment will not necessitate any further action whatever. However, where those arrangements have not been made, perhaps because the defendant

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was confident of being released or was simply overwhelmed by the judicial process, it offers a vital opportunity for early intervention to prevent people from coming to harm. The importance of avoiding any break in care for children or vulnerable adults is well established. The Government themselves advise that children under 16 should not be left alone overnight; children under 12 should not be left alone for long periods of time; and babies or toddlers should never be left alone at all. The advice continues and warns that parents may be prosecuted if any child is left,

“in a manner likely to cause him unnecessary suffering or injury to health”.

Yet this is precisely the situation some children face when a parent is remanded in custody or sentenced to prison. The longer it takes for the appropriate authority to intervene, the greater the risk becomes.

Likewise, we are only too aware of the danger posed to older or disabled adults by depriving them of necessary support, even for a short time. We have all been appalled by cases in recent years where just one or two missed homecare visits have led to people being left in darkness, unable to use the toilet or even without vital medication. In more extreme situations, people have experienced serious harm, or even lost their lives, after falling through gaps in the system and finding themselves without support. Many steps are being taken to ensure that such tragedies are never repeated and that homecare schedules are properly adhered to. Yet equally robust provision is lacking in situations where a person’s primary carer is a relative or friend and they have been given a custodial sentence.

It is worth revisiting the number of people at risk of being left in these difficult circumstances. Some 200,000 children in England and Wales experience the imprisonment of a parent every year, more than twice the total number of children in the care system. While statistics for adults who experience the imprisonment of their carer are not centrally collected, this figure is also likely to be significant, given that the prison population currently stands at over 80,000 and approximately one in eight of Britain’s adults is a recognised carer. A simple process whereby courts make relevant inquiries and notifications regarding dependants, at the point when a sentence is passed or bail is refused, will go some considerable way to addressing current shortcomings, without creating significant pressure on either time or resources. The proposal also stands to reduce the need for the more intensive and costly intervention often required further down the line if people are left without support.

I therefore hope that we can take this opportunity to adopt this sensible and constructive measure. It is a small change in procedure but it will make a significant difference for a child who finds that there is no one to collect them from school because their mother has been refused bail, or for the elderly parent who finds that there is no one to help prepare their dinner because their son has been handed a custodial sentence. When anyone is sent to prison, the families and dependants who are left behind will invariably feel the consequences. It is perhaps impossible to completely mitigate the impact of losing a parent or carer in this way but we can and must make improvements to ensure that those

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innocent people who, through no fault of their own, are placed in positions of extreme vulnerability do not go unnoticed.

We are all grateful to the noble Lord, Lord Taylor of Holbeach, who took a great deal of trouble to write on a number of matters that came up at Second Reading but this was one issue that slipped through the net and was not referred to in his letter—just like many of the people who I talked about; they, too, slip through the net. Perhaps the Minister when he replies can give us some hope that our pleas have not fallen on deaf ears. I beg to move.

6.15 pm

Lord Hylton: My Lords, I am happy to support the amendment. I mentioned at Second Reading that it was through my long association with the Northern Ireland Association for the Care and Resettlement of Offenders that I came to be sensitive to the issues behind the amendment. It was NIACRO, I think, that first coined the phrase, “the silent sentence”, which described in those few words the impact on families of the imprisonment of a parent or person caring for children.

It is highly significant that 12 or 13 NGOs or charities have come together to launch a campaign called the Families Left Behind. They point out:

“Children of prisoners are disproportionately represented amongst young offenders, the care population, children in poverty and children with mental health needs. Parental imprisonment is correlated with a range of other family problems including domestic violence and drug and alcohol misuse”.

It is significant that two-thirds of boys whose fathers have been in prison go on to offend. We should note that 66% of women currently in prison have children.

I shall give a little history of what has happened in the past two years. In 2011, Action for Prisoners’ Families together with Her Majesty’s Courts and Tribunals Service—a significant combined action by a voluntary group and a statutory body—published a range of resources aimed at promoting good practice in relation to children or dependent adults whose primary carers had been sent to prison. These resources included new guidance asking magistrates to check that there are no immediate welfare needs concerning children or dependent adults. However, the sad fact is that many courts have not followed this guidance and therefore seem still to be unaware of the issues concerning the welfare of children and vulnerable dependants when the carer is placed in custody.

The amendment is quite right to place the responsibility clearly on the court making the sentence. This will be, I am sure, a matter to which we shall return on Report. Meanwhile, I look forward to the Government’s response.

