Monday 28 January 2019
Offensive Weapons Bill
Committee (1st Day)
My Lords, I remind the Committee that, if there is a Division in the Chamber, we will adjourn for 10 minutes from the sound of the Division Bells. I also draw the Committee’s attention to the fact that, on the Marshalled List, there are explanatory statements to some of the amendments. These are included as part of a trial of their use and they have no procedural impact, lest anybody should be in any doubt.
Clause 1: Sale of corrosive products to persons under 18
1: Clause 1, page 1, line 4, at end insert “without, in the case of a person charged in England and Wales or Northern Ireland (subject to section 2), having taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence”
Member’s explanatory statement
This amendment, alongside the amendment to page 1, line 5, would make a failure to take precautions or exercise diligence criteria for the offence, as distinct from defences which would come into play only after the person had been charged.
My Lords, in moving Amendment 1, I will speak to the other amendments in the group in my name and that of my noble friend Lady Hamwee. These amendments seek to change the offences in the Bill from those where there is a reasonable excuse defence only when charged to ones where, if someone has a reasonable excuse, they do not commit an offence. They seek consistency in approach between legislation where no offence is committed if someone has an offensive weapon in a public place because they have a reasonable excuse and legislation where, in exactly the same circumstances, a person does commit an offence and has to rely on a defence only once they have been charged. The amendments also seek consistency between offences where the burden lies on the prosecution to disprove a reasonable excuse defence and offences where the burden lies on the accused to prove beyond reasonable doubt that they have a reasonable excuse.
We return to an issue that I raised in discussion of the Counter-Terrorism and Border Security Bill and which is applicable here; namely, creating offences where a completely innocent person commits an offence and has to rely on a defence once charged, rather than someone with a reasonable excuse for his actions not being guilty of an offence in the first place. In the context of the Counter-Terrorism and Border Security Bill, the Government acknowledged this problem in relation to the designated areas offence. In that Bill, the Government accepted that, rather than a person entering a designated area and having a defence once charged if they had good reason to be there, if they entered or remained in a designated area involuntarily or for a range of other reasons stipulated in the Bill, they did not commit an offence. The Government accepted that there could be legitimate reasons for visiting or remaining in a designated area and that it was more sensible to say that no offence was committed if they had good reason, rather than that they committed an offence but had a defence once charged.
In one part of the Counter-Terrorism and Border Security Bill, the person does not commit an offence if they had good reason yet, in another part, a person has a defence once charged—a different approach in different parts of the same Bill. It is still a Bill, I think, and has not yet received Royal Assent—I am getting nods from the back, so that is good.
In Clause 1 of this Bill, a person commits an offence if they sell a corrosive product to a person who is under the age of 18. They have a defence, if charged, by proving that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence, rather than it saying, “They do not commit an offence if they act reasonably”. In Clause 3, a person commits an offence if he delivers the corrosive product or arranges its delivery to residential premises. They too have a defence, if charged, if they prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence, rather than it saying that if they act reasonably, they do not commit an offence. There is also an issue with Clause 4, but it slipped through the net and therefore there is no amendment in this group to address it.
In Clause 6, however, a person commits an offence if they have a corrosive substance with them in a public place. It is a defensive charge if they prove that they had good reason or lawful authority for having the corrosive substance with them in a public place, rather than the provision being that if they had good reason or lawful authority, they do not commit an offence. It will perhaps be clearer if I concentrate on the latter of these three offences.
If a 19-year-old young man has a corrosive substance with them in a public place with the intention of using it to attack someone else, they commit an offence under the Prevention of Crime Act 1953 of having an offensive weapon with them in a public place with the intention of causing injury to someone. It is an intended offensive weapon. However, if they have been sent out by their mother to buy drain cleaner in a squeezable bottle to unblock the kitchen sink—I speak with some experience having recently cleared one of my drains; drain cleaner does come in squeezable bottles—they do not commit an offence under the 1953 Act. They have a corrosive liquid with them in a public place, in a squeezable bottle that could be used to cause injury to someone, but have a reasonable excuse for possessing it. Were the police to stop and search the youngster, a quick phone call to the mother could establish the reasonable excuse.
Under the Bill, the 19 year-old running the errand for his mother commits a criminal offence because, under Clause 6(1):
“A person commits an offence if they have a corrosive substance with them in a public place”.
Under Clause 6(2), it is a defence for the youngster charged with an offence under subsection (1) to,
“prove that they had good reason or lawful authority for having the corrosive substance with them in a public place”,
but a police officer would be justified in arresting the youngster, because he is clearly committing a criminal offence.
When discussing the Counter-Terrorism and Border Security Bill, we also debated the principle of necessity in relation to arrests. One of the circumstances included in the reasons why an arrest might be necessary under Section 110 of the Serious Organised Crime and Police Act 2005 is to allow,
“the prompt and effective investigation of the offence or of the conduct of the person in question”.
It would be quite easy for a police officer to reason that the quickest and easiest way to determine whether the young man has a blocked drain is to arrest him and take him to his home address, to see whether the kitchen sink is blocked.
I am sure that the Minister will say that of course the police will act reasonably, but the police do not always act reasonably. Believe me, from 30 years’ experience in the police service, including four years as a bobby on the beat, I can say that sometimes police officers look for any reason to arrest someone. For those who might argue that my experience is not current, I point out that if you own a drone, live within a short distance of Gatwick Airport and have suspicious neighbours, apparently you can end up being arrested even when you can easily prove that you were miles away at work at the time the offence was committed.
There is another anomaly. In the Counter-Terrorism and Border Security Bill, in offences that remain of the “defence when charged” type, the burden is on the prosecution to disprove the reasonable excuse defence put forward by the accused, and to do so beyond reasonable doubt. Section 118 of the Terrorism Act 2000 states:
“If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not”.
Indeed, in Clause 3(10) of this Bill we find a similar provision, except that it applies only in Scotland. South of the border, not only is it only a defence once charged—as in subsection (8)—but the person charged has to,
“prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”,
presumably beyond reasonable doubt. Noble Lords will recall that Section 118 of the Terrorism Act saved the Government from the accusation of reversing the burden of proof but, in these offences, the burden of proof is on the accused, presumably to the criminal standard of beyond reasonable doubt, that they have a reasonable excuse. Why is the burden of proof reversed in this Bill, except in Scotland, but not in the Counter-Terrorism and Border Security Bill, which passed through this House only recently?
Sending a message to the police that an offence is not committed if someone has lawful authority or reasonable excuse is preferable to saying that an offence is committed and that there is a defence once charged. Sending a message that you have nothing to fear by buying corrosive substances for illegitimate purposes and carrying the substance home through the streets or to a place of work is preferable to saying: “You are committing an offence and have to prove to a jury beyond reasonable doubt that you did so innocently”. The principle adopted in Section 1 of the Prevention of Crime Act 1953, which deals with offensive weapons, is that you are innocent if you have a reasonable excuse. That legislation has not been repealed, nor have the Government sought to amend it. That is the principle adopted by the Government in recent weeks in relation to an offence under the Counter-Terrorism and Border Security Bill, and it is the principle that the Government should adopt in this Bill. I beg to move—
Not being familiar with police procedures, to me the essence of the argument seems to be about when the defence is deployed. Can the noble Lord explain what that means in practical terms?
My Lords, when the police are told that the offence is not committed if somebody has a reasonable excuse, the clear message sent to them is that they need to investigate the matter there and then to establish whether that reasonable excuse exists. If a Bill, as in this case, says that somebody who carries a corrosive substance in a public place commits an offence, it sends a message to the police that investigation of any reasonable excuse that the person may have can wait until later because, according to the legislation, the defence is available only once the person has been charged.
My Lords, I support the Bill. The issue of the misuse of corrosive substances and all other kinds of offensive weapons is too obviously something that has to be addressed. However, I want to raise an issue which is troublesome in the context of the amendment.
Unless an offence is absolute—and we take a strong stand against absolute offences—it is a long-standing principle of criminal justice that you are liable to conviction and sentence, or to go back earlier, to be arrested and charged if you have done something or acted in a way prohibited by the law. Fine—but the proviso to that is, “Provided that simultaneously your state of mind was itself similarly criminal”. You may have done it intentionally or recklessly. There are all sorts of ways in which your state of mind can be identified as criminal but it is of the essence that these two concepts stand or fall together.
This statute asserts that, where certain facts are proved, you have committed an offence—full stop. Without reference to your state of mind or any other circumstance, the offence is established and you are therefore liable to be arrested. It then says, “We shall graciously allow that, in certain circumstances, you may have a defence”, and if you prove them you would have a defence. Perhaps the most gracious of all the circumstances is to be found in Clause 2(6) to (9), where a whole series of them have to be established. You then have a defence, but you have been arrested and may have been charged. Nobody has to examine these two concepts together and say, “The evidence shows that he had a guilty mind”, or “He was reckless”, or whatever it might be.
What I really want to raise in Committee is that we should stick to the normal principles that have worked well for us: you are not guilty of anything and have not committed an offence unless your mental state was simultaneously as criminal as the actions you committed. That is what we believe. I do not want to be overportentous; I cannot see the Minister making any concessions about this. However, I would like to put down a marker. This way of legislating for criminal justice is inappropriate and we should avoid it. We should certainly be very careful not to allow it to happen without us spotting it and stopping it.
My Lords, listening to the debate and the presentation of the amendment, I wonder how the amendments might protect the important relationships between young people and the police—maybe particularly between young people from ethnic minorities and the police. I can see that if the authorities have to do more work before they can detain a young person or take them to a police station, it might prevent trouble between the police and young people. My sense—and I am sure we will discuss this further on—is that one of the reasons young people carry knives is because they distrust the police and do not feel that authorities are there to protect them. The amendment may be helpful in engendering more confidence in the police—and indeed the authorities—among young people, particularly those from minority-ethnic communities, and help to make it less likely that young people will carry knives. I would be interested to hear the view of the noble Lord, Lord Paddick, on that, from his experience on the beat, if he has time towards the end of this discussion.
My Lords, the Opposition are generally in favour of this Bill, but I find the arguments of the noble Lord, Lord Paddick, somewhat persuasive. I particularly like the way the noble and learned Lord, Lord Judge, put things in the general perspective of law. Even little deviations from sound general principles are a bad thing, so I hope the Minister will not reject this out of hand but will ponder this set of amendments. The only area I am slightly unsure about—the noble Lord, Lord Paddick, or the Minister may want to address this—is the argument that the defence has to be proved beyond reasonable doubt. My understanding was that there was a general piece of law that said that defences have to be proved only on balance of probability. It is important to know which of those tests the defence has to meet.
My Lords, I thank noble Lords for their points and the noble Lord, Lord Paddick, for tabling these amendments. As he explained, they address the construction of the new offences relating to the sale of corrosive products to under-18s, the prohibition on sending corrosive products to residential premises when bought online and the possession of a corrosive substance in a public place. The noble Lord’s basic premise is that it is unjust that a person who took all reasonable precautions and exercised all due diligence to avoid committing the sale or delivery should be guilty of the offence, rather than having to rely on the permitted defence to establish his or her innocence. The same principled objection applies to the possession offence and the person who has a reasonable excuse for having a corrosive substance with them in a public place.
As the noble Lord, Lord Paddick, said, this has echoes of the recent debates we had on the Counter-Terrorism and Border Security Bill. However, as my noble friend Lord Howe indicated in that context, we are not persuaded that whichever way these offences are constructed will make much material difference to a suspect or how the police go about an investigation.
In relation to the sale offence and the offence of sending corrosive products to a residential premises, I think it is quite right that it should be for the seller to prove that they took reasonable precautions to avoid the commission of these offences. The seller will clearly know what checks they carried out to stop a sale to a person under the age of 18. In the shop context, they will know whether they asked the buyer in appropriate cases to verify their age, which will normally consist of asking them to produce a passport, a driving licence or an age proof card. In the online case, it is important that the seller has put in place some arrangement for checking the buyer’s age. Clearly where a seller has shown that they have verified age, no prosecution will take place.
In answer to the question asked by the noble and learned Lord, Lord Judge, about the normal principles of criminal law, the Bill reflects knife crime legalisation going back at least to the Criminal Justice Act 1988. His point about consistency is important, but I can point to other examples in other areas of law.
Going back to sellers, it is important that they take responsibility in this area and it is right that they have to prove what checks they have made rather than placing the burden on the prosecution. That is what happens in relation to other age-related sales, such as knives, alcohol and tobacco, and the approach is well understood by retailers, trading standards and the police.
Similarly, with the offence on arranging delivery to a residential premises or locker when a corrosive product is bought online, it should be for the seller to ensure that they are not sending the product to a residential address and to make sure they have the appropriate checks in place to stop this happening. The seller should be able to do this easily, and I can see no benefit in placing the burden on the prosecution to prove that the seller made the appropriate checks.
In the possession offence, as I have said before—for example, on the Counter-Terrorism and Border Security Bill—the police on the ground will use intelligence to decide whether someone may be in possession of a corrosive substance without good reason. They will not stop people coming out of B&Q with their cleaning products and question them, just as they do not stop people coming out of B&Q with garden shears and scissors. The police will use this power only where they have reasonable grounds for suspecting the person has a corrosive substance on them in a public place without good reason—for example, where a group of young people may be carrying a corrosive that has been decanted into another container. Establishing good reason on the street should be relatively easy. If a person can show they have just bought the cleaner and are taking it home to unblock their drains or that they are a plumber and need the substance as part of their work, good reason will have been established and no further action would be taken. It is only where a person cannot provide a good reason—for example, for why they have decanted the substance into another container that will make it more easily squirtable, or where they cannot say where they bought the substance or what they intend to use it for—that further action may be taken, and in this case it is quite right that the person should have to set out any good reason why they had the substance in a public place.
That aside, and returning to the point made by the noble and learned Lord, Lord Judge, it is important that we have consistency across similar offences. I have just explained the sale and possession of knives. We think that corrosives have the potential to be used as a weapon just as much as knives and that wherever possible the legislation dealing with the two should be consistent. Both corrosives and knives are widely available and have legitimate uses—they are not in and of themselves weapons—and to have a different approach for corrosives would suggest that they are somehow less of a threat as a weapon.
Retailers are familiar with the existing law relating to the sale of other age-related products and know what measures they need to put in place to ensure they comply with the law. It could be confusing to retailers if we now constructed these offences differently. The police are also familiar with the approach relating to possession and we are not aware that the good reason defence has caused any issues regarding possession of a bladed article in a public place.
On the question from the noble Lord, Lord Tunnicliffe, on the standard of proof, I can confirm that if a defence is raised, the defendant has only to prove that the defence is made out on the balance of probabilities. There was a question on Scotland: obviously it has a separate legal jurisdiction with its own sentencing framework. The Bill’s provisions work with the grain of the existing sentencing provisions. For example, the maximum penalty on summary conviction is 12 months in Scotland, but only six months in England and Wales. The same is true for the burden of proof, where the Bill reflects existing Scots law.
I appreciate noble Lords’ concerns but, as I said, the approach we have taken is to follow a well-precedented form for offences relating to other age-restricted goods. If we reconstructed the sales and delivery offences for corrosive products we would be creating a different legislative regime from other age-restricted products, such as for knives. I am therefore not persuaded that we need to change the construction of the new offences. With those words, I hope that the noble Lord, Lord Paddick, will be content to withdraw his amendment.
This might have been dealt with before and I apologise if it has, but is a farmhouse a residential address? Farmers would certainly receive all sorts of corrosive products.
It could of course technically be both.
So which is it for the purposes of the Bill?
Could I assist the Committee? We will return to the problems of not allowing corrosive substances to be delivered to any residential address in an upcoming group. It might be more appropriate to discuss that matter then, if that assists the noble Earl.
Thank you. Sorry, I had not noticed that.
Not at all.
