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Public Bill Committees

Debated on Thursday 14 December 2023

Criminal Justice Bill (Third sitting)

The Committee consisted of the following Members:

Chairs: Hannah Bardell , Sir Graham Brady , Dame Angela Eagle , Mrs Pauline Latham , † Sir Robert Syms

Costa, Alberto (South Leicestershire) (Con)

† Cunningham, Alex (Stockton North) (Lab)

Dowd, Peter (Bootle) (Lab)

† Drummond, Mrs Flick (Meon Valley) (Con)

† Farris, Laura (Parliamentary Under-Secretary of State for the Home Department)

Firth, Anna (Southend West) (Con)

† Fletcher, Colleen (Coventry North East) (Lab)

† Ford, Vicky (Chelmsford) (Con)

Garnier, Mark (Wyre Forest) (Con)

Harris, Carolyn (Swansea East) (Lab)

† Jones, Andrew (Harrogate and Knaresborough) (Con)

† Mann, Scott (Lord Commissioner of His Majesty's Treasury)

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

Phillips, Jess (Birmingham, Yardley) (Lab)

† Philp, Chris (Minister for Crime, Policing and Fire)

Stephens, Chris (Glasgow South West) (SNP)

Sarah Thatcher, Committee Clerk

† attended the Committee


Nick Smart, Acting President, Police Superintendents’ Association of England and Wales

Councillor Sue Woolley, Conservative Lead Member for the LGA’s Safer and

Stronger Communities Board, Local Government Association

Emily Spurrell, PCC Criminal Justice portfolio lead, Association of Police and Crime Commissioner

David Lloyd, PCC Criminal Justice portfolio lead, Association of Police and Crime Commissioner

Mark Fairhurst, National Chair, POA (the Union)

Public Bill Committee

Thursday 14 December 2023


[Sir Robert Syms in the Chair]

Criminal Justice Bill

Good morning, everybody. We will start with the Opposition for the first five minutes, then go to the Ministers and then open questions up to others. Anybody not on the Front Bench who wants to ask a question, please signify—send up a rocket.

Examination of Witness

Nick Smart gave evidence.

We start with Nick Smart, acting president of the Police Superintendents’ Association of England and Wales. Did you put in written evidence?

Nick Smart: No, I just have some notes to refer to.

Okay. Would you like to introduce yourself?

Nick Smart: Good morning, everybody. I am Nick Smart, acting president of the Police Superintendents’ Association. We represent superintendents and chief superintendents in England and Wales; we have approximately 1,500 members nationally.

Q Thank you for your time and expertise this morning. They are much appreciated.

The nuisance rough sleeping provisions in clauses 51 to 62 are likely to have an impact on police officers and the work that they have to do. Does the association have a view on that, and on its resourcing implications?

Nick Smart: Yes. With the repeal of the Vagrancy Act 1824, the new measures are welcome. The powers give officers the ability to move people on in certain circumstances, be it rough sleeping or begging. As Mr Stephens from the National Police Chiefs’ Council said, this is a wider societal issue, not necessarily just a police matter. We would encourage the use of these powers in line with our community safety partners to address the issues. We would look at this as a positive step for police officers.

Q Do you have concerns that this will be one of those multifactorial societal problems that ends up with an enforcement-type approach, where we ask you to police our way out of what are deeper social challenges?

Nick Smart: A lot of the individuals who end up in this situation are vulnerable; I am sure you have heard evidence of that. Will it address the root causes of rough sleeping and begging? That remains to be seen. We note that with the one-month imprisonment, there is a potential risk of people being arrested subject to notices and then yo-yoing in and out of the criminal justice system, prisons and so on. If they are in prison for a short time, they are not able to access all the help that they may need. Where sleeping and begging also has that harassment or nuisance element, however, that is an appropriate power.

Q Do you have a view on the desirability of the provisions relating to the police, particularly clauses 73 and 74 on ethical policing and appeals to police appeals tribunals? Would you add anything to them?

Nick Smart: On the police appeals tribunals, it makes perfect sense to us as an association that where officers need to be dismissed, or it is believed that officers should be dismissed, chief constables have the right to appeal to the tribunal rather than going through the rather litigious and expensive route of judicial review.

We are supportive of the duty of candour and code of ethics. Nobody in policing wants bad cops within the organisation. We are overtly cognisant of the trust and confidence issues in policing and of the legitimacy that we all—the public—seek and desire. We believe that the College of Policing needs to come up with some clear and unambiguous guidance for all police officers. If you were to ask a PC, at 2 am, what “duty of candour” means, I think they might struggle to answer, but if the College of Policing is clear with that guidance and rolls it out in an unambiguous manner that everybody can understand, which I believe it will, we do not have an issue. We support that 100%.

Q Finally, you may have seen from the evidence we took on Tuesday that there is quite a lot of interest in vetting. I think we came out with more solutions, in different ways, than we had perhaps anticipated. Where do you sit on what is an appropriate vetting regime that is practical and that gives confidence to the public about the people who are protecting us?

Nick Smart: The purpose of vetting is to make sure that the right people get into the organisation. There is certainly a reputational risk in having the wrong officers in the organisation; we have seen the damage it can do to trust and confidence in the police service. I believe that the measures that the College of Policing will instigate for licence and vetting units are a positive step to make sure that they adhere to a certain standard.

Having His Majesty’s inspectorate of constabulary review vetting units as part of its inspections is a sensible way of safeguarding and making sure that they are working effectively. As with any issue, if you want to enhance the vetting it will mean more staff, which will cost more. The current budgets are set, so if you put more people and resources into more robust vetting, which is a sensible idea, something at the other end will have to give, because there is no endless money pit for the police budget.

Yes, we welcome it and we believe that it is the right thing to do. As an observation, an officer is vetted at the time of joining, but you could have repeat vetting at some point during their service, to make sure that they still have the appropriate vetting. Also, when you get promoted to superintendent level, for example, you go to management-level vetting, which is slightly more intrusive. If you are a counter-terrorism officer, you may get some even more enhanced and developed vetting that takes more time and resources. We would welcome more robust vetting, and I think most chief constables would welcome it, but it is a question of resourcing and staffing to make sure that the process is fit for purpose.

Q Can I pick up on the issues around police conduct? Clauses 73 and 74 create both a right and a duty on chief constables: a duty to oversee the duty of candour and the relevant code that will ensure it, and a right to submit an appeal of their own device. Is that consistent with feedback that you have heard from chief constables about how they could better manage their subordinates?

Nick Smart: In terms of the appeals process?

In terms of the two things. Do you think that that is the range of tools that they need in order to better manage?

Nick Smart: In terms of the appeals process, having a JR is really expensive and takes time. If the officer is to be dismissed, a JR prolongs the period unnecessarily. An appeals tribunal should be swifter, so if the officer is dismissed the process is more satisfactory for everybody concerned. We believe that this is an appropriate tool for chief constables.

Q There are some new powers in the Bill. The power relating to the seizure of bladed articles is consistent with powers that already exist, but is an expansion of them; there just needs to be a reasonable belief that the bladed article may be used in the commitment of a further crime. What is your view on that?

Nick Smart: It plugs a gap. Previously, officers who were lawfully on premises could not seize knives that were essentially held there—we all have knives in our house—but there are examples of domestic situations in which a knife could be used to commit a heinous offence. This provision allows us to seize that knife if there are reasonable grounds to believe that a criminal act will be committed. We would support this.

Q In the past, have you heard that officers have had a reasonable suspicion but have found that they lacked the requisite power to act?

Nick Smart: Basically, yes. There are examples of officers who have attended various incidents, perhaps with people with mental health problems, in domestic situations where knives had been lawfully bought but could be used in a criminal act, and the officers have not been able to seize them properly. Again, where there are reasonable grounds to suspect that a criminal act may be committed with a bladed article—a weapon—it is entirely appropriate that we have the power to seize it and stop that from happening.

Q Right next to that in the Bill is clause 19, which relates to the power to enter premises without a warrant. Police can enter without a warrant when there is a reasonable suspicion that stolen goods are on the premises. Can you comment on that?

Nick Smart: I think it is a reasonable belief rather than a suspicion. Giving that power to our officers is welcome. It comes with the caveat that there is a legitimacy angle. Officers not having to obtain warrants to enter premises presents a big trust and confidence issue for the public, and rightly so. That is where the quality of policing comes in with respect to officers’ guidance, understanding and application, and with respect to His Majesty’s inspectorate of constabulary making sure that those powers are used appropriately and that there is accountability.

It plugs a gap. For example, we all have an iPhone, and we all have Find My Friends on it. If somebody has lost a bit of tech and the app can pinpoint an address, that, along with other reasonable lines of inquiry, gives the officer the reasonable belief to enter the premises and recover the property. That seems appropriate.

Q Do you have confidence that the threshold test of reasonable belief would be uniformly applied across police forces?

Nick Smart: Yes, I do. On the scale of reasonable suspicion to reasonable belief, you have to have virtually no doubt that the item is in that property before you enter it. Rather than reasonable suspicion, where you can just have a hunch, there have to be active lines of inquiry based on intelligence to justify a reasonable belief, but if it is there, it is entirely appropriate for an officer to enter and recover a member of the public’s stolen property.

Q Finally, the new package of measures in clauses 65 to 71, which deal with antisocial behaviour, is an expansion of existing powers in the 2014 legislation, such as enabling the police to put in place a public safety protection order. What impact do you think that will have on the police’s ability to respond to antisocial behaviour?

Nick Smart: I think it gives us the flexibility and dynamism we need to address issues that occur, fight crime, deter crime and reassure the public. In my force, West Yorkshire, public spaces protection orders have been used against nuisance vehicles where individuals have been wolf-whistling at females, so they link to the violence against women and girls agenda and they have been used quite successfully. Our power to create PSPOs is entirely appropriate in the circumstances and is very welcome.

Q What about bringing the age limit down to bring in children of 10, up to adulthood?

Nick Smart: Again, it relates to the accountability for everybody’s actions. It is not just older people who commit antisocial behaviour; it is often youth-related and it is linked to families. We welcome the provision allowing social housing providers to remove nuisance tenants, but we understand that they have an obligation to rehouse them, so it is not just about moving them from one place to another and the same behaviour happening. There has to be community safety partnership work to ensure that there is the health, education and social care provision to change their behaviour. Otherwise, you are just displacing the problem from one area to another.

Q I would like to go back to the issue of knife crime, which I am particularly interested in. You mentioned clause 18, but are there any other measures in the Bill that will help to tackle knife crime? There was a recent national police initiative to tackle knife crime. Could you tell us how that went?

Nick Smart: On the powers, possession with intent is a really useful operational tool for officers. It is similar to firearms legislation, in which there is an offence of possession of firearms with intent to endanger life. Having an offence for knives with a similar intent is welcome. We have seen gangs taunting each other with knives on social media, on podcasts and things like that. Possession with intent is a welcome operational tool, used in line with intelligence and obviously monitored with the usual safeguards. Operationally it is very welcome, and if it saves lives we are all for it.

Q Absolutely. And how did the operation go?

Nick Smart: I cannot comment on that, because I am not aware of it. I can get you a written response if you would like me to come back to you.

Q That is fine. You said that the measures in the Bill are welcome. Are there any other measures that you would have liked to see in it that would help to tackle knife crime? I realise that it needs a holistic approach and that you need to work with others, but we can only give you the powers.

Nick Smart: The powers on sale and manufacture are welcome in addressing those who use social media such as Snapchat to sell knives to groups. The prohibited knives in a public place distinction is welcome. We have tried for some time to do that. For example, you have to prove three different elements to prove that something is a zombie knife, but now there is a provision in the Bill. I guess an aggravating factor that might be linked to the sentencing guidance is having that prohibited knife in your possession. Again, taking that into account in a court of law is welcome. The set of provisions around knife crime is very welcome.