Lord Judd (Lab): My Lords, I strongly support the amendment. I remember, on a visit to Holloway, being tackled very forcefully by a prison officer, who said how outraged she was, fulfilling her duties, sometimes quite late at night, of receiving and processing people who were being taken in to that prison after court proceedings, that only at that stage did the staff discover that there was somebody vulnerable at home. It is outrageous in any decent society that there is any

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possibility of something like this happening. I think sometimes that we just do not think through the consequences. Apart from the possible inhumane results, not that infrequently a vulnerable person in that situation will have been in the care of a woman or a man—it is not exclusively a matter for women—in a home that has had more of its share of disrupting influences on that child. For the child suddenly to be left in this predicament only compounds the insecurity that that child has faced in life and, indeed, could well accentuate a tendency to anti-social behaviour at a later stage.

If we are trying to reduce crime and encourage the young to forgo the possibility of delinquent behaviour, a demonstrable sense of care by society is very important. From that standpoint, it seems to me that this amendment is crucial. I will be very sad if the Minister feels unable to accept it, because I am quite certain that it must be pursued on Report. For a prison officer, who was deeply concerned, to raise the matter with me brought the point home to me all the more forcefully. It is quite shocking that this sort of situation can occur. The sooner we eliminate that possibility, the better.

Baroness Hamwee (LD): My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.


Lord McNally: My Lords—

Lord Beecham: My Lords—

Lord McNally: I know that the noble Lord is under pressure.

Lord Beecham: I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.

Lord McNally: I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.

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This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.

The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.

I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.

I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.

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6.30 pm

One particular concern is the duty this amendment places on a criminal court, dealing with serious crime, to take on what is essentially a non-criminal function. The criminal court should take account of a number of relevant factors, including any responsibility the offender has for dependants, but it cannot be the responsibility of our criminal courts to address all the issues that flow from the offender’s conviction and custodial sentence. It is simply not realistic for the criminal courts to step in and manage an offender’s life after they have been convicted. I am also concerned that, under the noble Lord’s amendment, the proposed duty on the court comes at the end of the court process. At that point the offender has already been convicted and has been sentenced to a custodial term. The effect of a custodial term on dependants is a factor which should have been taken into account in considering the sentence to impose, not as an afterthought once the sentence has been decided on. In deciding on an appropriate sentence the court is required to consider, first and foremost, the seriousness of the offence. It will also consider personal mitigating factors relevant to the offender, which can include the impact of a sentence on dependants.

The impact that caring responsibilities may have on the type or severity of a sentence has been clarified over the years by decisions of the Court of Appeal. In short, it is long established that the courts can, and in certain circumstances must, consider the potential impact of a sentence on dependants and, if they do not where it is relevant, this could give rise to an appeal against sentence. The judge or magistrates, in deciding on sentence, should therefore already know about any dependants and have taken them into account. The pre-sentence report, prepared for the court by the probation service, should set out the background circumstances of the offender, including any family connections or caring responsibilities. I do not believe that our reforms will change that. The legal representative of the offender can raise any such caring responsibilities with the court, often as part of a plea in mitigation.

The Children Act 2004 already requires interagency co-operation to safeguard and promote the well-being of the child. Probation staff working in court or preparing pre-sentence reports already have a responsibility to consider the impact of custody on an offender’s children. If there is a likelihood of custody, children’s services will be alerted to ensure arrangements are in place to safeguard the well-being of children. This brings me to a crucial point. In order for agencies to promote the well-being of children, or for courts to take into account the impact that a custodial sentence would have on dependants, they must know about them. In the case studies provided by PACT, it is striking that the offender has often not disclosed to probation, any other authorities or even to their own legal representative that they have dependants. It is often not until they are in prison that this fact emerges. This amendment would not, however, address that situation. It would not force an offender to disclose to the court that they had dependants; it may well have the opposite effect. Judges or a bench of magistrates can be seen as intimidating authority figures. If they are quizzing a defendant about children in the context

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of calling in social services, that may, in fact, reinforce the offender’s mistaken desire to keep their dependants secret. It is simply impractical for a court to satisfy itself in every case involving custody of the adequacy of arrangements for care of dependants, especially if the offender does not disclose they have dependants. It is also unclear as to what duty the criminal court would have should the care arrangements be unclear, and how, if at all, this should impact on the sentencing or remand decision.