I am very grateful to all noble Lords who have contributed to this short debate, particularly the noble and learned Lord, Lord Judge. It is interesting that the Minister seems to have ignored the inconsistency in approach between the Prevention of Crime Act 1953, the Criminal Justice Act 1988 and the Bill. In the Prevention of Crime Act, which is a piece of legislation specifically dealing with offensive weapons, you do not commit an offence if you have a reasonable excuse, which is inconsistent with the Criminal Justice Act and the Bill. The Minister says, “We worded it this way for things to be consistent”. It is not consistent.
On the point from the noble Earl, Lord Listowel, I do not want to get into the disproportionality of stop and search. What I would say is that I envisage certain circumstances where a 19-year-old young man who has a corrosive substance in their pocket, because that is the only thing they were sent out to the shop for, is stopped by the police very easily leading to arrest if the offence is worded in the way it is, whereas a police officer might be given cause to think twice if it were worded in the way I suggested it should be changed. The Minister and her officials are on slightly dodgy ground in suggesting to me what makes a practical difference to a police officer on the street or not about the way they implement the law.
That will give an indication that we are likely to return to this matter at the next stage. However, at this juncture, I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendment 2 not moved.
3: Clause 1, page 1, line 8, at end insert—
“( ) The defence in subsection (2) is satisfied if a person has complied with a process that has been certified as adequate by the police.”Member’s explanatory statement
This amendment would mean that complying with police certified processes would be a sufficient defence under subsection (2).
My Lords, I shall also speak to Amendments 13, 14 and 15 in this group. I do not put any particular weight on the drafting of these amendments. What concerns me is that we are putting a lot of weight in this Bill on the shoulders of people whose occupations we consider so lowly that we will not let them be the subject of apprenticeships. You cannot get an apprenticeship as a shop worker or as a delivery driver. There is no established pattern of training for these people, but we are putting them in a situation where something that they sold is used very quickly in a horrific crime and all the weight of the media and public opinion comes down on their shoulders as to whether they erred in their action or not. The whole machinery of justice is impelled towards convicting them because it wants some victim to compensate for the crime that has been committed. This is all too regular and humiliating, and we owe it to these people to put them in a situation where they can have a set of rules and know that if they follow this set of rules they will be safe.
It is not satisfactory to have that set of rules be just invented by the small shopkeeper who happens to employ them. There has to be some way in which their employers can establish that what they are doing is proof against whatever accusations might come their way. As the noble Lord, Lord Paddick, said, the burden of proof rests on their shoulders: they have to show that they did what was necessary to avoid the liability in this Bill. The other side of that coin is that we have to do what is necessary to enable them to do that and to enable them to be sure that they have done that. There are plenty of available recording devices around: you can take a picture of the document that you saw or the person himself, but then you are running straight into GDPR. We cannot start doing that without there being a clear set of permissions and expectations at the back of it. We want this to happen: we want a delivery driver, turning up on a wet Sunday and poking something through a gate that somebody might not see too well in the early morning light or in the evening, knowing that what they are doing is right and sufficient. I do not mind what it is, but we must do something. I beg to move.
My Lords, I support the amendments in this group in principle, but I will make one or two comments about them. First, there is an apparent contradiction between the pair of Amendments 3 and 13 on the one hand and the pair of Amendments 14 and 15 on the other. The first pair suggests that the police should design a scheme to ensure that corrosive substances are not delivered into the hands of those under 18. The second pair dictate to the police, at least in part, what that scheme should be. However, I understand the principle behind what the noble Lord is saying.
It is currently possible to order age-restricted products online and there are schemes in place designed to prevent age-restricted products being delivered to those under 18. Amazon’s instructions to the buyer say:
“By placing an order for one of these items you are declaring that you are 18 years of age or over. These items must be used responsibly and appropriately.
Delivery of age restricted items can only be delivered to the address on the shipping label, but this can include the reception of a commercial building. A signature of the recipient will be required upon delivery. Amazon adopts a ‘Challenge 25’ approach to delivery of age restricted products. Photo identification will be required if a person appears under 25, to prove that they are over 18 years old. An age restricted item can be delivered to another adult over the age of 18 at the same address. Delivery to a neighbour or nominated safe place location is not available for these items. If an adult over the age of 18 is not available at the address, or if an adult has not been able to show valid photo identification under the Challenge 25 approach, the item will be returned to Amazon”.
The acceptable photo identification is a passport or driving licence.
Would this scheme or something like it be sufficient to restrict the sale and delivery of corrosive substances—and knives for that matter—to those under 18, obviating the need for banning the delivery of such items to residential addresses?
My Lords, the noble Lord, Lord Lucas, is absolutely on the right lines. One of the troubles is knowing what is permissible and what is not. In speaking to the amendments in his name, I will suggest something which takes it a bit further. I declare an interest as chair of the Digital Policy Alliance, which, among other things, worked for several years on age verification for the Digital Economy Act. This Bill has exactly the same problem as Section 3 of that Act: what systems are adequate for proving the age of someone in an online sale? We worked on such systems and if noble Lords want to see that it can be done properly and securely I recommend they go to the web portal dpatechgateway.co.uk, where there are several to play with. The challenge is that there is no official certification scheme in place, but those systems are compliant with BSI publicly available specification 1296. I chaired the steering group that produced that standard and it had a lot of different people on it—people from the industry, academics, legislators, lawyers, et cetera. It shows that it can be done securely.
This goes one stage further than the suggestion from the noble Lord, Lord Lucas, that the police can certify. Here is a system that you could trust. The technology also enables it to be on a mobile, so you can do point-of-delivery verification. You have got the person there: you can compare them with the device. Amendment 13 goes some way to solving the quandary for a seller, but what is “adequate”? Someone in the industry has suggested to me that it might be better to insert a new paragraph (c) after line 22 saying that: “The Secretary of State may lay regulations as to which bodies are recognised to provide standards against which age-verification schemes can be assessed”. In that way, a certification system could be set up. The BBFC and DCMS have been struggling with this for some time. They are getting there, but there is a lot to be learned from the fallout from that which could be imported into this Bill. Giving the Secretary of State the power to say what schemes can be certified against would go a long way to making life far simpler. We are moving into an online age. We cannot do all this offline and we should not pretend we can.
My Lords, I will speak briefly in support of the amendments. The noble Lord, Lord Lucas, is right that we are in the hands of sellers and delivery drivers, who have quite a lot of responsibility. If they get this wrong, they could be convicted, go to prison and have a criminal record. I am not against the Bill—in general I support it—but it is reasonable for it to set out what people need to do to protect themselves. One way of going forward may be a police guidance scheme. Another would be requiring the delivery driver to take photographic evidence. This would be a very good thing to do, because it is important to protect the people who are doing this work. People do make unintentional mistakes. They need to know that the person at the door is the right age and can hand over documents as evidence, or that they have abided by a police-approved scheme to which their company has signed up. These amendments go a long way to ensure protection for the seller, as well as making sure that the items are handed to the right people who are entitled to buy them.
I am grateful to my noble friend for explaining these amendments, which deal with the evidence required to satisfy the defence if a seller is charged with selling or delivering a corrosive product to someone who is under the age of 18. As regards Amendment 3 to Clause 1, I understand my noble friend’s intention but I am doubtful that it is necessary or appropriate to require the police to certify a seller’s processes as adequate. There are already well-established and widely recognised age-restricted policies in place for retailers and sellers through Challenge 21 and Challenge 25. These policies are used day in and day out by retailers to deal with situations where an individual may appear to be under 18, particularly in relation to the sale of alcohol or tobacco. I have concerns about the value of asking the police to certify a seller’s processes and about the burden this would place on police forces. I am also concerned about whether this approach would undermine these established policies. Arguably this amendment would necessitate the police certifying the specific age-restriction policies of every individual seller of a corrosive product, whether a high-street store or an online marketplace. This not a valuable use of police time when we want them to be focused on preventing and tackling violence in our communities.
In any event, I am not persuaded that the police would be the appropriate agency to discharge this function. We must not forget the important role that trading standards plays and its expertise in this area. That said, I would have the same concerns about the resource implications for local authorities if they, rather than the police, were to be made responsible for certifying the systems put in place by all retailers of corrosive substances caught by the Bill.
The defence we have put in place for the Clause 1 offence is similar to that for the sale of knives to under-18s, and it seems right to have a seller prove that they took all reasonable precautions and exercised all due diligence to avoid committing the offence of selling to an under-18. Similar considerations apply to Amendment 13, which would again require the police to certify as adequate a seller’s system in preventing, in this case, the remote sale of a corrosive product to someone under 18. We have not specified an age-verification system in the legislation as there are various types of systems available and, as the noble Earl, Lord Erroll, pointed out, the technology behind such systems is continuing to develop at a fast pace. As a result, we did not want to prescribe a specific method or set a minimum standard for what these systems need to do, first, because we need to ensure that we future-proof the legislation, and secondly, because it is for sellers to determine the most appropriate system for their businesses to be able to demonstrate that they took all reasonable precautions and exercised due diligence to prevent the sale of a corrosive product to an under-18.
I see the point the Minister is making. She referred to various age-verification systems. I do not know whether we are going to have any guidance from the Government when this Bill becomes law. I want to ensure that these products are not sold to young people, but equally I want a system whereby I am confident that the person selling these items has had to reach quite a high bar to get this wrong so I am more confident that they have sold them deliberately. Will there be some sort of guidance saying that the Government would expect a seller to be in a scheme for age verification, so that if you are a courier company delivering products we would expect you to be in a scheme that does this and your driver would have professional training to know that, when he knocks on the door, he has to have done such and such? We need to make sure that we give the maximum amount of direction to people so we avoid these things getting into the wrong hands.
The noble Lord makes a perfectly practical point. We are aiming to produce guidance. We talked about shopkeepers the other day and the abuse of shopkeepers who are trying to abide by the law. I think some of the conversation we had with USDAW will prove very fruitful in developing our thinking on that.
Will you produce guidance along the lines of what I have suggested? Or are you not sure yet? Will you get to it later on?
We will produce guidance and I will of course take the noble Lord’s points into account. I cannot say whether supermarkets are currently part of the Challenge 21 or Challenge 25 scheme; I do not know the answer to that. However, in the production of guidance, you consult the various interested stakeholders to make sure that the guidance is as clear as it possibly can be.
With the greatest respect, you would expect some of the bigger companies to have systems in place. I am more concerned about smaller couriers and shops—one-man-band operations—which may not have anything in place. Being directed to sign up to a scheme would be good for everybody concerned.
In fact, I was thinking precisely of the small shop owner, who may not have the resource. If they could sign up or reference some sort of guidance that would be ideal. I was thinking along the same lines as the noble Lord.
Can I add something on that subject? I was not suggesting that the Secretary of State should specify specific company schemes, or whatever. However, I agree entirely that there should be a certification process so that people know whether they are okay or not. If there is not, there will be a massive test case in the courts, which will be very expensive for someone, to test what is adequate. The Secretary of State could avoid this by giving some direction on the regulations which reflects where you can change them, with changing technology, and which would satisfactorily protect the seller from vexatious things and awkward situations. The Government should look at this again.
I mentioned that, not long before coming into this debate, I—and no doubt other noble Lords—had a note from the British Retail Consortium. It also makes the point about how helpful it would be to have guidance—“possibly through guidance”, it says. Different situations may be different, but we are all concerned about not just protecting the seller but making sure that purchasers are able to purchase when it is reasonable to do so. I think it was my noble friend who mentioned John Lewis’s current policy on sending cutlery through the post.
The noble Earl, Lord Erroll, and the noble Baroness, Lady Hamwee, essentially come back to the point that the noble Lord, Lord Kennedy, made. Sellers want to make sure they are abiding by the law but, as the noble Baroness said, buyers want to make sure they are abiding by the law as well. On the systems that the noble Earl raised, I hope I did not suggest that he was trying to imply a specific system. I made the point that it would be wrong to specify a system in the legislation, given that systems are developing all the time.
To answer the point from the noble Earl, Lord Erroll, about age-restricted products, I have already mentioned knives, alcohol and tobacco, but lottery tickets are age-restricted as well, of course. Retailers are very used to operating in these systems, without a specific approved system in place.
This is a different type of retailer—hardware shops. You usually buy your lottery ticket from a different sort of place. I think we need to deal with these like for like.
The noble Lord is both right and wrong. A shop might sell a range of products that includes all these things—I am thinking of Tesco, for example—whereas a corner shop might be entirely different.
The amendments would place additional burdens on sellers and delivery firms or couriers beyond the conditions proposed in Clause 2 that would need to be met by any remote seller who is charged with an offence of selling a corrosive product to someone under 18 and wants to rely on the defence for remote sales. We have already prescribed a tight set of conditions on remote sellers if they want to rely on the defence in Clause 2. There is clearly a balance to be struck, but I am not sure that we want to go further and be more prescriptive by imposing a requirement for photographic evidence, albeit that some firms may well want to adopt such an approach.
As for obtaining and retaining photographic evidence that the corrosive product was only delivered into the hands of someone aged over 18, I would have concerns about the storage for an appropriate period of such photographs under the general data protection regulation. The person who received the package would of course need to give their consent to any photograph being taken. We also need to bear in mind that it might not necessarily be the seller making the delivery; it could be a third-party delivery firm or a courier. That would raise the question of how the photographic evidence was transferred to the seller for retention. There is also a concern that the seller would not be able to fulfil the conditions set out for condition C in Clause 2 if the delivery firm or courier delivering the package failed to take and send the photographic evidence to the seller. The seller would not be able to demonstrate that they had taken all reasonable precautions and exercised all due diligence to ensure that, when finally delivered, the package was handed over to someone over 18. I accept that these difficulties are not insurmountable, but they demonstrate the drawback of imposing a level of regulation beyond what is arguably necessary.
I reassure noble Lords that we will work with retailers, the police and trading standards on implementation of the measures relating to the sale and delivery of corrosive products to ensure that those measures are adequate. As I said, we will want to produce guidance to ensure that retailers and sellers know what steps they can take to ensure that they comply with the law. I hope that, with those explanations, the noble Lord will be happy to withdraw his amendment.
Could I just come back to the issue of getting people to provide information? I understand the point that the noble Baroness makes about the GDPR, but we want the person who is knocking on the door to take all reasonable steps to know who the person answering the door is. Age can be quite deceptive. I had to go to the Co-op last night to get a package. I had my passport and my driving licence and I had to put in a PIN, just to pick up a jacket. These days, people often buy things that come in the post or have to be picked up from the post office or elsewhere, so giving identification is not a big issue now. If you are not doing anything wrong, why would you not provide that information anyway?
I think that the noble Lord was referring to the taking and retention of photographs, which is slightly different, and we need to acknowledge the distinction.
My Lords, I am grateful to the Minister for saying that there will be guidance. Perhaps we might drop that into the Bill on Report, just to make sure. I think that guidance would be enough, but we should recognise that we have chosen to put into the Bill the words “all due diligence” and “all reasonable precautions”. That is a very high test. If we had meant the current systems to apply, we should have left out the word “all”. Nobody gets killed by being sold a lottery ticket—or at least not just one—but we are looking here at things that might quite quickly turn into serious criminal incidents. If in court someone says, “I looked at his passport”, but the police prove that the person in question has no passport, the poor delivery driver or shop worker is sunk. Noble Lords might remember a rather amusing TV ad from when we watched such things, “We’re with the Woolwich”, where somebody showed their Woolwich passbook to get out of East Germany. This passport or driving licence can presumably be of any nationality. How is a relatively untrained shop worker or delivery driver supposed to know that this is a Polish passport, not a Polish bankbook? We are asking people for whom there is no structured training to act as if they are trained. Under such circumstances we have to—
The noble Lord has made a very interesting point about the phrase “all reasonable precautions” and “all due diligence”. I do not know whether the noble and learned Lord can help the Committee, but that looks like a normal phrase. I did not read it in quite the same way as having to take every possible step that might be a reasonable precaution. I wonder whether the officials might help us as to the provenance of the phrase before Report.