Q We have plenty of time, so I would like to read you a quote. In the first evidence session on Tuesday, I asked Nicole Jacobs, the Domestic Abuse Commissioner for England and Wales, what we could build on in the Bill. She said:

“Police-perpetrated domestic abuse related issues—and that means three key things to me. One is being more proactive about removing warrant cards if someone is under investigation for crimes relating to violence against women and girls or domestic abuse. The second is the specified offences that I believe should be listed that would constitute gross misconduct; again, I think they should be defined as domestic abuse, sexual harassment, assault and violence, so-called honour-based abuse, and stalking. The third is stronger provisions in relation to police vetting—requiring that every five years, and ensuring that if there is a change in force, police vetting takes place. Tightening up those provisions is not currently in the Bill and I think it should be.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 24, Q55.]

Do you agree?

Nick Smart: If we take the last point first, vetting more frequently during an officer’s service is welcome, and if they change force, entirely appropriate. We agree with that.

On gross misconduct, if you permit me, I have some data to share. We are talking about not just domestic-based issues, but superintendents served gross misconduct papers in the past few years for various things. In 2018-19, 19 of our members were served and two sacked; in 2019-20, 19 were served and four sacked; in ’20-21, nine gross misconducts, two sacked; and in’21-22, 12 with one sacked.

What that shows about gross misconduct is that roughly 80% of officers who are served with gross misconduct papers have NFA—no further action—taken against them. We suggest looking at cases on a case-by-case basis and, if it involves serious wrongdoing, that should be a matter for the appropriate authority to look at a severity assessment and to make that assessment straightaway. We believe we find that a quarter of our professional standards departments go to gross misconduct almost immediately, and if 80% to 85% of officers have no further action taken when they are given those gross misconduct papers, that indicates to us that the severity assessment is wrong in the first place. If there is wrongdoing and it is clear, however, then gross misconduct papers should be served.

We would say, again, that at the merest hint of a suggestion, police professional standards departments serve a gross misconduct, but we think that there should be more of an investigation to establish the facts before gross misconduct papers are served. But where there is a clear chain of evidence that relates to an individual and wrongdoing, it is entirely appropriate, and we support gross misconduct papers being served.

Q That is helpful. Is there anything that the Bill Committee can do to improve this piece of legislation to assist police forces across the country in dealing with such issues?

Nick Smart: I think that the way in which we as a service approach gross misconduct could do with a refresh. We have discussed that as a Police Superintendents’ Association, because our colleagues are usually the heads of professional standards departments making those assessments. Culturally, I think we go in low, so it is easy to give somebody a gross misconduct paper, whereas some work with the College of Policing to refresh how we approach that might be welcome, so that gross misconduct is served appropriately to the right individuals and we do not clutter professional standards departments with investigations that are going nowhere ultimately.

Q We have a minute or two left. Do you want to share with the Committee anything you have not been asked about, but think would be helpful?

Nick Smart: If I may, there is one item—the powers of entry—which I think you alluded to. An issue that we looked at was that of immediacy. Section 18 of the Police and Criminal Evidence Act 1984 allows the police to search after arrest, and that requires an inspector’s authority. In certain circumstances, if the inspector is not available or there is a policing need, the constable can go in and get retrospective authority.

In the circumstances outlined in the Bill’s powers of entry, nothing in there regards that immediacy. If the officer at the time needs to go in to recover the property but cannot get hold of the inspector—for example, if the inspector is in custody dealing with a review, or they are dealing with a complaint or a critical incident, and because they need to review what is going on and then give that authority—it would be helpful to have that provision in so that the officer can seek that respective authority from the inspector as per section 18 of PACE. The precedent is there, but a provision would tackle immediacy—

Q Can I ask you a follow-up question? If you remove the need for a warrant, do you not think that it is important to have some form of safeguard before the door is opened?

Nick Smart: Absolutely. I think in 99% of the cases the inspector’s authority would be granted.

Q But even in that 1%, would it not have a corrosive effect on public trust if an officer took the decision and then would not have been authorised?

Nick Smart: There is always the potential when you go through somebody’s door without a warrant for that. I think Andy Cooke from HMIC said that mistakes will be made. However, if there is a genuine belief that you are at a property, you have somebody with a mobile phone, they have seen you and you think that they will run out the back door of the property, or try to hide or destroy that property, you must wait for the inspector to give you the authority. That gives the individual time to act and potentially lose, damage, alter or destroy that property, so that when you go through the door you do not find it for whatever reason. It is an observation; we are not saying that it should be in there, but it is a consideration. As I say, the precedent is there in section 18 of PACE, which I think certainly we, and HMIC, would say has not been abused over time.

Thank you for your evidence. If there is anything you would like to add or that you feel you have missed when you go back on the tube, you can always write to the Clerk.

Examination of Witnesses

Councillor Sue Woolley, Emily Spurrell and David Lloyd gave evidence.

We welcome the three witnesses: Councillor Sue Woolley, Conservative lead at the Local Government Association and Safer and Stronger Communities; Emily Spurrell, a Police and Crime Commissioner and justice portfolio lead; and David Lloyd, a PCC and criminal justice portfolio lead. Can you start by introducing yourselves, please? We will start with David.

David Lloyd: Thanks very much, Sir Robert. Thank you for the courtesy of extending invitations to the Association of Police and Crime Commissioners to attend. You realise that PCCs have a strategic role in setting plans and budgets and holding their chief constable to account. We are not operational, and therefore any remarks we will make will be more about strategy—I suppose budgets, specifically—but we are also proudly victims champions. I suppose that is what we have brought to the criminal justice system—there is bias in favour of criminals. I am David Lloyd, and I am the PCC in Hertfordshire.

Emily Spurrell: I am the PCC in Merseyside. To echo what David said, scrutiny and partnership working in particular are some of the areas that we are keen to look at.

Councillor Sue Woolley: I am Councillor Sue Woolley. Today I am representing the Local Government Association. As you have already said, I am a member of the Safer and Stronger Communities Board. As a representative of local government, you will know, and I would suggest, that we are probably the bit of the jam that brings everything together, so that we have the opportunity to work with all those wider partners, including the PCCs, local government and the police force.

Q Thank you for your time and the distances that you have come to be with us today; it is really valuable to us in our consideration. I will start where you finished, Commissioner Spurrell, on partnership. Can you give me your reflections on community safety partnerships and your experience of them? We can go from left to right as I look at the panel.

Councillor Sue Woolley: The community safety partnerships are absolutely important for partnership working at that local level—I must impress that on you—and provide the opportunity to bring together those other agencies that work particularly in the wider scheme of things. For example, under local government you will have public health, which sits with upper tier authorities; of course, they are responsible for things such as drug and alcohol services. While you may have the sharp end, if you like—the police force and the PCC—working with those who have broken the law, it is then the turn of local government and its wider partners to pick it up and put some restoration into the process.

Emily Spurrell: As I said, I think partnership is a key part of the work we are trying to do. As police and crime commissioners, it is certainly very much in our job description that we bring partners together, and community safety partnerships are a good tool to do that.

They have probably had some challenges since they were first introduced many years ago, particularly around capacity in some areas—partly because of funding and because they do not sit on a statutory footing. In Merseyside, I fund the five CSPs that sit within the five local authorities. I give them funding to try to help them drive some of the really local issues that we see. It is also important that, as PCCs, we try to bring them together at the Merseyside force footprint level, so we can try to join that up. We want to try to get the balance of giving the local CSPs the powers and funding to do some really local issues while ensuring that we do not lose sight of how we get consistency and a joined-up approach at the force level.

In terms of some of the issues that the Criminal Justice Bill talks about—antisocial behaviour, nuisance begging and those kinds of issues—we absolutely need to use the powers of partners. We cannot rely on the police to do that job, for many reasons. The CSPs are the place where we can try to bring those people together and say, “It does not meet a police threshold, but we have other powers that we can use.” That is the value of the CSPs all coming together to do that work.

David Lloyd: Emily is quite right: they are very good idea. I think they are variable. In Hertfordshire I have 10, based on the borough council footprint. Some very much want to work alongside policing. They are a very good idea, because community safety is clearly not just a policing issue; that is the most extreme end of it, but most of it is further upstream. But they are variable, and a lot of it is to do with the funding that they choose to put in or not. It is very easy to spend other people’s money on something; it is far more difficult to spend one’s own money on something. Frankly, that can be an issue, so we need to think about that funding and how it happens.

We also have to think about how they can influence the police and crime plan and how we can influence what they are doing. Even though they are fairly mature organisations, things still do not always join up as much as you might expect, especially if there are different political beliefs and different political leaderships.

Q Thank you for all those answers. I want to pick up on that final point. Clause 72 gives PCCs the ability to essentially say to the CSP, “This is what you should be prioritising,” and the CSP has to take that on board and, if it is not acceptable, come back in a formal process to say why not. I am not sure whether that is needed. You have talked about culture, mutual trust and realising that local government tackles the same problems as policing. Is the power necessary? As PCCs, is it one that you would expect to exercise? From a local government point of view, Councillor Woolley, would you be impressed if your PCC or Mayor was to exercise it with you?

Councillor Sue Woolley: I couldn’t possibly comment!

David Lloyd: When they were originally brought in under the Labour Government in the ’90s, I think they were missing teeth, if you like. Perhaps there was more accessible funding in those days, but to an extent I think that they do not have the teeth. Clearly, there is now a democratically elected corporation sole: a person who has that very direct role around community—a direct mandate from the public. So being able to sweep up into what the local council is doing would be very helpful, because we need some way of ensuring that, where common persuasion does not work enough, there are some teeth within it.

Q Should that perhaps cut both ways? As you say, the PCC has a democratic mandate. The local authority does as well. It is elected differently, but it is still drawn from the people—of the people. Are you not concerned that it creates a power imbalance, where the PCC can make that mandate, but the other partners cannot?

Emily Spurrell: From my point of view, if the system was working as it should—again, I am reflecting on my own experience in Merseyside—you should all be talking about the same things anyway. When I look at my CSPs in Merseyside, if they are not all talking about serious organised crime, something has gone wrong. They are all talking about it, because it is an issue in all their areas. There will be some really specific issues that I think CSPs need to be able to look at but, generally speaking, if they are not talking about those issues, something else has gone wrong further upstream. It could be helpful to put this in because then, as David says, there is a reminder that you need that connection. The reality is that if they are not really talking about those things, there are bigger issues at play, in terms of why those same priorities are not being picked up.

Councillor Sue Woolley: I think that if at all possible, when you have partners around a table and they are equal partners, that is a conducive way to good practice and working. I am quite sure that works really well in some places. In my own area, that works particularly well. All partners are equal around the table; everybody works together. I am quite sure that in other areas, that bond may not be as strong. Rather than just legislating for something, I would suggest that, if at all possible, there could be something around a duty to work together. You will know the language better than me.

Emily Spurrell: That actually already exists for PCCs. It is within our duty to work in partnership as well.

Q Mr Lloyd, I want to go back to what you were saying at the beginning about your role in relation to the police—in standing up for victims. With the new powers that are extended to chief constables, and particularly the new duty of candour, how do you see the role of PCCs in ensuring that is effective?

David Lloyd: We of course hold the chief constable to account in a variety of ways and in different places. Realising that there is a duty of candour is another part of the armoury, because it is something that we can push back. I know that this was very much part of the post-Hillsborough legacy. Clearly, that whole lack of candour was one of the things that went wrong. We are good at holding the chiefs to account, and it should happen locally. With this extra duty there, it is something that we will need to be reminded about—it is helpful for us to be reminded that there is a duty of candour—but we can then ask those questions as well.

Q I want to pick up on the repeal of the Vagrancy Act again. It is an ambition of this Bill to fill the gap that would otherwise be left by that Act, by addressing the nuisance element that may exist within those matters. Does this Bill provide a helpful tool for filling the gap that would otherwise be left by the repeal of the Vagrancy Act?