It is for those practical reasons that the Government cannot accept this amendment. However, we believe that the issue should be addressed and we are willing to look at ways to do so. For example, I recognise that often, although not always, offenders who are primary carers are likely to be women. Last month, as I have said, we set out new approaches to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families. Under our Transforming Rehabilitation reforms, all women’s prisons are to become resettlement prisons. This means that female prisoners will serve their sentences as close to home as possible and, most importantly, as close to their children as possible—maintaining vital links that will help them to break the pernicious cycle of reoffending.

It is important that we raise awareness of the importance of identifying the presence of dependants as soon as possible. We also have to convince defendants that ultimately it is misguided to hide the existence of dependants. I will certainly look at the point made by the noble Lord, Lord Hylton, about the inconsistency of courts exercising their responsibility to try to find out these facts. As I have indicated, I pay tribute to the work of PACT along with the senior judiciary to ensure that posters and information are available in courts to bring that message to the attention of defendants, the legal profession and the judiciary. If, as has been suggested, there is a problem, I am happy to discuss it with representatives of PACT, the court services and the senior judiciary to see how we can refresh these efforts to ensure that maximum coverage and publicity is given to the need to disclose these facts as much as possible. I would suggest that that is likely to be far more effective than a statutory provision, which I fear would not have the effect that is intended.

By putting some of the practicalities before the Committee, I hope that the noble Lord, Lord Touhig, will accept that we understand that there are issues. Not all of them lie at the door of the courts or of an uncaring state; they are often to do with the chaotic lives of some of the people who come before our courts. However, if we can hold a meeting with PACT and have further discussions, we will be able to see how we can take this problem forward. With that, I hope that the noble Lord will agree to withdraw his amendment.

Lord Touhig: My Lords, I will be brief because I appreciate that other Members want to carry on with other matters. The noble Baroness, Lady Hamwee, made a good point about whether the courts or the Local Government Association have been consulted. I am not sure, but it is a valuable question. However, I should point out that in a note to me, which I

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mentioned in my opening remarks, the noble Lord, Lord Ramsbotham, did say that currently the probation service would provide family details for a pre-sentence report. Perhaps we are part of the way there.

My noble friend Lord Judd referred to the account of a prison officer who pointed out to him the number of people who are left behind when someone with older people or children to care for is sentenced. The noble Lord, Lord Hylton, made the point that a coalition of charities has come together to help this vulnerable group. However, that coalition has no power to change the law; only we have that power and we should do so. I welcome the remarks made by the Minister and his suggestion of a meeting, but here we have a chance to put in a safety net. I have no crystal ball, but I am as sure as God made little green apples that some way down the line, unless we put in this extra element of support in one way or another, there will be a case where an elderly vulnerable person is left uncared for and dies or a child is left uncared for and dies because of the system. It is not an uncaring system, but it is an oversight that will let people down. With those few remarks, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19

Moved by Lord Pannick

19: After Clause 153, insert the following new Clause—

“Marital coercion

The defence of marital coercion for a wife charged with an offence other than treason or murder is hereby abolished.”

Lord Pannick: My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.

Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same

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household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.

I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.

Lord McNally: My Lords, for the sake of brevity, I hope that on Report I will be able to do just that.

Lord Pannick: I am very much obliged to the Minister. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Clause 154 agreed.

Baroness Anelay of St Johns (Con): My Lords, before I move that the House resumes and, thereafter, adjourns, I would like to inform the House that, by agreement with the usual channels today, our business next Monday has changed. It will be the second day in Committee on the Anti-social Behaviour, Crime and Policing Bill and it will not be the first day on Report of the Financial Services (Banking Reform) Bill.

That change and other agreed changes to our business over the next couple of weeks are reflected in the new edition of Forthcoming Business. I thought that it would be for the convenience of the House, particularly as we are about to go into recess, if I brought forward the publication of Forthcoming Business to today, rather than leaving it until tomorrow, so that the Convenor and the Chief Whips of all groups may send out that information as soon as possible. I am grateful to the noble Lord the Opposition Chief Whip for his co-operation in this matter.

Lord Bassam of Brighton (Lab): My Lords, I thank the noble Baroness the Chief Whip for the Government for the gracious way in which she has dealt with this issue and record my thanks to her and the Government for responding positively and flexibly to our proposals to reorganise business. I hope that the House is happy with that, it having been somewhat unhappy at an earlier stage. This all helps to ensure that the usual channels work as well as possible for all concerned.

House resumed.

House adjourned at 6.44 pm.