If I might say so, “all” means “every”. Without “all”, you have just to take reasonable precautions and show due diligence. Once you put “all” in, you fall foul of any particular point you could have but did not look at and did not do.
This is something we talked about earlier. If we are to put “all” in, it is not unreasonable to have some sort of guidance in the Bill to protect people, otherwise people are just left hanging.
Would it help the Committee to suggest that the Government have put in Clause 4 exactly the sort of things the delivery courier should be looking at to take reasonable precautions?
My Lords, that is where the guidance comes in. All roads are leading back to the guidance. I hope I can leave it there.
My Lords, it was those sorts of concerns that led to me think of taking photographs, because taking a photograph of a document is a reasonable precaution. If you have not done it, you have not taken all reasonable precautions. Yet if you take a photograph you get into all sorts of complications because it is not required, so you are into GDPR in all sorts of interesting ways. Guidance therefore becomes very important and we ought to drop the requirement for guidance into the Bill. I am very grateful to my noble friend for her help on this and I beg leave to withdraw my amendment.
Amendment 3 withdrawn.
4: Clause 1, page 2, line 9, leave out “imprisonment for a term not exceeding 51 weeks” and insert “a community sentence”
Member’s explanatory statement
This amendment would replace the custodial sentences for the new offence in Clause 1 (sale of corrosive products to persons under 18) with community sentences.
My Lords, in moving Amendment 4 I will speak to Amendments 5, 6, 7, 20 and 21. This is not the first time that the Liberal Democrats has made clear our opposition to short custodial sentences, which, in our view, tend not to do good and too often cause harm. We are grateful to the Standing Committee for Youth Justice and the Prison Reform Trust in particular, as well as other organisations for helping me to articulate this. These amendments and some later ones repeat amendments that my right honourable friend Sir Ed Davey tabled in the House of Commons. We have thrown in some additional references because this is the scrutinising House. I heard a noise of agreement from behind me and it is clear that the noble Lord, Lord Ramsbotham, is on the same page on this.
A good deal was said at Second Reading on the complexity of what lies behind the carrying and use of weapons, and the context of that. Many noble Lords took what we regard as a necessarily broad view of the issues, expressly or implicitly criticising the use of legislation to send a rather broader message than the message to the police, to which my noble friend Lord Paddick referred. The Government recognise this, but not consistently. At Second Reading, I mentioned the Justice Secretary’s apparent opposition to short custodial sentences and his support for community sentences, which the Ministry of Justice’s own research shows are more effective at reducing offending. Surely that view counts. It is not so very long ago that home affairs and justice were in a single department, which was very unwieldly, but I hope that attitudes and values have not diverged to any extent.
This Bill has been described as punitive, along with the comment that it is contradictory to much of the Serious Violence Strategy and the need for resources for intervention and prevention measures. Community sentences are not an easy option: they require a lot of engagement on the part of the offender and an active response to the sanctions, not the passive response that one might find in custody.
Amendment 4 would amend Clause 1, which makes it an offence to sell a corrosive product to under-18s. Much of the Bill is about children but this amendment is about all who make the sale, as with Amendments 5, 6 and 7. The amendments would substitute community sentences for the short sentences provided by Clause 1. In our view, it is not an answer that the alternatives available are fines because of the effects of custody, to which I have referred. I do not want to make a Second Reading speech all over again. What will have positive effects is not an introduction to criminality created by custody, but we should look to fines—perhaps quite hefty fines—and the very fact that the individual who is convicted will have a criminal record, which will not help his employment prospects.
Amendment 6 would provide one specific condition which we suggest might be imposed: prohibiting the offender from selling corrosive products in the future. It is not, as I understand it, that it is necessary to spell that out but we want to make it clear that we would regard this as an appropriate way for the punishment to fit the crime and be a deterrent. As I said, community orders can be very tough and, in this case, that prohibition might be extremely tough.
Amendments 20 and 21 would similarly substitute community sentences for the short terms of imprisonment provided by Clause 3, which is about the delivery to residential premises. We will come to the substance of Clause 3 and what residential premises are and so on—I am looking at the noble Earl—but our view on sanctions applies, and this is the place to make it. I beg to move.
My Lords, I have added my name to Amendments 4 and 5, and I will also speak to the other amendments in this group. I looked in vain for Amendment 19 on the Marshalled List and the order of groupings today but I noticed that it is not there. As 19 comes before 20 and 21, I would like to speak to that as well because it also mentions custodial sentences—
It was in group 1.
I am sorry. I mentioned at Second Reading that I was astonished that the Bill should bring forward the Home Secretary’s apparent desire to increase the number of mandatory short sentences while the Ministry of Justice and its Secretary of State, followed by the Prisons Minister last Saturday in the Daily Telegraph, oppose the mandatory short sentences because they were so ineffective. I would have thought that that ought to have been sorted out between the two Cabinet Ministers before the Bill was brought to the House.
When I was Chief Inspector of Prisons, I learned of the Scandinavian system, which gave to the sentencer prospectuses of what could be done with and for a prisoner. The sentencer took that into account in awarding the length of sentence and ordered that certain courses or programmes were to be completed by the prisoner so as they could rehabilitate him or herself. If the prisoner completed the mandatory parts of the sentence laid down by the sentencer, the governor of the prison could take the prisoner back to the sentencer and, because the prisoner has jumped through all the hoops that were set, ask that they please be released. That was a factor in reducing overcrowding in Scandinavian prisons.
What worries me is that our overcrowded and understaffed prisons are finding difficulty enough in producing programmes for longer-term prisoners. But they can do nothing whatever for short-sentence prisoners and therefore there is no purpose in people going to those prisons, because they will get absolutely nothing. If you expect that the purpose of the sentence is to rehabilitate, that will not happen in our present prison system. Staff shortages, for example, mean that there are not enough staff to escort people to programmes that they are meant to be attend. So even if a programme was laid down, it is unlikely that it would be completed.
I admit that community sentences need to be improved. In preparation for this debate, last week I visited the Wandsworth probation programme and asked staff what they could do with and for people accused of violent offences. They said that, at the moment, they could do absolutely nothing because they did not have the wherewithal. However, there is no doubt that, if they were given the wherewithal, they could devise a meaningful sentence that would gather credibility in the community.
I also spoke to the Justice Secretary last Thursday and mentioned that there was apparent disagreement between him and the Home Secretary. Personally, I am on his side, because I saw the effect of short sentencing in prisons and saw people coming out having got nothing. That does little to increase the reputation of the justice system in the community, and it can ill afford to lose any more of its reputation in the country.
I notice that, in her foreword to the Serious Violence Strategy, the then Home Secretary said two things. The first is this:
“The … Strategy represents a very significant programme of work involving a range of Government Departments and partners, in the public, voluntary and private sectors”.
That may be, but we have not as yet seen any evidence of this partnership working. At Second Reading, we talked a lot about a public health approach. I do not think that that approach has had time to bed in. The second thing she said was that:
“The strategy supports a new balance between prevention and effective law enforcement”.
Prevention has not yet been tried, and to lay down mandatory short sentences is imposing law enforcement on prevention and damaging the hopes that prevention may bed in and achieve something.
My Lords, listening to the debate on this amendment makes me feel very nervous. As someone who has been a victim of crime by a gang of youths, and as the community champion when I came to this place, my worry is that there is an argument about short-term sentences, because of the process a prisoner goes through. I have gone into prisons and youth offender schemes, so I have done my homework and have worked with them a lot. My nervousness is because, while this is about short imprisonment, imprisonment is effective for people for whom a community sentence does not carry that weight.
Going around the country and speaking to communities, I find they do not feel that their voice is being listened to when someone is given a community sentence. The noble Lord, Lord Ramsbotham, quite rightly said that we need to have quality community sentences. At the moment, we have painting fences and gardening while wearing visors. I am conscious about how we shift this pattern of our community sentences and what they are worth.
In addition, there is kudos in this in the gangs that we deal with. When there were ASBOs, it was cool to have an ASBO. I am conscious that we need to look at short sentences and at the messages we are sending to the community and to the gangs, who can hold one sentence against the other. If the Government are going to go that way, I would like quality community services.
I have been out with youth offender trainers. They are short-staffed and underresourced. The intelligence I had from young people who were going into gangs was that they were not bothered whether they were going to prison or doing community service. They had no idea of what they were in trouble for. That is where the serious violence strategy needs to be better—it is about the two together. I am very nervous about community sentences. Can we have further discussions about them? They are part of the essential message we are sending to youngsters and to communities that are suffering and are scared to come forward because their lives are being threatened.
My Lords, I support these amendments. I recognise how important it is for the Government to make a robust response to public concerns about knife crime and the use of corrosive substances—the Victims’ Commissioner has just reiterated that. One must bear in mind the huge cost of sending people to prison. I would be very grateful if, in her reply, the Minister could give some idea of how much a short prison sentence costs compared to community provision. We have just heard that there is insufficient investment in high-quality community provision. The difficulty is that, when one starts ramping up the prison population, one has to spend more and more on an expensive provision which is ineffective. It is perhaps a difficult communications job for the Government, but the best way of protecting the public from these kinds of crimes is to invest in high-quality community provision, community support officers and police on the ground so that people can see them in their communities.
We are facing an uncertain future as a country. We recognise the limitations on our resources. If we start increasing the number of people being placed in prison, as we have done in the past, we perhaps do not have the money to do both, and we will not be able to make the most effective provision. For instance, we are not talking about children in this amendment, but I think I am right in saying that 68% of children who serve a short prison sentence will commit a crime within a year of being in prison, whereas 58% of those placed in community intervention will do so. That statistic takes into account the gravity of the crime.
There is scientific evidence that community interventions are more effective than prison sentences, at least for children. In seeking to reassure the public, we risk spending a lot more money on something which is relatively ineffective and not putting resources in an area where they are demonstrated to be effective. It is a difficult job, because the Government also have a role to reassure the public. If the public really believe that prison sentences are the only way to respond to this, we are in a difficult position. I think the public can be persuaded that we should not put money into expensive things which are not effective.
I would also like to talk about prison officers. Last year, I visited a prison for young men: a prison officer had been attacked the previous night. Prison officers’ morale is at a great low; it has been challenging for them for many years. The more burden we put on them through increased numbers, the more difficult it is for them to recover. When I visited, the governor and the prison officers saw a chink of light. They saw increased investment in the prison service and, particularly, the possibility of officers returning to the key person role. If you want to manage behaviour in prisons and turn young adults’ lives around, prison officers need to make a relationship with them.
I have an issue with the cost of putting extra money into prisons. The communities that I am involved in, and see on a daily basis, are not nice rural villages. On a daily basis, they are being told the absolute opposite of what the noble Earl is saying. Investing more in communities—to get their trust in services—will give them confidence and will nurture our society.
I have been in prisons and I am not saying they are not horrendous. One young offender who had been in a riot said to me: “It’s minging in here”, but he still could not grasp what he had done. He was a first-time offender and his solicitor had said: “Don’t worry, son, it’s your first offence”. I have an issue with giving this line to young people. I also have an issue with governors. I have seen good services, such as training young prisoners in the skills to get involved in optician work for children abroad. But when another governor comes in, he completely whitewashes everything and wants his own blueprint. That happens everywhere.
If it is about money, we need to look further at what we can do. We also need to look at what we are trying to achieve by not sending people to prison. I have an issue with money because our prisons would not be full if you invested it well. Communities need to feel safe and, at the moment, they do not. They feel that what they hear and say are worthless.
I thank the noble Baroness for her intervention. I think we are saying the same thing: we need to put the money where it can be effective. We can put money into the community in many different ways, including increasing the number of community support officers or police officers on the beat. In particular, young men—so many of whom are growing up without fathers in the home—need to find mentors they can identify with and so begin to turn their lives around, as I have seen so often myself. Those services are effective, but they are easily cut. I am concerned that, in progressing with short prison sentences, we are actually throwing money down the drain. However, I see that the Government are in a difficult position. They need to be seen to be making a robust response to something that so many people are afraid of.
I support the words of my noble friend Lady Newlove. Much of what the Committee has heard this afternoon about corrosive substances has referred to the appalling use of them by young people. Statistics on this are more difficult to find than on some of the other offences that we will be discussing later. I have serious concerns about the connection with drugs. The threat of acid attack is regularly used on young people involved in county lines.
One thing we have not mentioned this afternoon is the terrible situation of violence against individuals in domestic abuse situations, which is less frequent and not often reported. Surely short-term sentences will not deal with that. This is not the same as the pressures on young people to conform to gangs and so on. This is something quite different and I would like to think that there are very serious responses to that in our system.
If I could assist the Committee at this stage, these amendments relate to the offences of selling and delivering to young people, not to the possession of corrosive substances by young people. We are talking about sending the owner of the corner shop or the Amazon delivery man to prison for delivering these substances into the hands of people who are under 18. I want to ensure that noble Lords are aware that that is what we are talking about in this group of amendments.
My Lords, I am grateful to the noble Lord, Lord Paddick. Views have been expressed here which I respect but do not share. The seller will be, or is likely to be, an adult, and certainly will not be a vulnerable child. The purchaser, or the person to whom the product is sold, may be a very young child. It may be a 17 year-old who lives in an area where there is an awful lot of violence and who has a bad record which is known to the seller. We have to be careful. I am implacably opposed to minimum terms—we may come to that at some stage—because minimum terms do not do justice. However, a person who sells to a vulnerable child, or to somebody who leads a gang or who has been given a community sentence first time round, with a condition that he is prohibited from selling corrosive products but continues to do so, merits a prison sentence as punishment. Prison is not just about rehabilitation. Short sentences do not do much good; indeed, the evidence suggests that some of them do a lot of harm. However, some short sentences do some good because they punish the offender. Therefore, I cannot support these amendments.
My Lords, as you heard, Amendments 4, 5, 20 and 21 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, seek to replace the punishment that a person is liable to get on conviction, as set out in the Bill, with a community sentence. Amendments 6 and 7 allow conditions to be added to prohibit offenders from selling corrosive substances.
I am very sympathetic to these amendments. We have heard about the debate that is going on in Government at the moment between the justice department and the Home Office on sentencing policy. Generally, as we have heard, short-term sentences are not the right thing to do; they can be expensive and counterproductive, and they are not long enough to deal with a person’s issues. They can actually do more harm than good: the person can lose their job, home and family and then of course they have to go back out into the community. These amendments concern the delivery driver and the owner of the corner shop—the person who sold the products—not the young person who may want to commit other offences.
I agree with the noble and learned Lord, Lord Judge. Magistrates have the ability to look at the case in detail and decide on the best punishment. It could be that, for a second or third offence, prison might be the right place to put this person, because they will not listen. Equally, I want to make sure that the magistrates deciding these cases have that ability because they will know whether the offence merits a community sentence. I want to hear that a suite of punishments is available to the court and not have it driven down that they must impose a mandatory sentence. On that basis, although I have some sympathy with the amendments as they are, I want a much broader suite that enables the court to look at the evidence before it and make a sentence that it believes is appropriate.
I thank the noble Lord, Lord Paddick, for tabling these amendments and the noble Baroness, Lady Hamwee, for speaking to them, as it provides us with the opportunity to debate the appropriateness of the penalties we are proposing for anyone found guilty of selling a corrosive product to someone aged under 18 or for arranging the delivery of a corrosive product to residential premises or a locker. I am not persuaded of the case for replacing custodial sentences of up to six months for the sale and delivery offences with community sentences. The noble and learned Lord, Lord Judge, very articulately outlined why they might be necessary for some, but not all, offences. Let me explain my reasons for this.
We need to consider the significant harm corrosive products can cause if they are misused as a weapon to attack someone. My noble friend Lady Eaton pointed out one such circumstance in which this might happen: domestic abuse settings. The effects can be significant and life-changing for a victim, leaving them with permanent injuries, not to mention causing serious psychological harm. But it is important to be clear that in providing this maximum custodial penalty we are providing the courts with a range of penalties, from custody through to a fine or both. That gives the courts the option to impose a community sentence if that is most suitable, taking into account all the circumstances of the offence and, of course, of the offender.