David Lloyd: Clearly, there are people who are homeless, who are also almost aggressively begging; there are people on the streets who are aggressively begging, and are almost aggressively homeless, if that does not sound like a strange thing to say. However, I think we do need a great deal of care. I suspect that the vast majority of people who are homeless on the streets would not be seen as committing a criminal offence by any court, police officer or PCC. They require care and a way of ensuring that any drug and alcohol addiction or mental health issues are supported. It is a difficult area.

Q To pin you down a bit more—please, any of you jump in—do you think there is a distinction between nuisance begging and nuisance rough sleeping? They are treated differently in the Act, but it sounds as if you are driving at two different things

David Lloyd: I think there is a distinction. We have heard evidence, and I am sure that you have heard evidence, of people sleeping in doorways who cannot be moved on by the local authority and there is nothing that can be done.

I suppose my real concern within this is that, especially as budgets get tighter and tighter, the duty around homelessness may change from being a duty on the local authority to a police issue. I do not think that that would be overly helpful if it were not structured in the right way—that it is seen that the principal duty is on the local authority rather than it being a policing issue. I think that there is a real danger of getting to the point that the police need to pick this up. Clearly, policing is not going to be able to deal with anything other than the very sharp and focused bit about this moment; there is far more to it than just this moment.

Councillor Woolley, given your role, do you have a view on that?

Councillor Sue Woolley: I think we have to be very careful that we do not unnecessarily criminalise rough sleeping. As you are probably aware, through their various services, councils work very closely with those people that might be rough sleeping. There is a combination of rough sleeping and begging.

If we go down the road of criminalising something, then we run the risk of not being able to support those people and the one thing that we do want to do as a society is to support those people. I would just play back that, during covid, we got those people off the street. When we got them off the street, we were able to put services in for them and work with them. I would love to see that happen again. However, we do have a cohort of those who engage in nuisance begging, and we also have a situation of organised gangs sitting behind those who are begging. It is not a black and white answer at all.

Q Thank you. That is very helpful. My final question is for Ms Spurrell—I have not asked her anything yet—and is about antisocial behaviour and the new power for a victim who is dissatisfied with the response to ask their local PCC to conduct a review. In the context of the work that you have done and how frequently antisocial behaviour occurs and how it is not always easy to tackle, how do you see that part of your role unfolding? Do you think it would be useful?

Emily Spurrell: I think it would be useful. We obviously already have the community trigger process in place at the minute, where if someone is dissatisfied with the response from the local authority, they can ask for a review from the PCC’s office to check whether the process was followed sufficiently. I think there are challenges around that in terms of public awareness; I do not think we are seeing huge numbers of that in some areas because much of the public are not aware that that is an option.

It comes back to what we were talking about at the beginning: it is not about the PCC trying to instruct or direct; it is about being able to have the powers to question, challenge and say, “As a partnership, are we doing enough to tackle this issue?” There will be times when actually it will be the police that need to step up in that response, but there will also be times when the local authority have not made a good enough response to that particular incident. It is about having someone who has the power to take another look and say, “Actually, I think we have missed something here. How do we put that right?” and then giving reassurance and saying, “Actually, the local authority or the partnership have done everything possible and there is no more that we can do.” It is a helpful check, and it probably is just an expansion of what we already do at the minute around the community trigger.

Q Do you think it is a meaningful enhancement of victims’ rights?

Emily Spurrell: It is a step in the right direction, yes. It is useful just to ensure that those victims of ASB are not dismissed as low level and are considered. We do see incidents where, if victims of ASB are not taken seriously at that first stage, things can escalate and become quite serious, so it is important that victims feel as though they have been heard and that everyone is working towards trying to find a solution, which is not always the case.

Q Do either of the Opposition spokesmen want to come back? No. Can each witness give me a couple of minutes on something you have not been asked about that you think ought to be in the Bill, or something you think is good in the Bill? Let us start with you, David.

David Lloyd: I am broadly supportive of the Bill. I am particularly interested in suspending short custodial sentences. I think that makes a great deal of sense and I would highly recommend that. I have covered the piece on nuisance begging and rough sleeping that I was interested in. As a real victims champion and someone who has pushed hard on violence against women and girls since 2012, the aggravating factor for murder at the end of a relationship and MAPPA for controlling and coercive behaviour is something that, again, I highly commend and think that we need to do.

The other thing I picked up from the earlier session was the question around vetting. We need to just consider whether we need to, in many ways, vet to values. We are clearly doing it more and more in our recruitment process, but it strikes me that there are very few officers who have met the criminal threshold and therefore are likely to have on their file a criminal conviction. That does not mean to say that we do not have misogynists or racists or homophobes within the organisations. We have much to do around that. We need to just think about what else we might be able to do to vet to values, so that we make sure we have police forces that are fit for the public. I think that the very vast majority are fit, by the way—I am not suggesting for one moment that they are anything other than that—but we might want to look at that quite closely.

Emily Spurrell: I echo some of what David said there about some of those challenges. To go back to the begging point, which is a wider issue and I know that it is linked with what is going through to the Sentencing Bill, there is a real emphasis and a real push to try to reduce the number of short-term sentences and we want more people in the community. I worry whether some of the provisions for the Criminal Justice Bill, such as the aggressive begging provisions, will actually see an increase in that, which is not what we want, and the two will work counter to each other. I would just say to be mindful around that.

As for some of the bits that David alluded to around vetting and some of the work that is under way to try and increase trust and confidence, there is probably scope to go further. I know there is work being done. The Mayor of London has been quite keen to push some of that and I think he has been working with Harriet Harman on an additional level of scrutiny around the ability to dismiss officers who have been convicted of serious criminal offences and more flexibility around pension forfeiture, for example. There is more scope to do more around that building of trust and confidence within policing in terms of that scrutiny.

Around the vetting, there is work under way. I am aware that there is a national project to try and increase vetting. Echoing what the superintendent said in the previous session, trying to make sure that there is that regular touch base, particularly when officers are crossing forces, is really helpful.

The only other thing I will say around that is that the big challenge we face is around how long these things are taking. It would not matter so much that people were going through a process if it was resolved quickly. Instead, we see some of the examples the superintendent was referring to, where officers accused of gross misconduct sit for years waiting for an outcome and then it gets an NFA or gets downgraded. There is a real challenge here around capacity in the system, both internally in professional standards and with the Independent Office for Police Conduct, and how we can speed up those processes so that we have a robust system that is not taking up so much time and taking officers off the streets.

My only other comment would be in relation to the introduction of the express power for the courts to direct prisoners to attend their sentencing hearings. You will obviously be aware that this came up quite strongly after Olivia was murdered on Merseyside and her family have been very clear about the insult to her mum and her family when the offender did not turn up to hear the victim’s personal statement. I really welcome this, notwithstanding some of the logistical challenges, because it is a really welcome change: offenders should be expected to listen to the impact of their crimes on their victims and their families.

Councillor Sue Woolley: Very briefly, and following on from the point that Emily just made, I would just make a point about the capacity issue, particularly around child sexual abuse reporting. We must be very careful that justice needs to be seen to be swift. What has been shown with various reports on child sexual abuse is that reports have been made but it is taking too long for those individuals—those young people—to be supported when they have then been taken through a process.

Therefore, although it is laudable and the right thing to do to ensure that reports are made in a timely fashion, let us make sure that we have the capacity at the other end to be able to support those young people.

Q I recognise that you are strategic rather than operational, all three of you. However, as you may have heard in the previous session, I am particularly interested in knife crime, as I am sure all of you are, as well. Are you content that the provisions in the Bill and the powers that they confer will make a difference in tackling knife crime? Is there anything else that you would have liked to have seen in the Bill to assist you in representing—well, in the case of the PCC, the people who elect you, and of course you, Sue, although I am sure that all of you are equally concerned about knife crime?

Emily Spurrell: From my perspective, the way that we tackle knife crime is actually not through the criminal system; I think it has got to be through that early intervention space. I welcome the provisions in the Bill. Again, the comments made by the superintendent about better provision for identifying zombie knives, getting weapons off the streets and strengthening things like the sale of knives, which has been done in recent months, is all very welcome. But for me, it comes down to that early intervention space: the investment in youth services. The work we are doing on violence reduction units, for example, which is being led by PCCs, is very positive. I will say that it needs to come with long-term, stable funding.

The Minister will have heard me say that many times before, but it is something that we really need, because that long-term, public health approach is how you really tackle knife crime, although I think the provisions in the Bill are very welcome, just in terms of giving police that extra ability to seize those weapons and identify those individuals who are likely to pose a threat.

David Lloyd: I agree entirely. Clearly, I am not operational, so to that extent I do not know. But clearly there is a fear of knife crime among the public. We do need to do something about that. And zombie knives and the work of one of the members of this Bill Committee on them is noted.

However, it strikes me—this relates to Emily’s point—that there was a case some years back, where 80% of the bladed injuries in a hospital in Buckinghamshire were not known of by the police, because there is not the sharing of data between health and the criminal justice system. In many ways, if we want to get up the line, we need to be able to find where some of these problems are happening, and better sharing of data might do a lot more than even some of the provisions in this Bill.

Councillor Sue Woolley: I suppose that what I would say to you is that I would probably like to take one step back and go a little bit more upstream, and probably not see knives getting on to the street in the first place. That may mean taking out the ability to order one through the post, as it were, etc. I would feel more comfortable if they were not there in the first instance.

From the council’s point of view, we would therefore plead that trading standards is the obvious arena for making sure that that happens. Anything that supports trading standards officers to be able to take those weapons off market stalls, etc. would be very helpful.

Emily Spurrell: I will just add one other point on the police powers. Again, we always have a balance to strike. We welcome giving the police the tools to do the job better, but this is where our role as scrutineers is really important, so that we make sure that where they are using those additional powers, they are being used in a fair and proportionate way. That is very much something that we would look to focus on as well.

Q Sue, you mentioned trading standards. Are you saying that you do not think they do have the powers? As a constituency MP, I have reported to the police the sale of these knives. They have then got trading standards involved, and trading standards went and seized vanloads of this stuff.

Councillor Sue Woolley: Sorry, I am not saying trading standards staff do not have the power. I think, again, it is a capacity issue. We could do with 10 times the number, and that would go a long way towards stopping these knives getting on to the streets in the first place.

Q May I pick up on a point that you made earlier, Councillor Woolley? It was about rough sleeping. You mentioned that this is often about dealing with people with very complex issues; often, having access to addiction services is critical, and progress is made by different agencies working together. I agree very strongly about how making progress and helping those on our streets is most important. Do the provisions in this Bill help or hinder that work?

Councillor Sue Woolley: It helps, but more could be done. On the duties, it would be good if we could have language that said, “We expect, as members of the public, that you will work together.” It would be good if the language, rather than telling various agencies, “You have to do this and you have to do that,” was, “Our expectation is that as organisations, in the first instance, you will work as a team, as a community safety partnership.” If you work as a partnership, everybody has an equal responsibility, and that is the bit that I would really like to see emphasised.

David Lloyd: To underline the concern that I had earlier, there is a real danger, if it is seen that the police have the power to do something about homelessness or rough sleeping, that it might be left for only the police to pick that up. In Hertfordshire, we really believe in, and the whole of our policing is based on, prevention first. In many ways, it would be best if we did not have to use the police at all and everything was done further up the line. I think that if we end up at a point where councils can say, “Well, this is not entirely our responsibility; the police have a responsibility for it,” there is a danger, in the same way as with mental health.

We had the issue with mental health authorities not picking up the issue of people who were mentally unwell. It ended up with the police doing far too much and mental health nurses not enough. I fear that, especially in a time of tight budgets, we may well find that this is pushed more towards the police, so we just need to recognise that. It might be that by working even better through community safety partnerships we get over it. But it is better to go in with our eyes open to it.

Thank you very much, all three of you, for giving evidence to the Committee. I am sure that the Committee will find it useful when we go into line-by-line scrutiny of the Bill.

Examination of Witness

Mark Fairhurst gave evidence.

We now welcome Mark Fairhurst. Would you like to introduce yourself to start with?

Mark Fairhurst: Sure. I am Mark Fairhurst, the national chair of the Prison Officers Association. I am also a serving prison officer, and have been since 1992.

Q Good afternoon, Mark. Thank you for giving up your time for us this afternoon. The stresses and strains within our prisons are well documented. Recent legislation has added to them with an increased demand for prison places. For the record, could you outline what is happening in our prison system that has led to the Government coming forward with the proposal to send prisoners abroad?

Mark Fairhurst: We are really short of space at the moment. That is why the Government introduced an earlier release scheme to relieve some of the pressure. As it stands today, we probably have about 850 spaces left in the adult closed male estate. At the time the Government introduced these temporary measures, we had less than 200 spaces left. As the backlog in the courts gets dealt with, and we see more people getting sent to prison, we are really struggling for space. That means we now have to overcrowd already overcrowded prisons. There is a really big strain on the system at the moment. I believe that, come next spring—March or April time—we will be in crisis again with prison spaces as things start to ramp up.

Q Did the Government consult the POA about their proposal? If they did, what was your response?

Mark Fairhurst: No, they did not consult us at all. It was on the backburner for some time, but we were not made aware of it until it was actually going to be announced and put into action. Our response to it would have been the same no matter what: you need to look at sentencing first and foremost, particularly for those serving the shorter sentences. That would free up a lot of space. Overcrowding prisons even more just puts more pressure on the system. We need to look at prisoners serving sentences of imprisonment for public protection as well. We have about 3,000 people who are serving indeterminate prison sentences. They are not all a risk to the public. We need to look at that as well, to free up some space.

Q The Government have put forward proposals on how we treat short sentences, and the presumption against short sentences, which I personally think is quite positive. How do you envisage that this proposal to send prisoners abroad would actually work? What issues will arise from that?

Mark Fairhurst: The problems I can foresee are that, for one, you have to have the agreement of the country you are going to deport them to. Secondly, you need to know the identity of the person and what country they are actually from—a lot of people do not divulge what country they are from. Thirdly, if you are going to send foreign criminals back to their country of origin and not insist that they finish their prison sentence in that country, there is not much of a deterrent to foreign offenders committing crimes in this country, because they will get a shorter prison sentence and will be sent back home at the taxpayer’s expense. Those are the problems I can foresee.

Q I meant specifically sending British prisoners to see their sentence out in a foreign prison.

Mark Fairhurst: Again, it is all about cost. How much is it going to cost the taxpayer? Is it practical? How do we get them there? How many are we going to send? Our budgets are getting cut year on year through His Majesty’s Prison and Probation Service and the Ministry of Justice. Are we going to be given additional funding for it? The Government have promised 20,000 additional prison spaces. That is all well and good, but we cannot build prisons quickly enough and we cannot staff them because we are in a staffing crisis—we just cannot retain people.

Q You mentioned that sentencing could be part of the solution to the problem. I am struggling to think of alternative ideas to reduce the demand on our prison system. Perhaps the Government are right to send prisoners abroad if they can rent space.

Mark Fairhurst: It is welcome that the Government have decided that there is a presumption against shorter sentences. If they focused more on community sentences that the public have confidence in, that would help. If they focused on a re-sentencing exercise for IPP prisoners, as the Justice Committee recommended, that would free up a lot of space. But again, have we got enough probation staff in our communities to supervise offenders given community sentences? That is another big issue.

Q You just answered my next question. We cannot expand community provision if we do not have support in the community for defendants. What do you think will be the likely impact of the scheme on your members?

Mark Fairhurst: We will just see more and more pressure heaped upon us because prisons are already overcrowded. It will heap even more pressure on people. We cannot retain staff; most of them leave within the first two years of service. We do not have the infrastructure in many Victorian jails in inner cities to accept more people, so how quickly will we build new prisons and when will they be ready? More importantly, how will we staff them? For everybody’s notation, we are seeing a ramp-up in violence against staff, and more and more incidents of concerted indiscipline. It is only going to get worse the more we crowd prisons.

Q Everybody around the table will recognise the tremendous work that prison officers do, and the increase in stresses and strains that they are facing. We need to be able to deal with violence against prison officers as well. Your members play an important role in through-the-gate services, helping prisoners prepare for release. How does the scheme impact that? I think the idea is that the Government would bring prisoners back before final release, but does that work?

Mark Fairhurst: Not really. It works in the open estate. The open estate is very successful at preparing people for release and for getting back into their communities, but it is not practical in inner city local jails because we simply do not have the resources to do that. I would rather the Government focused on increasing community sentences with the correct supervision, and expanding the open estate so we could prepare people for release and hopefully rehabilitate them.

You have to understand that unfortunately in the prison system, rehabilitation is just a word—a headline. We do not have the resources to rehabilitate anybody because we do not have enough activity spaces or workspaces. We struggle to recruit teachers and give everybody a purposeful workspace in our prisons. That really needs to be addressed.

The other focus is that a lot of people in prison really should not be there because they have severe mental health disorders. They would be better suited serving their sentence in secure mental health institutions, so maybe we need to look at investing in that as well.

Q Thank you. I have one final question on a different subject. A provision in clause 22 of the Bill compels defendants to appear in court for sentencing. How does that affect your staff? You will not necessarily be transporting defendants, but in some cases you will be.

Mark Fairhurst: It is quite easy for prison officers to force someone to attend court; we restrain them on to a cellular vehicle and then they are taken to court. The problem arises at the other end because the courts are run by private security firms now. Have they got the staffing levels needed to take someone who has been recalcitrant off a bus and into a cell in the court? Have they got the resources to drag them into the dock if they are still displaying violent tendencies? Will that disrupt proceedings in the court? Will they be abusive to victims? Will it be distressing for the victims of crime to witness that in the dock? There are a lot of issues we need to look at.

Q Can I pick up on that final point about getting defendants into the dock for sentencing? I am sure you are aware that the discretion as to whether that order will be made will sit with the judge, so there will be an assessment of the defendant’s conduct. If the judge deems that it is appropriate to bring the defendant into the dock, the parameters for the use of force will be a decision that remains with the prison authorities. Do you think that is the right approach?

Mark Fairhurst: Judges have always had the discretion to order a defendant into the dock. When we used to run a court in the ’90s, there was many a time that we would have used force on a prisoner to get them in front of a judge. That discretion has always been there. It is the right way to do things—we are best suited to decide when it is appropriate and proportionate to use force.

I would like to see dialogue between the staff in the courts and the judge because, if the prisoner is being extremely violent or aggressive, I do not think sitting them in front of a judge is the right way to do things. Maybe we could do it remotely, in a secure room, so the victim still has the opportunity to read out their impact statement, rather than proceedings being disrupted—when you do things remotely, you have the ability to mute. We could still force the prisoner to address those victims, and the victims would feel as if they were getting some sort of justice.

Q I think that is under consideration, actually. I do not know whether you have experience of this, but I wanted to ask you about the fact that, certainly in the public perception, there have been a spate of cases—very serious cases, actually; you could probably go through the half dozen most high-profile offences of the last one or two years—where it seems that almost every defendant has declined to attend their sentencing hearing. Among the people you represent, is there a perception that that has now become something of a trend? Sorry, there is probably a better word than “trend”—has it become something of a prevailing behaviour?

Mark Fairhurst: Yes, there have been some really high-profile cases over the past couple of months in particular. It does seem to be a trend, because there is no deterrent. If you are already getting a lengthy sentence, then really, in your eyes, as the perpetrator of the crime, you are untouchable.

As well as sentencing people for failing to appear, maybe we need to look at what we can do when they are serving their sentence. What privileges can we take off them? Can we stop them getting face-to-face visits from family and friends, or force them to do the visits remotely, as a consequence of their actions? Let’s take some privileges off them while they are serving their sentence so it really hits them hard, and so that people think that justice is actually being served—“You are not untouchable, and we are going to affect the way you serve your sentence.”

Q Mr Fairhurst, I asked our other witnesses if they wanted to volunteer any further information to the Committee that they had not been asked about. Are there any other points you would like to make to the Committee, while you are online, about how the Bill could be improved or any concerns you have?

Mark Fairhurst: There is just one concern in particular with this Bill, where you are forcing serious offenders —particularly sexual offenders—to serve their entire sentence.

That is in the Sentencing Bill.

Mark Fairhurst: Usually, they get released at the two-thirds point for good behaviour. If there is no incentive to behave in prison, that could have a knock-on effect on staff. Also, if you force someone to serve their entire sentence, we must remember that they are no longer subject to a licence in the community, so there is no supervision for them when they are released after serving their entire sentence. That is another consideration.

Thank you very much for your contribution, and have a good day.

Mark Fairhurst: Thank you very much, everyone.

Ordered, That further consideration be now adjourned.—(Scott Mann.)

Adjourned till this day at Two o’clock.

Criminal Justice Bill (Fourth sitting)

The Committee consisted of the following Members:

Chairs: Hannah Bardell, † Sir Graham Brady, Dame Angela Eagle, Mrs Pauline Latham, Sir Robert Syms

Costa, Alberto (South Leicestershire) (Con)

† Cunningham, Alex (Stockton North) (Lab)

Dowd, Peter (Bootle) (Lab)

† Drummond, Mrs Flick (Meon Valley) (Con)

† Farris, Laura (Parliamentary Under-Secretary of State for Justice)

Firth, Anna (Southend West) (Con)

† Fletcher, Colleen (Coventry North East) (Lab)

† Ford, Vicky (Chelmsford) (Con)

Garnier, Mark (Wyre Forest) (Con)

Harris, Carolyn (Swansea East) (Lab)

† Jones, Andrew (Harrogate and Knaresborough) (Con)

† Mann, Scott (Lord Commissioner of His Majesty's Treasury)

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

Phillips, Jess (Birmingham, Yardley) (Lab)

† Philp, Chris (Minister for Crime, Policing and Fire)

Stephens, Chris (Glasgow South West) (SNP)

Sarah Thatcher, Simon Armitage, Committee Clerks

† attended the Committee


Kennedy Talbot KC, Barrister, 33 Chancery Lane

Paddy Lillis, General Secretary, USDAW

Paul Gerrard, Campaigns, Public Affairs & Board Secretariat Director, The Co-op Group

Helen Dickinson OBE, Chief Executive, British Retail Consortium

Clare Wade KC, Independent Reviewer of Domestic Homicide Sentencing

Public Bill Committee

Thursday 14 December 2023


[Sir Graham Brady in the Chair]

Criminal Justice Bill

The Committee deliberated in private.

Examination of Witness

Kennedy Talbot KC gave evidence.

Good afternoon. We are now sitting in public and the proceedings are being broadcast. We will now hear oral evidence from Kennedy Talbot KC, barrister at 33 Chancery Lane. For this panel, we have until 2.20 pm.

Sir Graham, I was hoping I might declare an interest at this stage. I am a member of USDAW—the Union of Shop, Distributive and Allied Workers—as is my wife, and the Committee has a witness from USDAW coming later.

Thank you very much; that is all recorded. Mr Talbot, may I ask you to introduce yourself?

Kennedy Talbot: Yes. Good afternoon, ladies and gentlemen. I am a barrister in independent private practice. I am not part of any pressure group; I am not pushing for any particular position. I suppose the only interest that one could say I have and might declare is the fact that at the moment I am not able to be paid out of restrained funds, but if this Bill becomes law, there would be the power for that to happen—whether I would be better off as a result of that I do not know. Apart from that, my only interests are to help the Committee, if I can, to ensure that the Bill operates efficiently and fairly and promotes the orderly dispatch of this business.

Excellent. Thank you very much. We will start with shadow Minister Alex Norris.