There is also the requirement under the Criminal Justice Act 2003 that the court has to be satisfied that the offence is so serious that only a custodial sentence can be justified, so we can have every confidence that our courts will be sentencing offenders appropriately. Where a custodial sentence is justified they will impose it, but where a community order would be better for punishment and rehabilitation while protecting the public nothing in our provisions prevents it. There is also the broader legal framework to consider and the novel problems of a maximum penalty being a community order.
I must point out to noble Lords that, under Section 150A of the Criminal Justice Act 2003, a community sentence can be imposed only where the offence is punishable by a prison sentence. That is an important point to note. Even if it were possible to change the maximum penalties we are proposing, it would raise the problem that if someone wilfully breached their community order, then, as the law stands, it would not be possible to sentence them to custody. The courts would be able only to re-impose another community sentence. As a result, it is important that custodial sentences are available to the courts as one of the penalties available for anyone convicted of the sales offence. Such an approach is also consistent with the range of penalties available to the courts for anyone who has been convicted of selling a knife or bladed article to a person under the age of 18.
It was very clear from the debates in the House of Commons that we should treat the threat of violence from corrosives as seriously as that from knives. We have therefore tried to ensure that the offences relating to corrosives mirror those for knives wherever possible, as we discussed. I note that this approach was strongly supported by the Opposition during the detailed consideration of the Bill in Commons Committee. These amendments would undermine that approach, and would in effect be saying that selling a corrosive product to someone under the age of 18 was less serious than selling a bladed article to a person under the age 18.
I add that, as with other age-restricted products, in many cases it is the company selling the product or arranging for its delivery that would be prosecuted. Although the person at the checkout desk is sometimes prosecuted, it is more likely the case that it will be the company operating the store, because it will be responsible for ensuring that procedures and training are in place to avoid commission of the offence. This goes back to the guidance point made by the noble Lord, Lord Kennedy. Where it is a company that is being prosecuted, the sentence is likely to be a fine rather than a custodial or community sentence, but if an individual is prosecuted, the full range of penalties should be available.
The noble Lord, Lord Paddick, together with other noble Lords, have argued that short sentences of up to six months are ineffectual at rehabilitation and have prayed in aid recent comments by the Prisons Minister. Noble Lords have, of course, mentioned that the Justice Secretary and the Prisons Minister are looking at the question of short sentences and the use of prisons in the round. This will build on the existing evidence about the effectiveness of community sentences in reducing reoffending. A number of noble Lords talked about the various suggestions for community support in reducing reoffending. It is a very interesting discussion, although probably not for today. I want to emphasise that custodial sentences should be seen as a last resort and if noble Lords will refer to Clause 8(1), it very much articulates that. However, they are appropriate in some cases, and offenders with complex needs, such as female offenders, should be dealt with in the community wherever possible.
The noble Lord, Lord Ramsbotham, asked what the MoJ was doing to regain the confidence of the judiciary on community sentencing. We are finalising a series of changes to the structure and the content of probation services to make the system simpler, resilient and able to focus on getting the basics right. We particularly want to improve the quality of rehabilitative support offered by probation in the community. Noble Lords contributed on that today. We hope that our changes will ensure that a wider range of programmes are available so that courts can better tailor community sentences to the individual needs of offenders. We want to improve the information that judges and magistrates get from probation services on the community sentences that they deliver. We have re-established the National Sentencer and Probation Forum to facilitate the engagement and discussion of issues between sentencers, probation providers and other stakeholders.
The noble Earl, Lord Listowel, talked about the cost of short prison sentences. It is roughly £25,000 a year, but, of course, community sentences come with a cost to the probation service too. I think that follows. We should not set an arbitrary target for prison population reduction, and certainly not one that is driven purely by cost, although I do not think that the noble Earl was trying to suggest that. There is no doubt that sentencing must match the severity of a crime, and prison must always be available for the most serious offending. It is always so good to hear from my noble friend Lady Newlove because she speaks, sadly, from first-hand experience. I would be happy not just to meet her but to discuss some of her experiences. I know that she will be a very valuable voice on this Bill. We must be very careful—she made this point—not to send a signal in this Bill that the use of corrosives as an offensive weapon is somehow seen as less serious than the use of knives.
I understand the concerns about the use of short custodial sentences, and I hope that the debate has been helpful in contributing to the ongoing conversation on the use of custody. However, it is important that we do all we can to prevent the sale of harmful corrosive products to under-18s, given the significant harm and injury that such products can cause if misused.
Amendment 6 seeks to add to the sentencing options available to the courts a community sentence that bars the offender from selling corrosive substances. That is an interesting suggestion, but we do not think that it is necessary or appropriate to amend the community sentence framework in that way. The purpose of such an order would not presumably be for punishment or rehabilitation; it would be purely a preventive measure and it would be more appropriate to use a preventive power if the court thought that such a ban was necessary. That said, given the point I made earlier, it is difficult to see how this would work where a major retailer is prosecuted. It would arguably not be proportionate to say that a B&Q store, for example—or indeed the whole company—could not sell any corrosive products for a period of time. The aim of Clause 1 is not to stop the sale of corrosive products, which of course have many legitimate uses, but to stop their sale to children. The best outcome in cases where corrosive products have been sold to someone under 18, for whatever reason, is to ensure that it does not happen again.
I hope that, on the substantive point on short-term sentences, the noble Baroness, Lady Hamwee, will feel happy to withdraw the amendment.
I am more comfortable with the Minister’s explanation than I am with what is written in the Bill. Perhaps we can look at this again between now and Report. The Bill seems harsh—it says that there will be a prison sentence—whereas the Minister has said that a whole suite of options will be available to the courts, including community sentences. It seems a shame that what is written in the Bill is not the whole case. As the noble and learned Lord, Lord Judge, said, prison might be the right option in some cases, but in other cases a community sentence would be appropriate. I not a lawyer—I am a lay person—but perhaps we can look at how the Bill is written. As I said, I am happier with what I have heard than with what is in the Bill.
My Lords, I thank the Minister for her helpful, informative and careful reply. I particularly welcome what she said about the need to think about placing women in prison, given the stubbornly high level of female imprisonment over many years now. I was thinking about the fact that one in 10 lone-parent families is headed by the man. Is there any advice to the courts on whether, when deciding on sentencing, they should take into account whether a man is looking after the children in the family? The Minister will not have it to hand, but I imagine that there is some guidance on that. Perhaps we can look at it at some point.
I am happy to look at that point. Of course, every case is different, so I cannot give a pronouncement here in Committee this afternoon. I have visited Styal prison, an all-female prison near to where I live. I would imagine that Styal is an example of best in class, as it tries to support the family as opposed to just dealing with the woman in custody. I recommend any noble Lords who get the chance to visit that prison, which is an example of a very supportive environment.
My Lords, we have ranged widely and it is tempting to respond to some of the points that have been made, continuing that wider debate, as opposed to focusing on Clauses 1 and 3, but I will try to resist that.
I think that we all agree with the noble Baroness, Lady Newlove, that this is about the quality of sentences. I would regard it as rather despairing to accept that there should be imprisonment because community sentences are inadequate—not fit for purpose, in the jargon. I referred to comments made in April last year, I think, by the Secretary of State for Justice, David Gauke, in response to evidence published by the MoJ showing that, for people with matched offending backgrounds, community orders were more effective than a short prison sentence at reducing offending.
I should make it clear that we are not in favour of selling corrosives that may be misused—I do not want that to come out of this debate. Clause 6 includes the offence of possession, and it is this clause that prompts me to ask whether the Minister can confirm that the offences under Clauses 1 and 3 are summary only offences. Clause 6 refers to conviction on indictment, which would allow imprisonment for up to four years. One always learns something, and I did not expect to learn about the 2003 Act. There are two ways of looking at that: either our amendments are fatally flawed or we have material to come back to at Report. That is neither a threat nor a promise, but perhaps the Minister can answer my question about summary only offences.
I can confirm that to the noble Baroness.
We have all shared a lot more of our views on this Bill than I thought likely to be the case when I tabled these two amendments. I beg leave to withdraw.
Amendment 4 withdrawn.
Amendments 5 to 7 not moved.
8: Clause 1, page 2, line 23, leave out “to” and insert “and”
Member’s explanatory statement
This is a paving amendment for the amendment tabled at page 4, line 23. Together both amendments seek to exclude objects such as car and motorcycle batteries from the definition of a corrosive product in section 3 to allow for their continued delivery to residential premises.
My Lords, of the two amendments in this group, both in my name, the first is a paving amendment to Amendment 18, in Clause 3, which has the heading, “Delivery of corrosive products to residential premises etc”. Clause 3 would carry on the same definition of corrosive products, but my Amendment 18 would allow for an excepted class of product, of which an example is motorcycle and car batteries. The amendment is solely to deal with their delivery to residential premises.
While fully and obviously agreeing with this Bill providing sweeping protection from the misuse of corrosive products, I hope the Government will recognise that unintended consequences—on quite a scale—could occur in the particular case that I am setting out. I hope that the Minister will not want this Bill to disadvantage or even punish an important section of the population, when, by accepting this amendment, a perfectly safe resolution can be achieved.
The wording of my main amendment might appear to be rather obscure, but it is, with reason, copied from what is successfully used in the Poisons Act, as amended. The clue is in the wording: I have narrowed its scope and restricted it to just one of the nine substances listed in Schedule 1, sulfuric acid. It applies to objects containing sulfuric acid, which will usually, but not exclusively, be batteries.
In making my case here I will concentrate on car and motorcycle batteries, in particular the latter category, which would be most affected by an unamended Bill. We are talking mainly about the delivery to residential premises of such batteries. I declare my interest in this matter as a frequent motorcyclist and a member of the All-Party Parliamentary Group on Motorcycling. The Motorcycle Industry Association has picked up the potential problem: the present extensive online sale of motorcycle batteries to individual customers at their residential address would simply be unable to continue were this Bill to pass unamended.
I use the example of motorcycle batteries but this would apply to car batteries and other such sulfuric acid battery users. However, motorcycle batteries are produced and designed in small sizes, to fit particular specialisations and models, unlike car batteries, which are fairly standard and interchangeable and some of which can be bought sealed with a lifetime guarantee. I know to my cost that motorcycle batteries, which are normally sealed, have to be frequently replaced in the normal course of things, and then by the exact shape and power of battery that each machine requires. They are much more prone to failure and the effects of the cold and normally have to be replaced every two or three years. I say all that to emphasise the need of motorcycle owners to obtain ordinary and specialist batteries on a regular and speedy basis, specified for their machines.
As most people, especially the young, use online ordering, and with maybe only one type out of thousands of batteries to choose from being suitable for their machine, such purchases will end up being most conveniently ordered online and delivered to a residential address. Only online dealers could afford to hold the comprehensive stock needed to satisfy that demand. It is more than most convenient, as it would anyway be practically impossible for a single shop or dealer to supply more than a selection of the most popular types of battery. Even that latter might be possible only in a metropolitan area. If one lived in a rural area, it might be virtually impossible—if one were hundreds of miles away—to obtain the right battery in person at a shop or dealer. We do not want to discourage enterprising individuals from changing their own batteries, which is usually much more possible on a motorcycle, rather than having to trouble a garage. I say all this in the potential context of such deliveries to residential addresses becoming illegal under Clause 3.
Perhaps I may now deal with the matter of sulphuric acid, which is contained in these batteries at a greater strength than is permitted in Schedule 1 to the Bill. It might be nearer to 30% than the 15% permitted there. Under the Poisons Act, earlier mentioned, such distant sales at present are able to be made only if such batteries are sealed. It would continue to be the case that the acid would be sold only in sealed batteries. The point of the wording in my amendment, which is taken from the Poisons Act, is that the so-called object—the battery serving the function—is greater than simply the sulphuric acid. In practice if it is sealed as required, its danger as a poison or corrosive product would be minimal. I believe there is no evidence that such batteries have been used as a source of acid for offensive purposes. That point is reinforced by the fact that such purchases are perfectly legal by someone in person, over the counter.
As we know, deliveries are generally being carried out more frequently by different firms and organisations, rather than just the Post Office. Heavier items such as car batteries can likewise be delivered to residential addresses. These vehicle items, and others, still use heavier lead-acid batteries. I realise that more modern batteries might use lithium or other lighter sealed sources but, for the moment, vehicles continue to use lead-acid sources. Other new inventions might come along needing to best use a lead-acid source of power. This amendment would allow such sealed batteries to be so designed and new inventions not to be so restricted, because customers might not be able to replace the required batteries readily.
I have been talking about motorcycle batteries as a case in point but it is worth remembering that many other objects still rely on lead-acid batteries, such as caravans, boats, stairlifts, electric wheelchairs and many more. Such batteries are an unavoidable part of daily life. There could also be all sorts of robotic inventions coming down the line, which might still need to best use sealed lead-acid batteries, and we do not want to inhibit them just because replacement lead-acid batteries would not by then be readily available.
I believe that we have to allow such online ordering to occur, with delivery to residential addresses, and to increase, provided it is safe to do so. I hope I have shown that it is possible in these cases. Were we not to allow it, I have to remind the Minister that there are about 1.2 million motorcycle users, taking up far less space on the roads than others, who might need to change their batteries every two or three years. This is as well as those other categories I have just mentioned, not least electric wheelchair users. For very many of them, especially in rural areas, not to be able to replace their batteries by online means and have them delivered to residential addresses would be more than an inconvenience or disadvantage. The Government would not want to shoulder the blame, especially among what are probably mainly youngish voters, for blighting their lives and effectively discouraging motorcycling. I believe that these amendments can sit safely alongside the laudable purposes of the Bill. I beg to move.
My Lords, I rise briefly to support the noble Viscount. This is an example of how complex this ban on delivering corrosive substances to residential premises is. That is an issue that I will return to in group 7; I shall keep my powder dry until then.
My Lords, I also rise briefly to support this amendment from my noble friend. He is absolutely right. It is not just cars and motorcycles; things such as uninterruptable power supplies for computers, in which I have a particular interest, have them and I do not know whether the fact that the battery is inside another bit of kit which can be unscrewed matters or not. If you have a heavy-duty burglar alarm panel, that will probably have a lead-acid battery behind it. There are lots of reasons why you might want to get replacement batteries. I personally find it very inconvenient, except for the fact that I am married to a farmer. If I was living in a normal place—like my son for instance, who lives in London—I would not be able to buy batteries like that. They are a damned sight cheaper online, I can tell you that.
I think the noble Viscount makes a fair point. He has listed some examples of when this could be a problem. I look forward to the Minister’s response to these valid concerns.
My Lords, before my noble friend responds—the noble Viscount, Lord Craigavon, raised some very pertinent points—she might consider that if a miscreant wanted to obtain a corrosive substance, buying a brand-new motorcycle battery would be an extremely expensive way of doing it. When we look at banning things, we have to be very clear about what we think the benefit will be. This is a substance that is still very easy to obtain. It feels as if we are doing a great thing by banning things—we all want to see a reduction in the availability of these dangerous substances—but the reality is that any backstreet garage or facility will have stacks of used car batteries, from which these substances can be taken. We have to consider whether the delivery of an expensive motorcycle battery that may cost £50 is really a likely route for a miscreant who is trying to get hold of these substances. I am a motorcyclist too, although my battery appears to be very reliable.
I am grateful to the noble Viscount, Lord Craigavon, for raising this important issue. Before joining your Lordships’ House, I was warned that I would be surrounded by world experts on almost every topic and this short debate has reinforced that view.