Q43 Thank you, Mr Talbot, for your time and expertise today. Given your admirable record in the proceeds of crime field, I am hoping that you might set out for the Committee what you think of proceeds of crime arrangements at the moment, and then, with particular reference to what is in clause 32, which is an attempt to more tightly define the purpose of confiscation under those arrangements, reflect on your view on that as well.

Kennedy Talbot: Yes. Speaking broadly for the moment and without commenting on the Bill—I do not think the Bill would be a vehicle to make all the changes that might be desirable—the key issue is plainly to investigate and to identify criminal proceeds and then to ensure that they are secure. That is the principal problem: by the time the courts get involved, making orders divesting people of assets, in most cases the assets have long gone. That is if the courts actually are engaged.

As you will probably recall from the report in March by the Public Accounts Committee, looking at the investigation of fraud, something like 41% of crime is fraud, yet it is largely not investigated. Of the 900,000 reports that are made to Action Fraud, only 1% result in any kind of judicial proceeding. That, from the broadest perspective, is where the problem lies—ensuring that fraud and other economic crimes are properly investigated and assets are frozen early. That is the best way to ensure that they are confiscated or forfeited.

Q What do you think about the clause 32 provision to try to tighten up the definition? Will that help to give clarity to the courts about what we are seeking with this legislation?

Kennedy Talbot: I think it may be possible to make amendments to the Bill in two respects to deal with the issue that I have just mentioned. One involves restraint orders. I am sure that the Committee is familiar with the power for the court to make restraint orders preventing people who are suspected of crime, and then charged with crime, from dealing with their assets. At the moment, a statutory proposal in the Bill is that the risk of dissipation factor—such risk needs to be established for an order to be made under case law, not under statute —should be specified. The answer, in my view, is to scrap the risk of dissipation, so that it is not a requirement.

In many cases, what prevents prosecutors from applying for restraint orders is that they feel they cannot meet that test. Normally, that is because the case is brought to them some time after an investigation first started. The defendants are often aware that they are being investigated, and the case law more or less establishes that unless you can show that a defendant is on the point of selling his house or moving £100,000 to the UAE or whatever it may be, you cannot get a restraint order. Scrap the risk of dissipation.

Q You said two amendments. That was one.

Kennedy Talbot: That was one. The other is about receivers. Receivers have always been a very useful tool, in particular with economic crime involving businesses, because they enable the court to appoint a court officer, a receiver—normally an insolvency practitioner—to manage, run and control businesses. That was from the time that a restraint order could be made, so from the very beginning of an investigation. As a result of case law that went to the Supreme Court, however—a 2013 case named for the Eastenders Group—management receivers, as they are called, have dried up. The reason for that is that the Supreme Court held that if the management receiver was wrongly appointed in the first place, the prosecutor had to meet the costs. In that case, it was more than £1 million, which had a chilling effect, so prosecutors simply have not applied for receivers at all.

The amendment would be to make receivers’ costs payable out of central funds. There may be a way to ameliorate the problems that one might have with the Treasury. I do not know whether you know about ARIS, the asset recovery incentivisation scheme, but with that up to half of the recoveries are hypothecated back to the investigating and prosecuting authorities, but they must use them within particular accounting periods. The answer, rather than sending it all back, might be to put a portion into a fund that could be used for those special expenses. That would not cost the Treasury a single penny.

Q I wanted to ask about the various forms of suspended account and suspended account schemes, which appear in schedule 5 to the Act to complement the confiscation provisions. Will you comment on them? Is that different from what you have currently? I am not an expert in this area.

Kennedy Talbot: No, neither am I. I am just here for clause 32 and schedule 4, and that is in schedule 5. However, I can say that I acted for a bank in a case in the High Court last year, which was effectively part 5 of the Proceeds of Crime Act 2002 being used to recover all the funds that were in suspended accounts, so it is possible to do it without new law, but I have not looked at the provisions of schedule 5 in any detail to be able to help with that; I am sorry.

Q As a barrister, what do you think the kind of practical benefits of the confiscation measures will be?

Kennedy Talbot: Do you mean as they stand?

In the Bill.

Kennedy Talbot: I think that the good things about the Bill include the statutory process to reach settlements immediately after a defendant is convicted. It is abbreviated to EROC, early resolution of confiscation, where the court can direct the parties to meet and seek to reach a settlement. I think that is a good idea. In my view, it needs some tinkering with, because at the moment the convicted defendant has no incentive to co-operate, and most defendants want to put off for as long as possible the day when their assets are confiscated, as you might expect. Unless we can work in some incentives, I do not think that will work as well as it might.

Q Can you give me an idea of what those incentives might look like?

Kennedy Talbot: It might be difficult for the court to be able to ameliorate the sentence that the defendant might suffer. It may be possible to reduce slightly his confiscation liability—to give a reduction, as one gives a reduction to defendants who plead guilty—but by that stage, when we come to confiscation, most defendants are serving prison sentences, and their prison conditions are the most important thing to them, so prison privileges and categorisation might be the way to incentivise without damaging the public interest and people getting reductions in their sentences unjustifiably.

Do any other Members have questions for this witness? No. In that case, thank you very much, Mr Talbot, for your time and for assisting the Committee in the way you have.

Kennedy Talbot: It has been a pleasure and a privilege. Thank you for inviting me.

Examination of Witnesses

Paddy Lillis, Paul Gerrard and Helen Dickinson OBE gave evidence.

We will now hear oral evidence from Paddy Lillis, general secretary of the Union of Shop, Distributive and Allied Workers; Paul Gerrard, campaigns, public affairs and board secretariat director for the Co-op Group; and Helen Dickinson OBE, chief executive of the British Retail Consortium. We have until 3.05 pm for this panel. Please could you all introduce yourselves for the record?

Paddy Lillis: I am Paddy Lillis, general secretary of USDAW, the shop workers’ union.

Helen Dickinson: I am Helen Dickinson, chief executive of the British Retail Consortium, the trade body for many retailers in the industry.

Paul Gerrard: I am Paul Gerrard, public affairs director at the Co-op Group, the world’s oldest co-operative society.

Q The panel will not be surprised to hear that I want to ask you questions about violence and abuse against retail workers and retail crime. The Bill does not have very much—or is silent—on the matter. Could you tell us about the scale of the challenge at the moment within your industry?

Helen Dickinson: Thank you for the opportunity to come and talk to you today. We are not technical experts on the Bill, but we are happy to talk about the scale of the issue and an amendment that we think could help to address the situation, at least in some instances.

You will hear various bits of data about the impact of violence and abuse on people who work in the retail industry. We compile data. Many businesses, such as the Co-op, have their own data. USDAW has data, as does the charity that looks after many employees who work in retail. All the different sources of data show a significant trend: an uptick in shoplifting, organised crime, and violence and abuse against shop workers and wider retail workers.

For me, there has been a big turning point this year. Businesses such as the Co-op and other frontline convenience stores are often on the receiving end when they ask a customer about age-related sales or something, but it is now many different types of businesses, including clothing, fashion and beauty businesses. It is a much more prevalent issue right across retail, rather than being concentrated on food.

The scale of it is much higher than it was pre-pandemic. The number of incidents of violence and abuse against retail workers has nearly doubled since before the pandemic, from around 450 per day across the country to around 850. I am sure that Paddy and Paul will share some specific statistics from their point of view, but that gives you an idea of the scale. It is an increasingly worrying trend that has a big financial impact on businesses, which we are all paying for in terms of inflation, but most significantly on the people who work in retail, and on customers and their families as well.

Paddy Lillis: Thanks for the invite to the Committee. As part of our Freedom From Fear campaign, we have been surveying our members for 20 years about violence and abuse towards retail staff. The idea that this thing is a victimless crime is far from the truth. Shoplifting has cost £1 billion in the last year—£1 billion for employers for security measures. That is one side of it.

The other side, which I will concentrate on, is the number of incidents of abuse, threats and violence towards retail staff. Do not lose sight of the 3 million retail workers in the UK. They deserve to have the protection of Parliament, the police, the judicial system and ourselves. We have seen an explosion of shoplifting and violence towards staff over the last 12 months. It nearly doubled during the pandemic. The sad part is that these people are working in the community, living in the community and serving the community, and they do not deserve this sort of abuse, but we are seeing an increase. I think 62% of the people we surveyed have been abused—verbally abused. About 56% of them have been threatened and 5% have been assaulted. We had a member who lost his life last August in Andover in a Tesco store, and that is the worst side of it.

We would argue that the Bill is missing a trick here in the sense that it represents an opportunity to include a statutory offence to tackle the violence towards retail staff. It is horrendous when you listen some of the stories, as we have to do every day. It is heartbreaking—from people being spat on, threatened or abused, to being assaulted, having their cars damaged, and being followed at night when leaving their stores. It is just horrendous.

I would say there are three elements to this. We have had the historical issue for many years in terms of drugs and alcohol, with people stealing them. They are probably the most dangerous. On top of that, with the cost of living—I am not condoning this, by the way—people are shoplifting. We have also seen over the last number of years that criminal gangs just see retail as an easy target, because the likelihood of being caught is minimal. If you are caught, the chances are you will probably just get a slap on the wrist. For us, this really is important. We look at the Scottish Bill that came in in 2021. There have been 6,000 additional investigations of retail crime by the police in Scotland, so it does work when there is a specific offence out there.

The other thing I will finish on is this £200 levy, where it is a summary offence—that is, it cannot go to a magistrates court. In reality, the police cannot be bothered—it is not so much that they cannot be bothered, but more because of a resource issue. If they do stop them, it is a fixed penalty notice, and that sends all the wrong signals to the criminal fraternity: “It is probably a fine more than anything else.”

There is an opportunity here, I think, to send a message out from Parliament, from yourselves and from ourselves as employers and trade unions, that this is unacceptable and appalling behaviour, and that we are all on the side of retail workers. Retail workers are in every postcode in the country, and in every constituency in the country, and they do deserve our support.

Paul Gerrard: Thank you for this opportunity. At the Co-op Group, we run 2,500 small-format convenience stores across the country. We have seen a 44% rise in incidents of crime in our stores, a 36% rise in incidents of violence, and a 38% rise in incidents of abuse.

What does that look like? Speaking to some colleagues over the last couple of days, just to get a live sense of that, I heard that a store manager was attacked by a customer “with a knife who went for his throat. Fortunately, the assailant missed my colleague’s throat, but hit him in the collar.” He had to be hospitalised. The individual got a £200 fine. There are two individuals in and around Manchester who are stealing in excess of £180,000-worth of product a year, and by the time they have sold it for a third of the price, they have a pre-tax income of £30,000 each—I am not sure whether they are paying a lot of tax on that. As a former His Majesty’s Revenue and Customs officer, I can guarantee that they are not paying a lot of tax on that. In truth, there is a quite terrifying level of lawlessness out there.

There is another thing worth noting with the current situation. We very much welcome the retail crime action plan, which is a good step forward, but we are a long way away from what it outlines. At present, the police do not turn up to 70% of the incidents that the Co-op reports. We only report serious incidents. We do not report someone nicking a ham sandwich and a can of Coke. We report the serious, prolific offenders, and 70% of the time the police do not turn up. More than that, when we use citizen’s arrest powers to detain the individual offender and call the police to complete the arrest, the police do not turn up on 80% of occasions, which means we have to let them go.

There is desperate need for a reset of society’s view of what happens in shops. If Parliament is going to give responsibility for upholding the law to individual groups—many of these offences are to do with age-related sales—it should give them protection for upholding the laws that it passes.

Q Paddy Lillis talked about the stand-alone offence in Scotland. You were a prominent campaigner for that. What assessment have you made of that, since its inception?

Paul Gerrard: I gave evidence to the Scottish equivalent of this, when Daniel Johnson MSP’s Protection of Workers (Retail and Age-restricted Good and Services) (Scotland) Bill was passed. Our sense is that it resulted in the police in Scotland taking incidents far more seriously. It is quite hard to come by data, but the data that I see tells me that for attendance at the scene when we report incidents, Police Scotland is one of the five best forces in the country.

Paddy referenced this: when a report is made of violence in stores in Scotland, the individual is arrested 60% of the time. England and Wales are nowhere close to that; here, it is penny numbers. I do not pretend that this is empirical, but our sense as a business is that the protection of workers Act in Scotland increased the importance of this for the police, and the police have responded. If we could get to the position of 60% of reported violent offences resulting in an arrest, my colleagues would be very grateful, as would Paddy’s members, and all the members of the British Retail Consortium.

Q It is a pleasure, as always, to serve under your chairmanship, Sir Graham. I have spoken with those on the witness panel quite a lot recently. For transparency’s sake, Paul and I have probably had five or maybe even 10 meetings in the last six months. Paddy, Helen and I met just yesterday to discuss this topic, together with the Under-Secretary of State for Business and Trade, my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake).

Helen Dickinson: It was like a practice for today.

Q Exactly, a dry run. I will just make it clear at the start that we in Government and policing take this recent rise in shoplifting very seriously, as you know. It is my view that we should have a zero-tolerance approach to this offence. It is causing £1 billion of stock a year to be lost, and there are unacceptable levels of assaults against retail workers. I just want to put on record our unequivocal commitment to taking a zero-tolerance approach to this.

You referenced the retail crime action plan. Paul, you just said that you thought that the stand-alone offence in Scotland got increased attention from the police. In law, assaulting a retail worker is illegal, and since the passage of the Police, Crime, Sentencing and Courts Act 2022, if the victim is a public-facing worker, that is statutorily an aggravating factor. You pointed to police attention as a benefit of introducing a separate offence. Just a couple of months ago, we all, except maybe Paddy, sat together at No. 10 Downing Street to launch the retail crime action plan. Do you agree that the commitments made in that plan, if operationalised—my expectation is that it will be, but we have to ensure that police do operationalise it—will deliver what you need, which is the police dealing with this comprehensively?

Paul Gerrard: We very much welcome that action plan. For a number of months, we have been calling for attendance at incidents involving violent repeat offenders. That is what the police have committed to. As you know, Minister, they are a long way from that; they are not attending 70% of serious incidents at present. I very much welcome the plan, and it is great that the police will turn up. I say that as a former law enforcement officer and Customs and Excise officer. When they do, they need the full tools available.

My strong view is that having a stand-alone offence will give the police, when they do turn up—I am with you; I really hope that they do—all the options they need. It will make it easier and quicker to investigate and prosecute the crime as a summary offence. I would also not underestimate, Minister, the power of Parliament saying that it is a specific offence to attack a shop worker. That will have an impact on three million shop workers, who frankly are not sure at present if Parliament cares what happens to them.

Q On that point, do you think that Parliament sent a signal by making it a statutory aggravating factor if the victim was a public-facing worker? That includes retail workers. Do you feel that was helpful in signalling to retail workers, but also criminals and the wider public, that assault is not acceptable, and we take it very seriously?

Paul Gerrard: When your predecessor introduced that, we welcomed it, though we said at the time that we would prefer a stand-alone offence. I remember being in a meeting —Paddy was there, as was Helen—with the then Home Secretary, the Attorney General and the Lord Chancellor, and we all welcomed it. The Home Secretary said that if the measure did not work, they would revisit the idea of a stand-alone offence.

Since that aggravated offence has come in, we have seen no discernible difference. I know that the Home Office cannot tell us how often the measure has been used—I am not sure whether it actually has been used—but I do not think that it has made a difference. It cannot be used when the police do not attend in the first place.

Q Yes, okay; I understand your point of view. On your point about the police not attending 80% of cases, I think you said, in which your security staff have detained an offender, that is completely unacceptable. You would presumably welcome the commitment in the retail crime action plan to police always attending if an offender has been detained on the scene, if attendance is necessary to secure evidence, or if a retail worker has been assaulted. Those are important commitments, are they not?

Paul Gerrard: They are hugely important commitments, and we said at the time—I said clearly on behalf of the Co-op—that we very much welcome the retail crime action plan. My point is that there is still a long way to go before that happens, and I know that you are aware of that. However, when police attend, they need the full toolkit, and one of those tools should be a stand-alone offence, because that makes it quicker and easier to prosecute the individual. It also sends a powerful message to 3 million shop workers in this country.

Q I understand the messaging point, but it would be no quicker to prosecute a stand-alone offence than common assault, actual bodily harm or grievous bodily harm. The process would be the same in all cases.

Paddy, perhaps I could turn to you to follow up on that point about tools. We discussed that a little yesterday, in our retail crime steering group meeting. One of the tools that both retailers and the police have at their disposal for identifying, arresting, and prosecuting offenders, and ultimately sending them to prison, is facial recognition. They can use it retrospectively, to catch offenders, and live, to identify prolific offenders who wander into a store. Do you want to share your views on the potential that that technology has to protect retail workers, and retail stores?

Paddy Lillis: Anything that protects retail workers and the product, and makes society better, I am in favour of. I am in favour of facial recognition, but it needs to be robust, because we already know that in some areas, it is seen as something that could bring racial bias, so we have to ensure that it is tight and robust to deal with that. As for anyone going into a store who is worried about facial recognition, if you go in to shoplift, or to assault a retail worker, then you should be worried about it, but if you are going in to carry out your day-to-day shopping, you should not have a problem with it. I welcome anything that helps the retail workers.

Coming back to what was said about a stand-alone offence, there is no real data tracking. Assaulting a public-facing worker was made an aggravated element that has to be considered by the courts, but it only has to be considered. Having assault of a retail worker as a stand-alone offence means that we can track the data, and track offences going through the court system. That is the benefit of the system in Scotland; more than 6,000 incidents have been investigated by the police, and we can track them through the courts.

This whole thing is about sending out the message to the criminal fraternity that we are all on the side of workers. They should be able to go to work free from fear of being abused, threatened or assaulted at work. This has been going on for too long, and this upsurge in violence and abuse is getting worse. I really urge you to look at this again. This is a win-win for every constituency in the country. You have an opportunity in this Bill to do this.

Q Thank you. On the point about data, we are looking at that separately from legislation. I accept that we need the data, as you say, Paddy.

Helen, we talked about the new commitment in the retail crime action plan on the police to always attend in the circumstances that I mentioned, in order to address the issues that Paul quite rightly pointed to. For the Committee’s benefit, can you talk a bit about the way that we—the Government, policing and the retail community, particularly the British Retail Consortium—can work together to make sure that the commitments in the action plan are delivered in practice?

Helen Dickinson: There are a couple of things that I would highlight. When we are in conversation with the police, they often talk about whether enough of the right information is being reported to them to enable them to act. One of the workstreams associated with the action plan is about ensuring that people right across retail are aware of what data needs to go into various police systems to enable them to respond as appropriate. There is activity on the retail side, with the support of the police, on that interaction.

The second point you are perhaps alluding to is this data question. Certainly, we have agreed to provide support in the interim period, so that data is collected on response rates. Paul is doing that from a Co-op point of view. The question is whether we can get a wider read. That impacts on this issue. We think a stand-alone offence is required because it really builds on the accountability and visibility that is required from a police resourcing point of view. I think you had various policing people here, talking to the Committee, in previous sittings. If police do not have visibility across forces on what is happening in local communities, they are not allocating resource to the right place and are not necessarily able to respond.

We can certainly help by building the data that will give us a snapshot of whether the commitments made by the police in the action plan are being fulfilled, but that is not a long-term solution that will give us the response rates required from the police to address what is becoming an epidemic across the country, and what we see on the frontline in our communities. When we spoke yesterday, you said you were worried. I think everybody here should be worried. What is happening in certain parts of the US is much worse than the UK, but we are at a real turning point. Will the trajectory be halted? Without police visibility, as well as industry visibility, of the scale of the problem, so that they can put the resource in the right place, we will not make progress on the problem.

You are looking at me, Minister; I have not answered your question. We are really keen to continue the very strong engagement that we have had with you over the past few months. I know that this is a cross-party point, and that everybody takes what is happening very seriously. We are very happy to continue to do that.

Q Thank you, Helen. We will certainly do that. We want a zero-tolerance approach, so that there is not an escalation, as there has been in America, caused or enabled by ultra-liberal policing policies. We want zero tolerance, and we will definitely work with you and the retail sector to ensure that the action plan is delivered, including by ensuring that the police can produce the right data. Thank you for your help in the meantime.

I have just one more question. On the issue of the stand-alone offence, which has come up again and again, we have talked about the data point, and there may be other ways of addressing it. One question that will come up as we debate this issue is that if we create a separate offence for retail workers—we already have a separate offence for assaulting emergency workers, of course—what do we say when the teaching unions say, “Can we have a separate offence of assaulting a teacher?”, the transport unions say, “Can we please have a separate offence of assaulting a bus or tube driver?”, or someone says, “Can we have a separate offence of assaulting someone under the age of 18?” A lot of groups have claims that are just as valid and strong as yours. Will we end up with 50 stand-alone offences—for teachers, bus drivers, train drivers and so on?

Helen Dickinson: That is a very valid question, but I would turn it around: if any of those other industries was saying, as we are today, “This is an epidemic on a very scary scale, and it is having a huge impact not just on the 3 million people who work in retail, but right across every single community that we live and work in,” and that epidemic was everywhere, that would be valid. However, we are saying that this is a unique situation. It is very specific to what is happening in the retail industry today, and that is why we think that you should focus on retail.

Paddy Lillis: There are about 1,000 incidents a day, and we think that that is just the tip of the iceberg, because most retail workers are not reporting them. They see them as part of their job. We are trying to get over that. If you are abused in any form at all, it should be reported, so that we get proper data. On a daily basis, there is the cost to industry of sick pay, mental health issues, injury—

Helen Dickinson: The cost of inflation.

Paddy Lillis: Absolutely. It really needs to be focused on. These are people performing a duty and serving the public, and if they are abused or assaulted in execution of their duty, they should have the protection of Parliament.

Paul Gerrard: I have two observations. I said before that I was a customs officer; I have done plenty of night shifts at Dover, and I have done shifts seizing cigarettes. I have never seen, even doing that job, the kind of abuse and violence that shop workers face. It is worth reflecting on just how unpleasant and lawless it is at times. I am not sure that other sectors can say quite the same, but it is for them to make the case.

My second point—I mentioned it before, but I will say it again—is that as legislators, you have asked these people to enforce the law, be it on age-related sales or social guidance during the pandemic. You ask them to enforce the law and put themselves at risk. The work that USDAW does demonstrates that very often violence follows enforcing the law. If you are to ask them to enforce the law, you must give them proper protection. That is the deal that I had always assumed was being made. I will not make a special case for retail workers, but if you are going to make them enforce the law, you should give them proper and special protection in the law for doing so.

Q We have done this already in the Police, Crime, Sentencing and Courts Act 2022. As I said earlier, we have made it a statutory aggravating factor if the victim of an assault is a public-facing worker, and that of course includes retail workers. Do you accept that that is special enhanced protection, because your sentence will be longer if you assault a retail worker?

Paul Gerrard: There are a couple of things there, Minister. First, I would say yes, although that provision is for all people in public-facing service. The difference here is that if my colleague decides to sell alcohol to someone they should not sell alcohol to, they will face a criminal sanction. This weekend, I was in Manchester, and one of my colleagues refused to sell cigarettes to a minor, who jumped behind the kiosk counter, attacked every single kiosk, and pushed, shoved and threatened staff. If they decided, “Actually, I do not want that to happen; I will just sell them the cigarettes,” they would be breaking the law. That is the difference.

I get the point about public service—as a former public servant, I think that is right—but if you are asking people to enforce the law, you should give them special protection in the law through a stand-alone offence, of the kind that I had when I was a customs officer. It is a stand-alone offence to attack a customs officer, because they are enforcing the law.