The noble Viscount’s amendment seeks to address the potential that the provisions in Clauses 1 to 4 will have unintended consequences for suppliers of car and motorcycle batteries and, as the noble Viscount pointed out, other batteries which contain acid, for example those used in mobility scooters. I agree that this is an important point. Noble Lords may be assured that, in the light of discussions we have had with the representatives of the industry, the Government are carefully considering the impact that the Bill may have on the sale and delivery of such batteries. We remain committed to preventing young people from getting hold of acid in a form that they can use in the sort of horrific attacks that we have seen. But I agree with my noble friend Lord Goschen that it is quite a different matter to prevent the sale or delivery of car batteries and the like to those who have a legitimate need for them.
I ask the noble Viscount to bear with us a little longer. The Government need a little more time to consider how best to meet the point without impacting on the purpose of the Bill. I fully expect that we will have completed this work ahead of Report when I hope we will be able to reach a satisfactory conclusion. Given this assurance, I ask the noble Viscount to withdraw his amendment to give the Government further time to consider this issue.
My Lords, I am extremely grateful for the spirit of that reply and to all noble Lords who have spoken in support. There is a genuine problem, which I outlined. It is useful to know that the Government are discussing this and coming up with some sort of answer because it has to be dealt with. I think it can be dealt with. I deal with it also under Clause 3. The Minister mentioned Clauses 2 to 4. I hope this can be dealt with. I am grateful for her answer. I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
9: Clause 1, page 2, line 28, after “may” insert “, following consultation with representatives of persons likely to be affected,”
Member’s explanatory statement
This amendment would require consultation before any amendment of Schedule 1 (corrosive products).
My Lords, Amendment 9 is tabled in my name and that of my noble friend Lady Hamwee. I shall speak also to my Amendments 10A and 10B, which are also in this group. I apologise to the Committee for the late arrival of those amendments.
Amendment 9 simply suggests that if the appropriate national authority amends Schedule 1—the list of corrosive products—for the purposes of Clause 1 by regulation, it should consult representatives of those likely to be affected. Amendments 10A and 10B probe the necessity for including 3% or more nitric acid and 15% or more sulphuric acid in Schedule 1 when they are already regulated explosive precursors listed in Schedule 1A to the Poisons Act 1972 as amended by the Deregulation Act 2015. These substances are already restricted for sale to the general public. If a member of the public wants to buy these substances, they need to apply to the Home Office for a licence to acquire, possess and use these substances. Will the Minister explain why these substances therefore need to be included in Schedule 1 to the Bill and why the existing restrictions are not sufficient? For those who are amazed at the depth of my knowledge of these issues, I am very grateful to the House of Lords Library for its excellent briefing on the Bill. I beg to move.
My Lords, Amendment 10 simply asks why not just list all these substances, since we know what they are and the list will not change. Substances have been left off, such as slaked lime, which are seriously corrosive to skin, might be used and are very easy to obtain, and there are others on the list that would be very difficult to obtain. None the less, if we are going to have a list, since the list is not going to grow over time but is a small collection of basic inorganic chemicals, why not have the lot? It really does not add a lot of weight to the Bill to complete the list.
I am grateful to the noble Lord, Lord Paddick, on behalf of the noble Baroness, Lady Hamwee, and my noble friend, Lord Lucas, for explaining their amendments, which relate to the list of corrosive substances in Schedule 1. I can deal quickly with Amendment 9. I assure the noble Baroness, Lady Hamwee, that we would consult with affected persons before making regulations amending Schedule 1. Whether we need to specify this in the Bill is a moot point, but I am happy to consider her amendment further ahead of Report.
Turning to Amendment 10, I know that my noble friend expressed concerns at Second Reading about the list of corrosive substances set out in Schedule 1 and felt that it did not go far enough and that we needed to have a more comprehensive list. It might be helpful if I set out how we arrived at the corrosive substances and concentration limits in Schedule 1. We based it on the advice from our scientific advisers at the Defence Science and Technology Laboratory as well as from the police.
The substances that we want to prohibit sales and delivery to under-18s and to residential premises are those which we know have been used in attacks to harm and cause permanent injury and those that are the most harmful. Furthermore, the concentration limits are at those thresholds where, if the product was misused, it would cause permanent injury and damage. This seems a proportionate approach when talking about prohibiting the sale and delivery of corrosive products. It is important to remember that we are talking about products that have legitimate uses in our homes or for businesses. Consequently, we should not be criminalising the sale or delivery of particular corrosive substances without good cause.
Indeed, some of the corrosives covered by my noble friend Lord Lucas’s amendment have a very wide range of uses in everyday products. Potassium hydroxide and calcium hydroxide are widely used as additives in food and drinks. Hydrogen peroxide also has a wide range of uses, including in hairdressing, and calcium hydroxide and lime are extensively used in the building trade. We need to be really careful about prohibiting the sale of things to under-18s and banning the delivery of products bought online to a person’s home when those products are widely used or in a form where it is highly unlikely that they can be used in crimes. That would risk making the offences unenforceable and would undermine what we are trying to achieve, which is to stop young people getting hold of things they can use in acid attacks.
We are not aware from the police that any of the additional substances set out in my noble friend’s amendment have been used in a corrosive attack, nor have manufacturer or retail trade associations suggested in our discussions with them that we are missing any particular substances in Schedule 1. Of course, if evidence came to light that other corrosive substances were being misused in this way, we have also taken a power in Clause 1(12) to add a substance to Schedule 1. This power may also be used to remove or modify any substance or concentration limit, should it be necessary on the basis of further evidence from the police or our scientific advisors at the Defence Science and Technology Laboratory. I can assure my noble friend that we will keep the list of substances and concentrations under review and continue to work with the National Police Chiefs’ Council, the Defence Science and Technology Laboratory, retail trade associations and manufacturers.
Finally, Amendments 10A and 10B, tabled by the noble Lord, Lord Paddick, aim to explore the relationship between the substances we have listed in Schedule 1 and those substances that are subject to the provisions of the Poisons Act 1972. There are similarities in how we have defined corrosive products, using the name of the substance, chemical abstracts registry number and concentration limit, which is along the lines of how reportable and regulated substances are set out within the Poisons Act. We took this approach as it seemed right to define corrosive products in a way that retailers and manufacturers are already familiar with through the operation of the Poisons Act. We thought that setting them out in this way would help them identify what products will be captured by the provisions in Clauses 1 to 4.
As I have already said, we set out in Schedule 1 those substances that have been used in corrosive attacks and those that are the most harmful. Both nitric acid and sulfuric acid were identified by our scientific advisers at the Defence Science and Technology Laboratory and the police as appropriate for inclusion in Schedule 1. The noble Lord, Lord Paddick, may also be concerned about why we need to specify both nitric acid and sulfuric acid in the Bill when, as the noble Lord pointed out, they are regulated substances under the Poisons Act. We need to bear in mind that Schedule 1 defines those corrosive products that should be prohibited for sale and delivery to under-18s and for delivery to residential premises, while the Poisons Act seeks to prevent the use of a number of substances in causing harm through the manufacture of explosions or as a poison.
The Bill’s provisions on the sale and delivery of corrosive products specifically seek to restrict access to those substances which are used as corrosive weapons to cause severe pain and injury. We are clear that the two pieces of legislation seek to prevent harm to the public in different ways and we need to ensure that we do not lose sight of this important goal, given the horrendous nature of corrosive attacks. Furthermore, I reassure the noble Lord that we have also engaged retailers and manufacturers on the proposed list of substances and concentration limits. They did not raise any concerns or issues about these substances being included in the Bill when they were already caught by the Poisons Act. In fact, they welcomed the consistency between the provisions in Schedule 1 and those in the Poisons Act. They also felt that we had got the list of corrosive substances of concern right.
I hope that, with these assurances and the commitment to consider Amendment 9 further, I have been able to satisfy my noble friend Lord Lucas, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, and that he will be content to withdraw his amendment.
My Lords, I am grateful to the Minister and commend her on her mind-reading ability. Although Amendment 9 is in my name, she correctly identified its author. My noble friend and I are both grateful that the Government are considering their response to the amendment. I am still not quite clear why we need to ban the sale to under-18s and delivery to residential premises of nitric acid and sulphuric acid in the concentrations specified in Schedule 1. The point of the question was that people cannot acquire these substances unless they have a Home Office licence under the Poisons Act, so they are very unlikely to be sold to somebody aged under 18 or delivered to a residential address. The Government are normally keen not to have unnecessary legislation, and including those two substances in Schedule 1 to this Bill appears to be unnecessary, bearing in mind that they are listed in Schedule 1A to the Poisons Act 1972. We may come back to that at a later date, but at this point I beg leave to withdraw the amendment.
Amendment 9 withdrawn.
Amendment 10 not moved.
Clause 1 agreed.
Schedule 1: Corrosive products
Amendments 10A and 10B not moved.
Schedule 1 agreed.
Clause 2: Defence to remote sale of corrosive products to persons under 18
Amendment 11 not moved.
12: Clause 2, page 3, line 19, leave out from “products” to “were” in line 20
Member’s explanatory statement
This amendment is to probe and clarify why the seller needs to show the method of purchase employed.
My Lords, in moving this amendment on behalf of my noble friend I will speak also to Amendment 16. These are nothing like as technical as the matters raised in the previous group. Indeed they are probing, as all amendments are at this stage in Grand Committee.
The first probe concerns condition A, one of the defences in Clause 2, to which the noble and learned Lord, Lord Judge, has already referred. The Explanatory Notes very straightforwardly state of condition A that,
“at the time of any alleged offence being committed, a seller had a system in place for checking the age of anyone purchasing corrosive products that was likely to prevent anyone under the age of 18 from purchasing that product”.
That seems quite straightforward. What is important, as I read it, is that there is a system in place to check that purchasers are not under the age of 18. The amendment would delete the words,
“by the same or a similar method of purchase to that used by the buyer”.
I am not entirely clear to what those words refer. I do not understand them and I apologise to the Committee if they are perfectly obvious to other Members. The purpose of my amendment is to obtain an explanation of what the words add to those in the Explanatory Notes.
Amendment 16 relates to Clause 2(10) and queries the term “supply”. We have a buyer and a seller, a reference to sale and a reference to delivery, which is to be read as its “supply” to the buyer or someone acting on the behalf of the buyer. The offence in Clause 1 is that of sale. That is not the same as delivery. I would be grateful if the Minister could explain the choice of terminology here. I beg to move.
My Lords, if I can give some comfort to the noble Baroness, Lady Hamwee, I did not understand it either.
I am sure that the noble Baroness is very much comforted. I hope I can clarify the meaning.
Amendment 12 seeks to test why it is necessary to include in Clause 2(6)(a) the words,
“by the same or a similar method of purchase to that used by the buyer”.
There are many different ways to make purchases online or in response to an advertisement by post or telephone. The simple purpose of the condition set out in Clause 2(6)(a) is to ensure that, at the time of making the sale, the seller had the required arrangements in place to verify the age of the buyer. This would assist in proving that an offence had been committed.
Amendment 16 seeks to clarify why Clause 2(10) uses the term “supply” instead of “delivery”, given the terms of the Clause 1 offence. The use of “supply” is correct in this context because it is about the actual handing over of the product to a person or their representative at the collection point, rather than its delivery to the address from where the buyer ordered the product. I hope that provides clarification, although the noble Baroness, Lady Hamwee, is looking even more puzzled than she initially was.
My Lords, I am afraid I remain a bit puzzled. I do not find all of this Bill entirely easy. My prejudice was confirmed this morning when, ironically, I got a rather painful paper cut from the Offensive Weapons Bill. On the second point, “supply” has all sorts of other connotations, particularly with the drug trade. That perhaps diverted me, but “delivery to a person” is not the same as delivery to premises. I remain puzzled by that. I will have to read what the Minister said about Amendment 12, but I thought she more or less said what I said I thought it should mean without the rather difficult words. I will go back and read that.
I am confused as well, so I am in good company. Maybe an example would help the Committee. I am certainly confused about what the words mean.
Would it be helpful if I wrote to noble Lords giving examples?
I think that would be an excellent idea. I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
Amendments 13 to 16 not moved.
Clause 2 agreed.
Clause 3: Delivery of corrosive products to residential properties etc
Amendments 17 to 21 not moved.
Debate on whether Clause 3 should stand part of the Bill.
Member’s explanatory statement
This notice is to probe the relationship between Clause 3 and Clause 4.
My Lords, the purpose of opposing the Question that Clause 3 stand part of the Bill is to raise issues around the practicality of the operation of the clause and to ask the Minister why the scheme suggested in Clause 4—Delivery of corrosive products to persons under 18—cannot be extended to sellers inside the United Kingdom as well as outside, thus obviating the need to ban delivery to residential premises. The practicality of Clause 3 arises out of subsection (6) where premises are not considered residential premises when a person carries on a business from the premises. How does a courier know that the house he is delivering to is also used to conduct a business from? For example, I could be registered as a sole trader with Revenue & Customs, as I used to be before my introduction to your Lordships’ House. I was registered as a writer and public speaker and carried on my business from my home. Unless the courier was able to access— presumably confidential—information held by Revenue & Customs, how would he know? In any event, why should being a writer and public speaker carrying on a business from my home allow me to have corrosive substances delivered there, whereas now I cannot? The noble Viscount, Lord Craigavon, gave another practical example about the delivery of acid batteries.
Clause 4 applies to the sale of corrosive substances where the seller is outside the United Kingdom. It applies where the seller enters into an arrangement with a courier to deliver the substance. The courier commits an offence if they do not deliver the substance into the hands of a person aged 18 or over. The courier is deemed to have taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence if he is shown a passport, a photocard driving licence or other document specified by Scottish Ministers or something that looked like one of those documents and would have convinced a reasonable person that it was genuine. This seems to me to be the proof-of-age system that the noble Lord, Lord Lucas, was looking for in Amendment 3. Why can this system not be modified or added to so that UK sellers can not only age verify as far as possible at the point of sale but, if they are delivering the substance, age verify at the point of hand-over? If there is age verification at hand-over, as set out in Clause 4, why does there need to be a total ban on the delivery of corrosive substances to residential addresses, assuming that that ban is designed to prevent under-18s getting their hands on corrosive substances?
I apologise for my earlier intervention that should have come under this clause. I can see that it is dealt with in Clause 3(6) about farmhouses, and so my earlier intervention was irrelevant. However, the noble Lord has a very good point about why we are banning delivery to residential premises if there is someone there who can prove that they are over 18. The ban is actually not about whether the substance goes to residential premises. There are many reasons why you might want something delivered. For instance, if you are cooking and things like that—I know that is a later section. There are cleaning products and stuff like that. I cannot see the purpose of the ban if the delivery is being accepted by someone who is over 18. As I said in my earlier intervention, it is easy to do now with modern technology; we can now age-verify people extremely accurately.
My Lords, as we have discussed, Clause 3 makes it an offence, where a sale is carried out remotely, for a seller to deliver, or arrange for the delivery of, a corrosive product to residential premises or to a locker. Given the concerns over the use of corrosive substances in violent attacks and other criminal acts, to restrict access effectively we believe that it is necessary to stop delivery to private residential addresses. This does not mean that corrosive products cannot be purchased online in the future, merely that individuals will be expected to collect the product from a collection point where their age can be verified before the product is handed over to them. This provision is important as it will ensure that checks are made and that the purchaser will need to prove that they are 18 or over in order to be able to purchase and collect a corrosive product. If the purchaser cannot collect the corrosive product in person, they would have to be able to send a representative who is also over the age of 18.
We have also included an exemption within the provision to ensure that deliveries to businesses that are run from home—such as a farm—would not be affected by the prohibition on delivery to a residential address, for example, where corrosive products are ordered by small family-run businesses, such as metal working, soap making or even farms, in the case of the noble Earl, Lord Erroll. We have also provided defences that are available in cases where the individual has taken all reasonable precautions and exercised all due diligence to avoid committing the offence.