I will certainly continue to work with you all, regardless of the details in the Bill, to get the retail crime action plan fully implemented and bring into force a zero-tolerance approach. I think we all agree that that is necessary, and I will do everything possible to ensure that the police deliver that operationally. Thank you for your work in this area, and I look forward to keeping on working with you.

Q One of our witnesses on Tuesday—it has completely escaped my mind which one—said it was very important that retailers did their part of the job too in ensuring that shops were safe environments to work in and not easy to steal from. I want to give Helen and Paul in particular the right to reply on that, because I thought you might want to.

Helen Dickinson: I agree completely with that comment. The reason why over 90 chief executives signed the letter to the Home Secretary from right across different parts of retail was that they are concerned about the fact that they are doing all they can, but feel that there is nothing more they can do. Paddy mentioned some statistics.

How do I describe it? It has two big impacts: one is financial, on the bottom line, how the profit of companies will be impacted unless they do everything that they can to address what could impact their business; and the second impact is on their biggest asset, which is their people, whether that is in absenteeism, morale or motivation to do their job well. Those two motivating factors, from a business leader point of view, mean something to every single business leader that I talk to. Literally, that is probably the thing that comes up most in the chief executive conversations that I have, because they feel that they have done everything that they can and that they are running out of road in terms of things that they could do.

The Minister asked about facial recognition, and I know that that is being explored by a lot of people. There have been various announcements about body cameras. People pay money into business improvement districts and regional partnerships. We have the Pegasus Project, which is trying to get better co-ordination across different parts of the police, specifically focused on organised gangs. That is being funded by retail businesses. They are not handing it all back and going, “It’s someone else’s problem.”

That is my answer to whoever it was. I am very happy to put them in front of any retail business, and I am sure they will be given lot of reasons. Paul, I do not know if there is anything you want to add.

Paul Gerrard: The Co-op is one of the businesses that is funding Operation Pegasus. Over the past four or five years, we have spent £200 million on security measures in our stores. That is four times the sector average. If you go into some of our stores, you will see state-of-the-art CCTV, body-worn cameras and headsets. We have increased our guarding budget by almost 60% from pre-covid days. We are constantly investing. We have had a problem with kiosks, where people jump behind the kiosk counter, often armed, terrifying colleagues who are still in the kiosk. We have just invested heavily in new kiosks to stop people from doing that.

Helen is absolutely right: the retail sector takes this really seriously. We consider the first responsibility to be ours, which is why we invest as much as we do to keep colleagues and shops safe, but we are getting to the point with some stores in the Co-op estate and across retail where it is increasingly hard to work out how to run a store that keeps colleagues safe and can make a commercial return. That will mean that shops will close, and we all see what happens when shops close: communities face tough times.

I have heard the police express that idea that we are not doing anything. They have had a similar, less-than-polite response from me when they have said it, because it is patently untrue.

Paddy Lillis: It is 21st-century Britain, and we have retail workers with body cams on—it sounds like a war zone. At the time, we are trying to get things right and get people back into the towns and city centres, but we are helpless. It is a societal problem, something we all need to work towards addressing. We must put the support we need behind retail staff and businesses. I have worked with them. Security measures just last year cost £1 billion, with more and more going in, but somewhere along the line we all pay for that. It is a massive problem that has to be addressed.

Q I am interested in the answer that Helen gave to the Minister about why retail workers should be a special case. I wonder if you would speak a little more about that. My understanding is that attacks on teachers, doctors, leisure staff, pub staff or whatever have not increased in particular in recent times, whereas we have seen this tremendous surge not only in organised crime in shops, but in assaults on retail workers.

The reason why the Government—rightly—responded to proposed changes for emergency workers was that we had seen a huge increase in activity: attacks on vehicles, on people, and everything else associated with that. Helen, would you like to talk a little bit more about that, and just clarify that it is also your understanding that it has soared in the retail sector, whereas some of the other categories that the Minister referred to have, in fact, remained relatively static?

Helen Dickinson: I think Paul summed it up. I cannot comment on behalf of other industries, because I am not close to what might be happening. I engage a lot with my peer group across different sectors, and it does not come up in the same way as it does when engaging with my members.

Paddy Lillis: Retail is an easy target for people. It is an easy way to make money, as Paul outlined earlier. In today’s climate, as I said, there are three areas: the cost of living, addiction to alcohol and drugs, and now the criminal gang element. The retailers rightly told me that this is a golden quarter. It is a golden quarter as well for the criminal gangs, because they are in there robbing the shops under the cover of thousands of people shopping every day.

Paul Gerrard: If you were to ask people who have been in retail for decades, nobody would say they have seen anything like this, even during covid. No one has seen this scale of crime and the—often weaponised —violence and abuse that goes with that. It is out of control. We released CCTV footage earlier this summer, and it is like a riot trying to get into some of our stores, because people are intent on stealing and causing violence and abuse. I do not think anyone in retail—Paddy has been in and around retail for much longer than me—has seen it like this before.

Helen Dickinson: Businesses such as the Co-op—in convenience— have often been at the frontline, because there is that proof of age required when somebody is buying alcohol or cigarettes or whatever else it might be. He is seeing that escalation, but there are other sectors that would never have raised this as an issue now bringing it up as the most significant thing impacting their business. One of my members is a beauty business with only one or two staff members in its stores. It has the same organised gang turning up, week in week out, using abuse and violence to basically get the staff to step back so that they can literally just sweep the whole stock. A business like that is potentially going to shut up shop, because it is not worth it in terms of loss. I do not know if we have quite answered your question.

Q I think you have—I am quite content with that.

Paul, in your earlier evidence, you talked about the difference that you believe the change has made in Scotland. I think you said that there was a 60% arrest rate. I think it is probably in single figures south of the border. How much of that do you think is due to the law change, and how much is maybe a change in police policy, or the fact that police numbers have increased a little in Scotland?

Paul Gerrard: I am not sure I can talk to the latter point. I would say that in Scotland we see a police force that is taking it more seriously. Maybe they have more officers; I do not know. They take it more seriously. I think Daniel Johnson MSP’s Protection of Workers Act has sharpened minds and given a really strong message that the Scottish Parliament considers an attack against a shopworker to be a particular kind of crime. I said that there is a 60% arrest rate on reported violent incidents. We are absolutely nowhere near that in England, because they are not turning up enough to do that.

Helen Dickinson: The visibility of the tracking means that it prioritises the resource. That then increases the response rate, and it becomes self-fulfilling.

Q Even in England, we saw a huge cut in the number of police officers across the country since 2010. At least we are getting back to a point now where we actually have more police officers again. Do you think that is actually going to make a difference, and might it lead to more activity in shops—the retail world—than it might have done otherwise?

Helen Dickinson: Not without the measurement to be able to prioritise it.

Only to put on record that we actually have record police numbers now. It is not getting back towards the peak; the peak has been exceeded by about 3,500—

That is on the record. In that case, I thank the witnesses for their time and for their very open and full answers.

Examination of Witness

Clare Wade KC gave evidence.

Q We will now hear oral evidence from Clare Wade KC, the independent reviewer of domestic homicide sentencing. We have until 3.25 pm for this panel. Can you introduce yourself for the record, please?

Clare Wade: I am Clare Wade, a criminal barrister specialising in defence. I am a KC. I tend to specialise in domestic homicide, whether that is murder or manslaughter; increasingly, that is my practice. I have specialist experience in defending women in particular who kill their male abusive partners, but I also defend men who have killed their female partners, so I have quite a lot of experience in that. I was appointed as the independent reviewer for domestic homicide sentencing and wrote the domestic homicide sentencing review. I am here to answer any questions about my expertise on that.

Q Good afternoon, Clare. Thank you for being here today to give evidence, and for the tremendous work you do in this particular space. We have heard your name crop up time and again because of the work you have done, so we do appreciate that. We have seen a few changes to legislation in relation to the sentencing of those responsible for domestic homicide. How does the Bill do more in that space?

Clare Wade: Clause 24 encapsulates one of the recommendations in the review, building on the secondary legislative proposals to put into law the aggravating factor of killings at the end of a relationship. I have to say that it looks a little odd in the Bill because it is, as it were, stand-alone. The intent behind the policy is to have a coherent legislative policy that addresses all the harms, and addresses the particular harms in these cases. We now have in the secondary legislation the aggravating factor of coercive control as something that has happened in terms of the history of the relationship by a perpetrator towards a victim, and vice versa—it is a mitigating factor as well.

Obviously, these killings nearly always happen within the context or confines of domestic abuse and, in the cases we looked at, we found that there was frequently an escalation in domestic abuse when the victim—in the majority of cases, a woman who is killed by her male partner—wants to leave the relationship. That particular recommendation was made because not only is that a real harm, and that represents the real danger, but the policy underlying the other recommendations is one that places the concept of controlling and coercive behaviour at the forefront of the thinking.

The real harm in terms of coercive control, which the law does not yet recognise, is entrapment. It is not fear, as in being continually afraid, and it is not necessarily physical injury. It is entrapment, which is what prevents people who are being abused from leaving relationships. Putting that into legislation as an aggravating factor that can be taken into account by the courts would make it clear that that is one of the harms, but it would also, I suppose, bring to our consciousness the real harm in domestic abuse.

Of course, we are really only just getting to the stage where we understand what underpins domestic abuse—in my view, it is controlling and coercive behaviour, as I have explained it in the report I wrote.

Q That is very helpful. In our evidence on Tuesday, Nicole Jacobs, the Domestic Abuse Commissioner, spoke of your report. She welcomed the measures that were included in the Bill, but she went on to say that she lamented those recommendations that had been excluded and believed that your package of recommendations should have been taken as a whole. What do you think the Committee needs to add to the Bill to fully recognise the importance of your work and get this right?

Clare Wade: Two things, I suppose. It is important to look at the terms of reference that I was given when I was asked to conduct the review. Two issues presented themselves in terms of problem areas, as it were, in the law as it stands. One of them was an issue that had really precipitated the whole campaign. In our sentencing framework for murder, we have various stages by which we attribute the gravity and seriousness of the offence. One of those involves taking a weapon to the scene of a murder with the intention of using it, and then using it in committing the murder. There is a 25-year starting point in relation to that, whereas most domestic murders—and we found this to be the case in the cases we looked at—have a 15-year starting point.

One of the problems identified was: why was there that disparity between people who have taken a knife to the scene and been convicted for doing that, and people who may not have taken a weapon to the scene but have reached out and used a weapon? We found that the real harms in the way in which those offences are committed were nothing to do with taking a knife to the scene—that really was a red herring. The real harms that were being identified by secondary victims—the mothers of the women who had been killed—were things such as overkill. One of the things that struck me when I looked at the cases was something that Julie Devey said, which was: why is it that you can take a knife to the scene, stab somebody once in a single stab wound and face a starting point of 25 years for your minimum term, and you can stab somebody 79 times in their own kitchen with a knife and face a starting point of 15 years?

I was able to discern that one of the harms was something that we have called overkill, which has now been accepted as something that should be legislated on by the Government. However, I concluded on the overall package that the whole issue of taking a knife to the scene, the 25-year starting point and the disparity was a complete red herring, and that the issue of taking a knife to the scene will inevitably lead to anomalies—for example, you might have a man who kills his ex-partner, takes a weapon to the scene and is therefore eligible for a 25-year starting point, but in real terms of culpability it is no different to killing her in the home. The real issue was something else—other sorts of harms that pertained to these murders.

Therefore, the whole 25-year starting point should be disapplied when we are dealing with domestic murders. Nothing is lost by that. That has obviously been rejected, and there is now a further consultation on having a 25-year starting point or a higher starting point, but it is completely otiose in my view if you take into account the real harms that we have successfully identified and that the Government have taken on board. You will reach the same result in coming to the sentence, but you will reach it by identifying the real harms. That is one thing that I would say probably needs to be looked at again.