The noble Lord, Lord Paddick, questioned why both Clause 3 and Clause 4 are needed. Clause 3 relates to the dispatch of corrosive products bought online in the UK to a residential premises or locker in the UK. We cannot apply the same restrictions on sellers who are based overseas without taking extraterritorial jurisdiction for this offence. Such a step would be inappropriate for a sales offence such as this and, in any event, there would be practical difficulties mounting a prosecution given that an overseas seller would not be within the jurisdiction of the UK courts. Clause 3 is therefore supported by Clause 4, which makes it a criminal offence for a delivery company in the UK to deliver a corrosive product to a person under the age of 18 where that corrosive has been bought from a seller overseas and where the delivery company knows what it is delivering. The purpose of Clause 4 is to try to stop overseas sellers selling corrosives to under-18s in the UK and having them delivered to a person under the age of 18. There is no overlap between Clauses 3 and 4; we think that both are needed. Clause 3 deals with UK online sales and Clause 4 deals with online sales from overseas sellers.
The noble Lord, Lord Paddick, again brought up the use of home as a business, which he has mentioned to me before. It will be a matter for the seller under Clause 3 to satisfy themselves that the delivery address is being used for a purpose other than residential purposes. If they cannot satisfy themselves, they should not deliver to that address. Again, it is something that we can deal with in the planned guidance. He also mentioned to me previously his concerns about Amazon’s terms of trade in relation to the sale of alcohol. We are clear from evidence of test purchases of knives that we cannot rely on such terms of business to ensure that the law on age-related restrictions is properly adhered to in the case of online sales.
My Lords, I have to confess to being even more confused than I was before. Is the Minister saying that you can purchase corrosive substances from a seller overseas and have them delivered to your residential premises, but you cannot get corrosive substances delivered to your residential address if you order them from a UK seller? That appears to be the effect of Clauses 3 and 4.
Yes, I am.
That seems a bit odd. If you can get the corrosive stuff only from overseas sellers, you will get the rest of your stuff from an overseas seller too because it is that much more convenient. If there is no positive effect—because people can still get the corrosive substances from an overseas seller—why ban getting them from a UK seller? It is really very easy. A lot of sellers that you think are in the UK are overseas.
Can I be absolutely clear? Are we saying that you cannot buy it from a UK seller but you can buy it from an overseas seller?
You can buy it from either, but the mechanisms for age verification are slightly different.
We have referred quite a lot to Amazon. I do not use it very much, but the few times I have, I have ordered from Amazon but got my items from the producer or seller, which was often in the UK. Is the seller overseas or in the UK in that situation?
If the seller is in the UK, the seller is in the UK. If the seller is overseas there is a slightly different mechanism. As I said, that is because of our ability to enforce sales in the UK as opposed to online sales abroad. The two are very different, but we are banning the delivery of corrosive substances to under-18s when ordered from an overseas seller, just as we are banning that here.
But if I order from Amazon, am I buying from Amazon or from the manufacturer in the UK?
That depends entirely on whether the seller is a UK seller or an overseas seller.
I think the contract is with Amazon, because you pay Amazon for the product. I therefore think Amazon is technically the seller. The website could well be hosted abroad and Amazon has its headquarters abroad. Therefore, your contract is with someone in a foreign country, but the delivery agent may be someone in the UK who happens to have the product and is remunerated by Amazon for it. I am not at all clear. Because this is so obscure, it seems that aligning the two clauses would be sensible—remove the residential bit from Clause 3 and insist on proper age verification of the person receiving the goods, whether the address is residential or business.
My Lords, if you buy from Amazon, you are buying from Amazon UK.
I will put in an order now.
My Lords, I think the point still stands. If you order online from an overseas supplier, you can have your corrosive substance delivered to your residential address and the courier, under Clause 4, is obliged to check the age of the person who it is handed over to, to ensure it is not delivered to somebody under the age of 18. Why on earth—
How can the courier know that there is a corrosive substance in the package? It will just say Amazon on the outside.
It says so in the clause, to be fair.
But this is an overseas seller. It is not subject to this law. It just sends a plain package.
Clause 4 says that if the courier knows it is a corrosive substance, they have to take these precautions. That is what Clause 4 says. It makes no sense to me at all. If age verification at the point of handover is effective in preventing under-18 year-olds getting hold of substances in the case of overseas sellers, why cannot age verification at the point of handover be effective in preventing them getting hold of corrosive substances delivered to residential premises from a UK supplier? It seems to make absolutely no sense whatever.
I think it is because there is an unwillingness to do that with UK sales. We have made provision for this arrangement to apply where the product is picked up, but we cannot impose extraterritorial jurisdiction on overseas sellers and therefore we are putting the onus on the courier to ensure that the product is labelled as a corrosive substance. That is why the two schemes are slightly different.
I am very grateful to the noble Baroness for reminding me of that but I am even more confused. She seems to be saying that, in the case of a UK online sale, somebody can pick up the substance from a pick-up point, where their age will be verified. What is the difference between that and a person at the front door of a residential premises having to prove to the courier that they are over the age of 18? I do not understand how picking up the substance at a collection point or picking it up at your front door makes a difference to the ability of the person handing it over to ensure that the person is over the age of 18.
I can see that this will also get more complicated because you can order a product from a supermarket located just across the channel and have it delivered to your residential premises, which presumably means that it is an international transaction. A particular supermarket was mentioned earlier. I do not think that any supermarkets want to lose their trade to people located just across the channel, but a ban is suddenly going to be put on a lot of local supermarket deliveries.
It seems that in this debate we have highlighted a massive hole in this legislation. Obviously when legislating on matters such as this, you are legislating not for the law-abiding people but for those—villains, crooks and suchlike—who want to do harm to others. It now seems that if you are a person who wants to use these products to attack somebody, you can go to a bad company abroad that will very happily sell them to you. You can make the transaction and the product will come in the post. You think, “Thanks very much”, and off you go to commit your crime with no problem at all. That is a very bad place for us to be in. It might be useful if the noble Baroness could write to those taking part in the Committee to explain where we are, because a big coach and horses could be driven through the Bill in this area. Unfortunately, we will find companies abroad that will sell to bad people in this country, making a mockery of the law that we are trying to pass here.
My Lords, obviously in a perfect world the overseas arrangements would mirror the home arrangements, but the rigour of the age-verification procedures applied to the arrangements for pick-up points cannot be relied on or effectively enforced for home deliveries. It would be great if we could do the same for both situations but we cannot, although I shall be very happy to talk about these issues further before Report.
Given the lack of clarity, if a letter could be sent to us before any discussion takes place, that would be good.
I am very happy to do that.
Clause 3 agreed.
Clause 4: Delivery of corrosive products to persons under 18
22: Clause 4, page 5, line 12, leave out “before the sale, the seller” and insert “the seller has”
Member’s explanatory statement
This amendment is to clarify why delivery arranged after the sale is concluded (as a matter of contract) does not fall within the Clause.
My Lords, I beg to move Amendment 22 but I wonder whether, with the indulgence of the Committee, I can go back to Amendment 12. As it has puzzled at least three noble Lords—three of us have confessed to it—I urge the Minister, as well as writing, to consider whether the wording might be clearer. We would be happy to look at a government amendment on Report because, if it confuses people who are used to reading legislation, there is a good argument for making it clearer to others who will also read it.
Amendment 22 again concerns some detailed wording. Clause 4(1)(c) provides that the clause applies if before the sale the seller has entered into an arrangement for delivery. Why before the sale? Does this apply only if the seller already has delivery arrangements in place? Often that will be the case but I am puzzled as to whether those words might, in a few situations, limit the application of the clause. I beg to move.
May I join the noble Baroness and say that I too am confused?
My Lords, I fear that I am about to confuse people further—I hope not—because the noble Baroness is effectively asking why Clause 4 is drafted on the basis that the delivery arrangements for an online sale made to a vendor based overseas will have been made at the point of contract and not subsequently. It therefore might be helpful if I explain how we have drafted the clause in this way.
The purpose of Clause 4(1)(c) is to avoid criminalising a delivery company in instances where an overseas seller has simply placed a package containing a corrosive product in the international mail. By doing this, it then places an obligation on the delivery company, and potentially the Royal Mail, to deliver the item without having entered into a contract or necessarily knowing that the package contains a corrosive product. If we did not have the provision in place and in combination with the provisions of Clause 4(1)(d), which makes it clear that the company was aware that the delivery arrangements with the overseas seller covered the delivery of the corrosive product, then delivery companies such as the Royal Mail will be committing an offence.
We want to mitigate this, which is why we have constructed the offence in this way so that it requires the delivery company to have entered into specific arrangements to deliver corrosive products on behalf of an overseas seller.
The noble Baroness looks far less confused than she did in my previous explanation and I hope I have provided the explanation she seeks.
My Lords, that is perfectly clear and I am grateful. I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
Clause 4 agreed.
Clause 5 agreed.
23: After Clause 5, insert the following new Clause—
“Offence of obstructing a seller in the exercise of their duties under section 1
(1) A person (“the purchaser”) commits an offence if they intentionally obstruct a person (“the seller”) in the exercise of their duties under section 1 of this Act.(2) In this section, “intentionally obstruct” includes, but is not limited to, a person acting in a threatening manner.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”Member’s explanatory statement
This new Clause would create an offence for those who obstruct retail staff in performing their responsibilities under this Act.
My Lords, I am grateful to the noble Lord, Lord Paddick, for adding his name to this amendment and I am happy to support his Amendments 24 and 25.
We discussed shop workers on Second Reading and, as Members of the Committee will know, the issue was also discussed in the other place on Second Reading during its progress there. I am glad to be here today. As we have heard before, we are placing shop workers at the forefront of the delivery issues. They will be at risk of committing criminal offences, being sent to prison, or incurring a community penalty or possibly getting a fine. If they have sold this product incorrectly, I have no problem with that; if things are wrong, they should be dealt with. What is missing in the Bill is anything about protection for shop workers. In a Question to the Minister last week my noble friend Lady Kennedy of Cradley talked about some of the discussions that have gone on between Victoria Atkins and Members in the other place. A number of initiatives are going on; that is all very welcome, and I support them, but what is missing from the Bill is anything about a specific offence. USDAW, which is promoting this, and organisations such as the Co-op and other companies, the British Retail Consortium and the Association of Convenience Stores have said that this is missing from the Bill.
USDAW has run its Freedom from Fear campaign for many years. I used to work in a shop on a Saturday when I was at school. It was hard work, but it was great fun and I enjoyed it—you got to talk to people. But equally, I remember getting knocked over once when someone ran out with a credit card. In those days you had to phone up to check that the credit card was legitimate; it was not, and the person legged it down the road, leaving me lying on the floor. People get assaulted in shops and can be treated very badly. Here we are putting on shop workers some big obligations that they have to comply with and deal with, but we are doing nothing to support them. People can get assaulted and abused, so we need to see what we can do to improve that. As I said, we have had the discussion around helping the Government, and what they said there is fine, but there is nothing in the Bill. We are asking shop workers to report knowledge and enforce the legislation, as it were, so we should require the Government to do something to support them. There is evidence: plenty of facts and figures. A survey from the Health and Safety Executive found 642,000 reported incidents of violence at work—assaults and threats— and there are other aspects about how people are dealt with.
One of the problems we have is that people are assaulted, abused and threatened. I know that the Minister will say to me in a moment, “There’s no problem here, Lord Kennedy, because you’ve got all these things we’re going to do as a Government, and on top of that, of course, you’ve got the legislation in place already, so people who commit offences will be dealt with”. But, of course, far too often these offences are not prosecuted; people are assaulted in shops and the perpetrators are not prosecuted. That is why we are asking for a specific offence to deal with this. No one goes to work to be punched, pushed over, or abused. If you are assaulted at work and it is particularly traumatic, it can cost people their job or their livelihood; people may not want to go back to work after having been knocked over or assaulted. Why would you put yourself in that position? People can get very scared about going back to work, so again, we need to look at that. To have a specific offence would give shop workers the comfort to know that people recognise that they have been asked to do an important job and support them. Equally, as regards the prosecuting authorities, it should be clear that if people are assaulted in a shop, the prosecutors know that this offence has happened, and the perpetrators can then be prosecuted to the full extent of the law for that offence.
I will leave it there, but this certainly simplifies sentencing, would encourage prosecutions, and would have a deterrent effect, as people would know that if they go into a shop and abuse or threaten a shop worker, they will have committed X offence and, potentially, things can happen to them. I beg to move.
Amendment 24 (to Amendment 23)
24: After Clause 5, in the title, leave out “under section 1”
Member’s explanatory statement
This amendment is consequential on the amendment to insert reference to section 141A of the Criminal Justice Act 1988 in subsection (1) of this amendment.
My Lords, my noble friend Lady Hamwee and I have Amendments 24 and 25 in this group. These amendments are designed to have the effect of extending the scope of the amendment in the name of the noble Lord, Lord Kennedy of Southwark, to cover the sale of knives as well as sale of corrosive substances—or, should I say, to prevent the sale of these items to those under 18.
We had an Oral Question last week on this issue, and I suggested that shop workers were acting as law enforcers in the circumstances. The noble Baroness, Lady Williams of Trafford, suggested that shopkeepers were simply obeying the law in not selling age-restricted items and that we all have a duty to obey the law. I disagree. The circumstances in which this offence would take place are those where someone underage tries to buy an age-restricted item and is prevented from doing so by a shop worker, who in these circumstances is enforcing the law. They are compelling observance of or compliance with the law, which is the definition of “enforce”. As such, they deserve the protection of the law in carrying out this duty. I support Amendment 23.
My Lords, I support both amendments. I totally agree with the noble Lord, Lord Kennedy, not just on the question of having a specific offence but on support within the community. In my previous role and going around the country, I saw women workers on their own selling alcohol and other quite serious items—corrosives and knives—where the employer put their staff in a predicament by not supporting them fully. When they go out of the shops, they are under further threat in their local communities from these groups of gangs, both girls and boys. So I support a specific offence to put that message right through, because workers do not feel that they are getting the right support. Even from the bigger businesses, I am concerned for workers who are scared to lose their jobs as well.
I also really agree with the noble Lord, Lord Paddick, about knives. It sends a message within the communities and the bigger employers who do not know every individual who works for them. It shows loyalty, as well. I am concerned about people who work in local shops, in their local communities, especially where they have security guards to protect the staff but they do not get the support through the law to protect the jobs they so need to feed their families.
I hope my noble friend will listen carefully to what has been said, because there is an increase in the anger constantly found around the country. I do not want to get down to some of the reasons for that, but there is certainly an increase in anger. The sort of people who will be prevented from buying those products are, of course, those who are most likely to give way to anger. I have recently come from a meeting today in which a senior representative of one of our largest supermarkets said how much more there is now a problem with people who will not take the advice of the shop worker that this is not possible.
I really think the Government have to come to terms with the fact that we are a much less willing society. We are not a society that is prepared to go along with these things, as once was true. So although USDAW has had this campaign for a long time, it is more necessary now than it might have been 10, five or even two years ago. The circumstances we are facing at the moment are likely to make more people more angry, and therefore it will become more acceptable. Anger, and showing anger, on the roads or in shops is more accepted by society than it ever has been before—certainly in modern times.
I say to my noble friend that it may well be sensible to make the point specifically that we are asking, indeed insisting, that shop workers—I will not argue whether they are acting as law enforcement people or not—take a stand against people who, by their nature, are likely to be angry, to demand that the shop worker give way to them and to use intimidation for that purpose. I cannot think of a reason why you should not repeat it. I know what the Government often says—all Governments do—because I was a Minister for a very long time and I know I used to say it. I would say: “There is no need for this. We’ve got this and we’ve got that and we’ve got the other”. If it is not actually harmful, perhaps it is a good thing to put it in. I am not sure it is enough that other things cover it. If this reminds people that there is a specific protection for shop workers in this situation, where we asking them to take a stand, that is a valuable thing. I hope my noble friend will take it seriously.
We are devising a system which will impose considerable burdens on sellers. The arguments in favour of this amendment are absolutely obvious. May I make a completely separate point, though? The amendment is brilliant legislation too, unlike the rest of the Bill. Here we have a clear statement of what act you have committed—obstructing the seller—and simultaneously the state of mind you are in: you are acting intentionally. Intention to obstruct is a perfectly clear, simple piece of legislation that anybody could understand. There is an argument that there are various ways those who work in shops can be protected, against violence and so on, but this is very limited in what it is seeking to address: obstructing somebody. In these circumstances, when the burden is so heavy on the seller, they ought to be protected.
My Lord, if I may have a second go, until very recently I did not support particular protections for shop workers. Being from a policing background, I know we have taken the steps in the law to protect law enforcers, and recently there has been a Bill to protect all emergency workers in this way. But here we are talking about people who are intent on violence; they are looking to get their hands on knives or corrosive substances to commit violence. That is the sort of person that these shop workers are likely to confront, and that is why I am now convinced that this is the right thing to do.
The noble Lord, Lord Kennedy, said I would say that there is no problem. I am not going to say that, but I am very grateful to him for explaining his amendment. He attaches particular importance to affording greater protection for retail staff, and his noble kinsman, the noble Baroness, Lady Kennedy of Cradley, raised this question last week. It was a very good opportunity to discuss the issue, which is of great concern. I understand the concerns of retailers and their staff about being threatened or attacked in the course of their duties, including as part of verifying a person’s age when selling a corrosive product. As my noble friend Lord Deben said, it may be those very people who want to buy these things who will be those who mete out the abuse on retail workers. Nobody should have to experience this sort of behaviour at their place of work, especially when providing a service to members of the public.
As I said at Second Reading, the Minister for Crime, Safeguarding and Vulnerability held a roundtable on 11 December with David Hanson MP, Richard Graham MP and representatives from the retail sector, including USDAW and the British Retail Consortium, to discuss what more we can do ensure greater protection for shop workers. Last week, I met USDAW to see what more we can do to ensure these greater protections. Following the discussion at the roundtable I am very happy to update the Committee. We will be taking forward the following actions: first, the call for evidence, which I spoke about last week and is intended to help us ensure that we fully understand this issue and look at all the options for addressing it; secondly, that we provide funding to the sector to run targeted communications activity to raise awareness of the existing legislation that is in place to protect shop workers; and thirdly, we are refreshing the work of the National Retail Crime Steering Group, co-chaired by the Minister for Crime, Safeguarding and Vulnerability and the British Retail Consortium. An extraordinary meeting of the group, focused exclusively on violence and abuse towards shop workers, will take place on 7 February. That discussion will help to shape the call for evidence.
In addition, the Sentencing Council is reviewing its guidelines on assault. A consultation on a revised guideline is anticipated to commence this summer. These measures are intended to complement existing work under way to tackle this issue. For example, the Home Office is providing funding of £1 million for the National Business Crime Centre over three years between 2016 and 2019. The centre was launched by the National Police Chiefs’ Council in October 2017 to improve communication between police forces on business crime, promote training and advice, and help to identify national and local trends.
In addition, through the national retail crime steering group, which includes representatives from across the retail sector, the police and others, we are taking forward a range of work to strengthen the collective response to these crimes, including: the creation a “crib sheet” for retailers to use when reporting violent incidents to the police so that they get the information they need to support a timely and appropriate response; exploring options for improving consistency in the recording of business crime by the police, which will include a short pilot analysis of forces applying business crime flags; and the development of guidance on impact statements for businesses to increase their use. These statements give businesses the opportunity to set out the impact a crime has had and are taken into account by courts when determining sentences.
I know that there are concerns about the adequacy of the existing legislation for protecting those selling age-restricted products. The call for evidence is intended to help us understand better how the existing law is being applied and whether there is a case for reform, including in the context of the sale of age-restricted products. However, I want to provide some reassurance about the legislation we have in place, without dismissing noble Lords’ points. A wide range of offences may be used to address unacceptable behaviour towards shop staff—including those who sell age-restricted items—covering the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent crimes.
Some of the existing offences available include behaviour that causes another to fear the immediate infliction of unlawful violence, which is already an offence of common assault under Section 39 of the Criminal Justice Act 1988. Where shop workers are threatened or experience abusive language, this may be captured by the offences under the Public Order Act 1986. There is also the Offences against the Person Act 1861, which means that assaults against shop workers could be considered as assault occasioning actual bodily harm under Section 47 of that Act. In addition, courts have a statutory duty to follow sentencing guidelines when considering any penalty to be imposed further to criminal conviction, unless it is not in the interests of justice to do so. In all cases, the fact that an offence has been committed against a person serving the public may be considered an aggravating factor for the purpose of passing sentence.
In answer to my noble friend Lord Deben and the noble Lord, Lord Paddick, the specific offence in Amendment 3 could be counterproductive and encourage prosecutions for the new obstruction offence with a maximum penalty of a fine—I think that the noble and learned Lord, Lord Judge, made that point as well—rather than a more serious offence, such as assault, which carries a higher penalty. That said, and going through the list of offences that this may capture, we understand retailers’ concerns about the risk of their staff being threatened or attacked—particularly, as the noble Lord, Lord Kennedy, said, for smaller retailers, such as corner shops. The call for evidence is intended to improve our understanding of the issue and identify potential solutions. We will seek to issue the call for evidence as soon as is practically possible.
The noble Lord, Lord Paddick, asked whether shop workers were law enforcers. It is a moot point on which I think we will agree to differ. I was trying to make the point that they are not policemen but they have to uphold the law. With that, I hope that I have given the noble Lord, Lord Kennedy, enough to help him to withdraw his amendment.
Amendment 24 (to Amendment 23) agreed.
Amendment 25 (to Amendment 23)
25: After Clause 5, in subsection (1), at end insert “and under section 141A of the Criminal Justice Act 1988 (sale of bladed articles to persons under 18).”
Member’s explanatory statement
This would extend Lord Kennedy of Southwark's amendment so it would also be an offence to obstruct retail staff in their responsibilities in preventing the sale of knives to persons under 18.
Amendment 25 (to Amendment 23) agreed.
I thank all noble Lords who have spoken for their support. I agree very much with the comments of the noble Baroness, Lady Newlove. We have to remember that we are talking about usually very low-paid people, often working in difficult situations. I can often see these things happening late at night or early in the morning. It does not really matter whether you work in a big organisation or in the corner shop. As we know, in many big stores there is no one around late at night. That is part of the problem. If ever you leave this House and go to the supermarket on the way home—I do sometimes—there is no one in them. It is the same if you go to a big hardware store. Whatever the people’s job is, it is not to sell the young person the knife or the acid, and they are put in a difficult situation.
I agree with most of the comments of the noble Lord, Lord Deben, about anger. There is a lot of anger around in this country at the moment for all sorts of reasons. That is another debate for another time, but angry young men going into stores late at night wanting a knife or acid are not the sort of people I would want to meet. I would not want to be behind the counter saying, “You can’t have that”, and we are leaving people to do that. As the noble Lord said, if the amendment is not harmful, what is the problem? I recall debates on other Bills. On the counterterrorism Bill, we passed a few amendments and accepted that what we were agreeing was wrong—but it was all fine to carry on as though that were not a problem.
If you go into a store and commit this offence, the amendment would make things easier for prosecutors and give some comfort to shop workers. I certainly intend to come back to it at a later stage. I look forward to meeting USDAW. I know that my friend Paddy Lillis will put forward a strong case for holding those discussions before Report and I hope that we can persuade the Government to act on these matters. I beg leave to withdraw the amendment.
Amendment 23, as amended, withdrawn.
Clause 6: Offence of having a corrosive substance in a public place
Amendment 26 not moved.
27: Clause 6, page 7, line 4, at end insert “with intent to cause injury”
Member’s explanatory statement
This amendment would make it an offence to have a corrosive substance in a public place only with the intent to cause injury to someone.
My Lords, the amendment is in my name and in those of my noble friend Lady Hamwee and the noble Lord, Lord Ramsbotham. We are back to group 1 and the issue of completely innocent people having to prove their innocence beyond reasonable doubt.
We discussed this at considerable length on group 1 and I do not intend to rehearse those arguments again, save to say that people acting completely innocently commit an offence as the legislation is drafted, hence the need for the amendment. That having been said, if someone has a corrosive substance with them in a public place with the intention of causing injury to someone, they commit an offence under Section 1 of the Prevention of Crime Act 1953, which defines an offensive weapon as:
“any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him”.
If they have a corrosive substance in a water pistol or a washing-up liquid bottle capable of squirting the corrosive liquid at someone, it is an article adapted for causing injury. If they have a corrosive liquid in the bottle it was sold in, intending to pour it over someone, it is intended by the person to cause injury, and an offence under the Prevention of Crime Act.
To quote from the briefing on the Bill from the Standing Committee for Youth Justice and the Prison Reform Trust, the clause,
“creates a very loose and ill-defined offence, that fails to satisfy the requirements of legal clarity and will lead to unjust prosecutions and custodial sentences”.
“New legislation is unnecessary. Currently, someone found in possession of corrosive substances, where there is intent to cause injury, could clearly be prosecuted under existing offensive weapons legislation … Prosecutors should be required to prove intent to cause harm …The new offence puts the onus on the child”—
“to show they have good reason for carrying the corrosive substance … Proving such a defence may be difficult”.
I beg to move.
My Lords, I put my name to this amendment purely to be consistent with what I said at Second Reading. As the noble Lord, Lord Paddick, has pointed out, it could be that children are sent to collect corrosive substances from shops. They do not know that the substance is corrosive, as defined by the Act, and could be caught in possession by stop and search techniques, resulting in thoroughly unfortunate imprisonment.
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the rationale behind this amendment which would, as he has acknowledged, fundamentally change the nature of the offence provided for in Clause 6. As the noble Lord pointed out, we return in part to the arguments that he put forward in the first group of amendments. I appreciate the noble Lord’s concerns, but I will set out the reasons why we are seeking to introduce this new possession offence.
The noble Lord, Lord Paddick, made reference at Second Reading to the existing legislation in this area, and I will explain why it is not sufficient to tackle the problem of individuals carrying corrosive substances in public. Under Section 1 of the Prevention of Crime Act 1953, it is already the case that anyone who is in possession of a corrosive substance can be prosecuted for the offence of possession of an offensive weapon. However, for the accused to be guilty of the Section 1 offence, it is necessary to prove that they are carrying the corrosive substance with the intention of causing injury. Such intent can be proved, for example, in cases where an individual has decanted the corrosive substance into a different container for the purposes of making it easier to squirt or throw at another person and also to conceal it from the police. However, the intention of Clause 6 is to strengthen the powers available to the police and the Crown Prosecution Service. We want to remove the burden on the police and the prosecution to prove that the person was carrying the corrosive substance with the intention to cause injury.
This approach is not novel; it is consistent with the possession offence for knives and bladed articles. We have modelled the new offence on existing legislation in place for the possession of knives under Section 139 of the Criminal Justice Act 1988. There is also a similar offence in place in Scotland. We have put in place suitable defences for members of the public to prove that they had good reason or lawful authority to be carrying the corrosive substance in a public place. These defences are also modelled on existing legislation for the possession of knives.
I know that noble Lords may be concerned about law-abiding members of the public being stopped by the police as they leave their local supermarket or tradespeople being stopped. However, I reiterate the points that my noble friend made at Second Reading about how we envisage the new offence being used by the police. This is not about the police criminalising tradespeople, children sent on an errand or law-abiding members of the public. We would fully expect the police to use this new offence in response to information or intelligence from the local community that someone was carrying a corrosive substance in public.
Furthermore, as my noble friend also indicated at Second Reading, with the National Police Chiefs’ Council, we have jointly commissioned the Defence Science and Technology Laboratory to develop a testing kit for the police to use to be able to identify corrosive substances in suspect containers. This work is well under way, and we want to have a testing kit in place before commencing the new possession offence.
We need to strengthen the law to tackle the abhorrent use of corrosive substances as weapons. This amendment would effectively leave the criminal law as it currently is. I hope that, in these circumstances, the noble Lord is persuaded of the case for the new offence as currently formulated and would be content on reflection to withdraw his amendment.
My Lords, I am grateful to the Minister for his explanation. I seek clarification, however, on Section 1 of the Prevention of Crime Act 1953, about which the noble Earl said that in order for somebody to be guilty of an offence under that Act, intent had to be proved. However, if the person is in possession of a made offensive weapon—an offensive weapon that has no other purpose than to cause injury: a dagger, for example—then my understanding is that no intent is required. Indeed, if the article that the person has with them is adapted to cause injury—for example, a water pistol filled with a corrosive liquid—again, there is no need to prove intent. That would make the existing offence even stronger than this offence as amended by this amendment.
The noble Earl talks about consistency with Section 139 of the Criminal Justice Act 1988 regarding bladed and pointed instruments. I accept that the offence as drafted is consistent with that Act, but, in my view, two wrongs do not make a right. The noble Earl and the noble Baroness earlier talked about how the Government envisage that the police will use this legislation. They fully expect the police to use it in response to intelligence. I go back to what I said on the first group: having been an operational police officer for more than 30 years, I do not share the confidence that the Government have about how, in every case, the police are going to use this legislation. This is the source not only of my concern but, as I have said, of the concern of the organisations I mentioned in proposing the amendment.
As far as the testing kit is concerned, that is something that we will return to in a successive group later on. However, having made those points, I beg leave to withdraw the amendment.
Amendment 27 withdrawn.
Amendment 28 not moved.
29: Clause 6, page 7, line 6, leave out “or lawful authority”
Member’s explanatory statement
This amendment, along with the amendment to page 7, line 14, is to probe what “lawful authority” is and how it is obtained.
My Lords, I shall speak also to Amendments 30 and 31. These amendments are in my name and that of my noble friend. Amendments 29 and 30 seek to understand what is meant by “lawful authority”. In Clause 6(2)—I am not making any concessions about the points made on the first group of amendments this afternoon—it is a defence to prove that a person had “good reason” or “lawful authority” for having the corrosive substance with them in a public place. Obviously, lawful authority is not the same as good reason, otherwise it would not have to be provided for—although one would have thought that lawful authority would be good reason. But what is lawful authority? Where does the authority come from? Who gives it? How does one apply for it? Is it a consequence of some other arrangement that is in place? Amendment 29 applies to England, Wales and Northern Ireland and Amendment 30 to Scotland, but they make the same point.
Amendment 31 makes a very small point, but I have discovered over the years that sometimes small points are worth making. Under Clause 6(3) one can show that one had the corrosive substance for “use at work”. My amendment would substitute for those words “the purposes of work”, thereby distinguishing in my mind the purpose and the place. These days “work” is very often used to designate the place. Technically, that might be a bit lax, but it is what people say: “I’m going to work”. They do not mean, “I’m going to put in a good day’s effort”; they mean, “I’m going to my place of work”. The Minister may say that “for use at work” implies “purpose”, but one might take something to use at a place where there is no legitimate reason for using it. I beg to move—and I wish Hansard could record the look on the Minister’s face.
My Lords, as the noble Baroness explained, these amendments address the defences available if someone is charged with an offence of possessing a corrosive substance in a public place. As I understand her, these amendments are intended to probe what would constitute lawful authority to be in possession of a corrosive substance in a public place. She then went on to comment on the phrase “for use at work”.
On the lawful authority issue, let me give your Lordships one example. Under the Poisons Act 1972 there is a licensing regime for regulated substances such that a Home Office licence is required to import, acquire, possess or use a regulated substance. Both nitric acid at above 3% concentration and sulfuric acid at above 15% concentration are regulated substances. Therefore, there may be circumstances where a Home Office licence holder has purchased a corrosive product containing one of these substances and is transporting it from A to B. This would be a scenario where the defence of lawful authority might come into play.
However, for the majority of cases, a person would need to rely on the defence of having good reason—unless, of course, they were a tradesperson and had purchased the corrosive for use at work. This brings me to Amendment 31, about how we have framed the defence for tradespeople and businesses. The reference to “for use at work” replicates the terminology used in existing knife legislation. The existing defences in relation to the possession of an offensive weapon in a public place are well understood by the police and various trades and businesses, and we are not aware of any issues in the operation of them in relation to the possession of knives.