The other thing is strangulation. We looked at the killings in our sample—and obviously the literature, frontline responders and everything else—and strangulation is a gendered form of killing, in the sense that in all but one of the cases that we looked at in our sample, it was used as a method of killing a female, usually by an abusive male, within a context and a history of controlling and coercive behaviour. So I recommended that strangulation ought to be an aggravating factor, and that has been rejected. The argument, as I understand it, is that it places too much emphasis on the mode of killing, but it does that for a reason because it is a gendered form of killing.

The corollary is that the use of a weapon, which is not a statutory aggravating factor but is often seen as an aggravating factor, should in my view not be an aggravating factor necessarily. Women who kill men who abuse them always use a weapon, because it is not possible for them to commit a murder without doing so. So those two factors concern me. I am with Nicole on that.

Q That is pretty comprehensive. Can I ask you about clauses 23 and 24 and the aggravating factors in relation to grooming and the end of a relationship? Do those clauses go far enough?

Clare Wade: I will speak to clause 24 first, if I may. I think it probably does go far enough in terms of that point because it says “connected with” the end of the relationship, and that is sufficiently comprehensive. In terms of grooming, on the face of it, yes, I suppose. I am not sure if there is a definition. I am always perplexed by the lack of a legal definition of grooming. Even in the cases that I do, we all have an understanding of what it is, but I am not sure it is properly defined. I did not see anything, but I might have missed it. When we ask victims, “What do you understand by grooming?”, for example in the cases that we do, they say, “Somebody pretending to be your friend, but not being your friend and using you for sex.” It is not defined anywhere and it is such an important concept.

In many of the sexual offences, particularly historical sexual offences, grooming is now taken into account in directions to juries about consent. They are asked to consider whether consent was true consent, given the background of grooming. It is a massively important concept. It is floating around, but maybe not sufficiently nailed down—I don’t know. But yes—on the face of it, yes.

Q Clause 30 addresses assessing and managing the risks posed by the coercive behaviour of offenders. It refers to an “intimate or family relationship”. Do you think the wording of that clause is clear enough? We were just talking about clarity around grooming, and I agree with you there. Is the wording of clause 30 and the reference to “intimate or family relationship” too wide? Or do you think it is okay?

Clare Wade: I would have to consider it further, but I suspect it is probably all right. We are talking about the management of risk factors within that context. I imagine it is probably all right, as you are talking about convicted persons.

Q I am particularly interested in the “intimate relationship”, because that can take many different forms.

Clare Wade: “Intimate relationship”, certainly in the work that I do, would mean partner/ex-partner. I will turn that round—do you think that is too narrow?

Q Fair enough.

Clare Wade: I think it is probably right if we look at some of the definitions elsewhere, certainly in terms of the controlling and coercive behaviour that it brings into the management.

Q That is helpful; thank you. This is perhaps not your bag, but clauses 11 and 12 address the offence of encouraging and assisting serious self-harm by a victim. Would you hazard a comment on whether those clauses are fit for purpose?

Clare Wade: I was thinking about that in terms of some of the scenarios that present themselves in domestic abuse situations. As I recall, the mens rea for that is intentional, which means that it is not too broad. However, off the cuff, I would say that it certainly fits in with some of the cases that we see that result in the suicide of people who are trapped in relationships that they cannot escape—for whatever reason: whether a combination of mental health factors or entrapment. Therefore, I would probably support that. I do not know whether it needs to be narrowed down or not, but certainly, for more remote relationships, it is an important legislative provision.

Alex, I will let the Minister ask some questions for now, but there may be a moment to come back to you afterwards.

Q I just want to say that I thought that your review was absolutely excellent, and it has contributed in a really profound way to the way we talk about these issues in Government. Following the passage of the Domestic Abuse Act 2021, it has been probably the most critical piece of work that has been produced for the benefit of Ministers. I reread it before you came, and I was just so impressed by how comprehensive and detailed it was.

We all know that you are, of course, supportive of the clause 24 provision, which mirrors what you recommended, but I wanted to ask you about some of the things that you have just said. You said in your report that you found that coercive control underpins all domestic abuse. I think that you also made reference to the fact that there is now a consultation happening on minimum sentences in two regards. The first is in relation to whether any killing—any domestic homicide, to use your language—where there has been coercive control should attract a minimum sentence. I think that that goes a bit wider than anything that you put in your review. I will ask you about that first, and then I will go on to the second part.

Clare Wade: My view about setting minimum sentences in stone is quite strong. I am actually not a fan of minimum terms and starting points because I think that it takes away quite a lot of judicial discretion. Even though they are only starting points, we often get stuck with them. There is an argument that schedule 21 is probably not fit for purpose. As I say in the paper, it is frozen in 2003 and it comes with the problem that there is always this issue of, “Do we add another starting point in?” I think that the 25-year minimum terms has done nothing but cause problems.

Q Please correct me if I am wrong, but am I right in saying that that was a response to the Ben Kinsella case in 2008?

Clare Wade: Yes, it was.

Q I worked a bit with Carole Gould; I think that you referred to her when you gave the example of her daughter’s case. Would you also agree that, in a way, it served to obfuscate what we would wish to say about some of these killings, because it creates this artificial distinction with what I think are more like gang-related crimes?

Clare Wade: Yes, that is one of the problems, I think. There are two issues. First, it creates legal anomalies anyway, because once you delineate a starting point for something like that, you have all sorts of problems about, “When is it taking something to the scene?” and you then have laws saying that taking a knife to the doorstep is taking it to the scene but taking a knife to another room is not taking it to the scene. That just reduces confidence in the law, I think; it just causes anomalies.

Secondly, as it stands, it does not fit with the other sorts of categories of harm within schedule 21 because, as I say in the report, it does not consider the vulnerability of the victim. It has one harm at purpose. That has caused all sorts of issues in terms of an obvious disparity, and we identified that disparity in the review. There is a disparity of six and a half years on average.

So it causes problems, and yes, you are absolutely right: it obfuscates the real issues because, by looking at the cases that we have looked at, looking at the literature and looking at our experience and the experiences of frontline responders and so forth, we know that the real issues are about what is now being identified as overkill or gratuitous excessive violence. The real issues are about, “Why do we not have a proper forensic approach to domestic abuse?” We do not have that. The whole idea of placing controlling and coercive behaviour and the model that I have identified at the forefront of the thinking is to achieve a proper forensic approach. We will not have this woolly attitude and people saying, “That’s not proper abuse,” and basing stuff on myths and so forth.

Q I will not use up all the time. I could ask you a lot of questions, but I will ask you a couple on what you were saying about strangulation. You will recall that one area of your report, your conclusions at paragraphs 8.2 and 8.3, was about the “rough sex” manslaughter issue. You looked at more than 100 cases relevant to that, and you were dealing with the starting point. There were two issues really. There was the culpability categorisation that the judge had found in those cases. Am I right in saying that you thought a starting point was appropriate for cases of that nature?

Clare Wade: First of all, there were only two cases in the actual sample that came within the “rough sex” category: gross negligence manslaughter and unlawful act manslaughter. In one of those cases, culpability was levelled at category C, so around the middle, and in the other at category B, so higher culpability.

I said that those cases should always involve higher culpability, because the risks of some of the behaviour, in particular with strangulation—while that was not apparent in the cases that we looked at—are high. At the moment, the law distinguishes between “obvious” and “high”, and my view is that this is just a legal nicety when you are talking about strangling or choking somebody. All the experts will say—

Q It is automatically high risk, and it is not understood that way by judges.

Clare Wade: No, it is not. The court is always constrained in terms of section 36 applications and referrals. They are always constrained by what evidence was before the sentencing court. There was found to be this distinction between “obvious” and “high”, and I am not sure that can exist.

My view is that we need to look at everything, and look at society as a victim. We need to dismantle the cultural scaffolding that goes with some of this offending, if we are really going to tackle domestic homicide. There is such a resonance with other harms. Even the harm of overkill, which is about obliterating women’s bodies because of anger and the motivation to kill and so forth, is apparent in strangulation. It was very important to look at that.

Q I want to ask you one final question. The Ministry of Justice has written to the Sentencing Council about the culpability issue we have just been discussing. The Sentencing Council’s reply was that these cases should always be viewed as high culpability, but we know that they are not always. Are you able to comment on that? I would say that it is a source of tension at the moment.

Clare Wade: It is a source of tension. The Sentencing Council has also said that the cases are decided on their own facts. I would agree that a real tension is there. In only one of the cases that we looked at did the sentencing judge find that it was high culpability.

Q There are a number where they are viewed in the category below: category C.

Clare Wade: Yes, there was another one that was category C—given that there were two cases, 50% of them were category C.

The review is probably the first document that brings into consideration the current thinking of academics, campaigners, specialists and doctors. There has been a lot of research done, for example, by Dr Cath White on strangulation. It brings it all into play, and we are trying to have a coherent approach. The beauty—if I can call it that—of using the coercive control model, is that it gives us that. As I said before, ultimately we want a proper forensic approach to domestic abuse in criminal law.

My view is that that approach is lacking at the moment, and that is why we struggle. That is why there is seeming injustice, for example, when a minority of women kill their abusive partners. They do not always get justice, as some of the research shows. Only by having that proper forensic approach across the board will we be able to change things. That is important.

The other point is that the Sentencing Council is conducting its own review—I have not seen all the cases it looked at—and what applies to that applies to my review as well: sentencing comments in themselves are an imperfect way of measuring everything that underpins these cases.

Q Especially as the victim cannot give evidence.

Clare Wade: The victim cannot give evidence. If you are looking at sentencing comments, you are not looking at the evidence in the case. Take the two cases with which we started the review, those of Ellie Gould and, in particular, Poppy Devey Waterhouse—the review was initiated by the campaign on those cases. I was able to look at the prosecution case files and see that some of the factors we were able to identify in looking at the evidence were apparent in those cases.

In one of the cases, there was some stalking; in both cases, the killing happened at the end of the relationship where the victim wanted to leave the relationship; there was a little bit of violence. We found those factors, but they were not necessarily apparent from the sentencing remarks—one had to look at the papers through the coercive control prism to be able to identify them. Looking only at sentencing remarks is an imperfect way of looking at all these cases. That is why I welcome the Law Commission looking at the issue of defences.

Q I was grateful that you were able to comment on the issues around self-harm. The Bill also covers policing. Do you have a view on the way the Bill treats police-perpetrated domestic abuse issues, the specified offences in relation to gross misconduct, and the requirement of vetting? It may not be your bag.

Clare Wade: I would obviously welcome that. We have had some very high-profile cases where police officers have committed dreadful offences. Public confidence, particularly the confidence of women, needs to be restored in policing, so I would welcome that transparency.

I suppose there is an underlying cohesion in some of what we say. For example, one of the questions that we wanted to answer in the review is how domestic homicides sit and fit with misogynistic killings of women generally. I hope that by identifying the real harms and placing them at the forefront of the law, we are able to show that. That goes back to some of the things we were saying a moment ago, namely that strangulation is a particular harm. It is pertinent to domestic killings, as we identified in the review, but it is also something that happens in other misogynistic killings of women. It is important to not just be able to isolate domestic killings of women, but have a policy that encompasses the misogyny that underpins some of the awful offences we have seen in the last few years.

If there are no further questions, I thank the witness on behalf of the Committee. The Committee will meet again at 11.30 am on Thursday 11 January to commence line-by-line consideration of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Adjourned till Thursday 11 January at half-past Eleven o’clock.

Written evidence reported to the House

CJB 14 Professor Amy Chandler, School of Health in Social Science, University of Edinburgh

CJB 15 Dr Sarah Chaney, Queen Mary University of London

CJB 16 Dr Hazel Marzetti, suicide and suicide prevention researcher, University of Edinburgh

CJB 17 Centrepoint

CJB 18 Anthony Simons

CJB 19 Aurora New Dawn Ltd

CJB 20 McPin Foundation