While I can see the intention behind the amendment, I will need to think about what the noble Baroness has said—but I am not convinced that it is necessary or in practice achieves any significantly different result. I am also concerned that having a different defence in place for possession of corrosives, compared with that for knives, would or could cause confusion and unnecessarily complicate the law. So I hope that, at least for now, I have been able to provide sufficient clarification to persuade the noble Baroness to withdraw these amendments—although, as I have said, I promise that I will read carefully in Hansard what she said.
My Lords, I am grateful for that. The approach to the wording of legislation has been updated quite a lot recently. That was partly in my mind when I raised the point about “at work”—that one wants legislation to be read as easily as possible, using words as they are normally understood. I understand, of course, a resistance to distinctions between offences relating to corrosives and offences relating to knives. That is not how it was dealt with in the amendment in the name of the noble Lord, Lord Kennedy, and in our amendment to it on shop workers. That does not mean that you cannot amend the earlier legislation.
Regarding licensing under the Poisons Act, it seems that one would have a good reason and would not have to rely on the lawful authority defence. I believe that we are going to look at the Poisons Act again—it has been brought up several times. Certainly for the moment I beg leave to withdraw the amendment.
Amendment 29 withdrawn.
Amendments 30 and 31 not moved.
32: Clause 6, page 7, line 40, leave out from “means” to end of line 41 and insert “a substance which, when applied at room temperature to the back of an average human hand for a period of ten seconds, would be expected to substantially corrode the skin;”
Member’s explanatory statement
This amendment would replace the definition of corrosive substances provided in the Bill. The amended definition would include reference to the conditions under which a substance may corrode human skin, such as temperature.
My Lords, as has been pointed out already, these are absolute offences in this Bill. Therefore, people ought to know what it takes to be guilty of that offence. The clause here states that,
“‘corrosive substance’” means a substance which is capable of burning human skin by corrosion”.
That is, of itself, a very loose definition. There are obvious substances that would fall under this, such as cement. Lots of builders get burned by cement every year; if it gets trapped against the skin for any length of time it can cause nasty burns that take a long time to heal, Wart cures, by and large, are designed to burn human skin. There is also a large collection of substances that will burn skin under relatively unusual circumstances, such as household bleach. Generally you would not be exposed to household bleach for a long time, but it would fall within the definition here because it will corrode human skin if you use it for long enough. We talked earlier about hydrogen peroxide, which will corrode human skin if it is hot enough.
We need something here that gives the people who are subject to this clause a clear idea of what is forbidden. My noble friend hinted earlier that there may be some testing kit. Great—but if there is a testing kit, there must be with it a very clear statement of what gets caught. When people are committing or are in danger of committing an absolute offence, they must know what conduct will put them in danger of that. If the Government want a looser definition, it should not be an absolute offence. I beg to move.
I advise the Committee that if this amendment is agreed to, I cannot call Amendment 33.
My Lords, the noble Lord, Lord Lucas, is in the same territory as my noble friend and I. Like him, we seek to know how one objectively defines “corrosive substance”. His amendment asks what happens if the skin is particularly sensitive. I am not sure that there is such a thing as the “average human hand”, which he refers to in his amendment. I suspect that sensitivity may depend on age—whether one is young or old could affect vulnerability—as well as all sorts of other matters.
Our amendment proposes two points. The first refers to the testing method. That would not help the point, with which I have a great deal of sympathy, about knowing whether a substance falls within the definition but it enables us to ask about the status of the testing kits. The noble Earl has said that work on them is well under way. Can he tell us any more about them? Are they intended to work—as I understand it—like a breathalyser? It is enough to get you taken off for a second and different test, but does it start with a roadside test? As with a breathalyser, it may look as if you have failed it. Again, this is as I understand it; I do not have personal experience of going down to a police station and giving a blood test or a mouth-breath test. The point is about the process.
My second question is about the definition of the substance as one capable of burning human skin. Our amendment refers to eyes, since a lot of awful acid attacks have involved throwing acid into someone’s eyes. Are eyes “skin” for this purpose? We simply want to be sure that we have covered the ground here.
My Lords, perhaps I may speak briefly on this rather macabre amendment. First, I am not sure who the testing is to be done on. I cannot see many volunteers being willing to be corroded. My second and more substantive point is that I cannot see why the definition is required because, as I read the Bill—not an easy Bill to read, as we have discovered today—a corrosive substance is de facto defined by Schedule 1. I would have thought it much more satisfactory to retain the concept of a schedule, which can be altered by order, than to have this rather frightening test.
My Lords, I am grateful to my noble friend for explaining his amendment, which seeks to modify the definition of a corrosive substance for the purposes of the new possession offence. This provides me with the opportunity to clarify why we have taken the approach that we have, and to reassure him about how the new possession offence would be used.
We know that perpetrators of these horrendous attacks often decant the corrosive into other containers, for example soft drinks bottles. This is done to make the substance easier to use but also to conceal.
Police officers who come across an individual carrying a bottle containing a suspect liquid will not know exactly what chemicals it contains or at what levels. As a result, the approach we have taken for the sales and delivery offences of defining a corrosive product by substance and concentration limit will not work on our streets. The police require a simpler definition for use operationally, so we have defined a corrosive substance by its effect rather than by its specific chemical composition—that is, as a substance capable of burning human skin by corrosion.
My noble friend is concerned that that is too wide. While I understand his concerns, I submit that what he is proposing as an alternative definition would not be workable for the police in the situations where they would use this power. The new possession offence will be used in our public places, so suspect chemical substances will not be at room temperature. You cannot guarantee where the police will apprehend the person concerned. Nor will police officers know whether the substance would substantially corrode the skin within 10 seconds of contact or exposure if they are dealing with a suspect substance in a drinks bottle. Of course, I accept that it will equally be the case that a police officer will not know whether a substance,
“is capable of burning human skin by corrosion”,
to quote the existing test in Clause 6. However, we consider this the appropriate objective test that is capable of being evidenced to the criminal standard.
As I mentioned, and indeed as was mentioned at Second Reading, with the National Police Chiefs’ Council we have commissioned the Defence Science and Technology Laboratory to develop an effective and robust testing regime to allow the police to safely test the contents of suspect containers for corrosive substances. As I also said earlier, we intend to have a viable testing kit available before the provisions on the new possession offence are commenced. I have also noted the important point made at Second Reading that these testing kits need to be cost-effective.
I put it to my noble friend that his alternative definition would not, as he clearly intends, provide greater clarity to members of the public on what products might be caught by the new offence. The kinds of products that we are concerned about include drain cleaners, brick and patio cleaners and industrial-strength cleaners. However, as I have mentioned, the substances in such products are often decanted for an attack, not carried by perpetrators in their original containers.
It has been suggested that the police may target law-abiding members of the public as they leave supermarkets with their shopping. At the risk of repeating unnecessarily a point I made earlier, it should go without saying that that is not how the police operate. As my noble friend said at Second Reading, we would expect the police to take an intelligence-led approach where they have information from the local community that an individual is carrying a corrosive substance on their person in public, and that the police have reasonable grounds to conduct a stop and search.
Amendment 33, in the name of the noble Lord, Lord Paddick, touches in part on similar issues. I shall deal first with the extension of a corrosive substance to cover substances capable of burning external human organs, such as the eyes, as well as the skin. I reassure the noble Lord that this addition is not needed. In drafting this provision, we considered that very point, and we concluded that by defining a corrosive substance as one capable of burning human skin by corrosion, we would also effectively capture the corrosive effects on any other part of the human body.
I turn to the issue of testing kits. The Home Office, together with the National Police Chiefs’ Council, is on the case, as I have described. We are in the process of establishing an appropriate approvals process for these testing kits. Naturally, we want assurance that the kits are capable of detecting and identifying corrosive substances, but I am not persuaded that we need to build into the Bill a statutory approvals process. Various options for these testing kits are currently being looked at by the Defence Science and Technology Laboratory. I am afraid it is too soon for me to say what form the kits will take; there is still further work to do on that. Given where we are—I understand we are at a reasonably advanced stage with these testing kits—I hope my arguments have persuaded my noble friend and the noble Lord, Lord Paddick, to withdraw, or not to move, their amendments, at least for the time being.
Before the noble Lord responds, first, will there be an opportunity for Parliament to consider the arrangements for testing when they are pretty much complete? I am sure it will be of interest. Secondly, are skin and eyes similarly sensitive? Or do we risk not outlawing a substance that might damage the eyes but would not damage the skin?
In answer to the second question, my understanding—on advice—is no. A substance capable of burning the skin by corrosion would also be capable of doing severe damage to the eye, and the other way round. We do not think we are excluding any substance by accident in defining corrosive substances in this way. On the noble Baroness’s first question, as I understand it, the approval of the testing kit will not be subject to any formal parliamentary procedure, but I am sure the noble Baroness is capable of finding ways to tease out relevant information from the Home Office at the appropriate time.
My Lords, in thinking about how criminals might think about getting around the law that the Government are proposing, I add this as a footnote to take away. Would it be possible to take two separate substances, which on their own might be quite innocuous, but when mixed together could be powerfully corrosive and thereby say you were not carrying corrosive substances? That is something to take away as a possible concern.
I am grateful to the noble Earl. Not being a chemist, I do not know whether this applies to corrosive substances as it does to, say, explosive substances. I will certainly take advice on the matter.
My Lords, I am very grateful to my noble friend for that response. Could he write to us on this question of eyes? I am aware of quite a large number of substances which have hazard signs about getting them in your eyes, but nothing about getting them on your skin. Hydrogen peroxide would be an obvious example, but there are others. I wondered if you might question that. Are we covering stuff thrown in people’s eyes effectively, so that there is no risk of permanent damage from substances that can be washed off the skin easily, causing a bit of redness but not much else? I am not an expert, but this is not what I have read. I would be grateful if my noble friend could drop us a line on that.
As for the general principle, this is something we will have to chew over and come back to on Report. I am concerned that people should know when they are committing an offence. If you look up acetic acid, otherwise known as vinegar, you will find that it is highly corrosive to the skin and eyes. This is being drawn very widely; I can understand why, but when the testing kit is published, it has to be clear what it applies to and what it will pick up, or we have to have a defence in here that the substance was not actually a weapon—that it contravened this, but was not capable of being used as a weapon. If we do not, we shall give the police opportunities which they should not have to bounce people off the wall when they feel like it. Occasionally it happens—there is a nice little story doing the rounds about the Humberside Police, who grilled a man for 35 minutes because he retweeted a limerick. The police can sometimes be quite interesting in the use of their powers, and one should not assume that they will be perfect on every occasion.
Something like this, which gets down to the relationships between communities, and gives police officers an opportunity to pick up people where perhaps they ought to be doing other things, requires giving some thought to how to make it as fair as we can while not removing from police officers the opportunity to nab someone they suspect has something on them intended to do people harm. I beg leave to withdraw the amendment.
Amendment 32 withdrawn.
Amendment 33 not moved.
Clause 6 agreed.
Clause 7 agreed.
34: Clause 8, page 8, line 39, leave out “16” and insert “18”
My Lords, in moving Amendment 34 in my name and those of others, I will speak to my opposition to the clause. My comments about Amendment 34 apply to the clause as a whole.
The noble Baroness, Lady Hamwee, has already mentioned the very good briefing which many Members have received from the Standing Committee for Youth Justice and the Prison Reform Trust. Speaking about the new possession offences, it forecasts that the measures will be ineffective because they increase the use of ineffective short mandatory minimum sentences. They create legal uncertainty, may lead to disproportionate sentences and are likely to increase black and ethnic minority disproportionality, further damaging trust in the justice system. I apologise for saying some of this earlier in the debate on another amendment.
Amendment 34 seeks to move the application of this clause from the age of 16 to 18, and is entirely in balance with the Children Act 1989, which lays down that every person in this country under the age of 18 is a child. My contention is that, if mandatory short sentences are ineffective for adults, they are even more so for children. The appropriate sentence advised in Clause 8 is,
“a detention and training order of at least 4 months”.
That means that they will have only two months in prison and two months supervision. Bearing in mind the conditions in our prisons at the moment, and remembering that last year the Inspectorate of Prisons reported that there was not a single young offender institution in the country in which young offenders were safe, that means that—with the overcrowding and shortage of staff—two months will not be enough even to complete an assessment of what a young offender needs.
I therefore think that, in all cases of children involved in possession, custody should be eliminated from the equation—and eliminated from this Bill. As I mentioned, community sentences are in some disarray at the moment, but that does not apply to the youth offending teams, which have the benefit of being under local government control and are therefore able to reflect the wishes of the community in the community sentences that they impose.
In general terms, we must have clear evidence that everything has been tried, and has failed, before any child is sent to custody. That would, not least, honour the UN Convention on the Rights of the Child, which says that custody should be used only as a last resort. In tabling this amendment, I add that no child should be ordered into custody for a mandatory short sentence.
My Lords, my noble friend and I support the noble Lord, Lord Ramsbotham, particularly on the question of the clause standing part. I am conscious of progress in the Chamber, so I will not say as much as I might otherwise have done. It looks like some negotiations are going on. We have a number of other amendments to these clauses as well. In addition to supporting what the noble Lord has said, I want to make clear our implacable opposition to mandatory sentences—in this case custodial ones. Judicial discretion is very important and precious in our system.
Clause 8(4) is a get-out clause, referring to having regard to the duty under the 1933 Act to have regard for the welfare of the child. I do not think this works. It was obviously a response to representations, but it applies only to children, not young adults, and seems to be a nod to that well-established provision without changing anything that surrounds it. I also have a question about the particular circumstances in Clause 8(2). I had a look at the sentencing guidelines yesterday. If that phrase originates from those guidelines then subsection (2) is actually an inversion of them. They require the court to look at the particular circumstances, but Clause 8(2) is the reverse: it is an “unless” provision. Finally, Amendment 37 deals with the appeals subsection. We have added a reference to the criteria in Clause 8(2). I am not sure whether this is appropriate technically, but perhaps we could have an explanation as to how the appeal takes into account the points made in that subsection.
My Lords, I support these amendments tabled by the noble Lords, Lord Ramsbotham and Lord Paddick, and the noble Baroness, Lady Hamwee, and the clause stand part Motion spoken to so ably by the noble Lord, Lord Paddick. The noble Lords made the case very strongly against short-term prison sentences. I want to add my voice to emphasise very strongly just how unhelpful these short-term sentences are, particularly to the very vulnerable young people who are most likely to be caught up in these offensive weapons allegations or crimes. Apart from doing nothing for those individuals, short-term sentences do absolutely nothing for society as a whole. If we do not prevent these young people committing crimes in the future, our society will be all the worse off.
Scotland has shown the way. The removal of judgment in Scotland has been proven to be more cost effective and positive when responding to people with drug and alcohol addiction and other problems often associated with the carrying of knives or corrosive substances. I believe huge proportions of these young people have drug problems. As others have mentioned, the Ministry of Justice has already produced its own evidence of the ineffectiveness of short-term imprisonment. Perhaps the Minister can explain why we are adding to these short-term sentences in this Bill.
I want to draw the Minister’s attention to the radical Checkpoint deferred prosecution scheme in Durham, run by Chief Constable Mike Barton, and very much supported by his police and crime commissioner, Ron Hogg. Checkpoint is a multi-agency initiative which aims to reduce the number of victims of crime by reducing reoffending. This is what this should all be about. The scheme targets low and medium-level offenders—it is not just for people right at the bottom—at the earliest stage of the criminal justice process and offers them a suspended prosecution. It encourages them to engage in services designed to address their problems instead receiving a caution or going to court, which does not seem to have anything to do with where these kids or young people are coming from. Checkpoint is evaluated by Cambridge University. This is very important because the evidence on this is really very thorough and reliable.
If this amendment were to be accepted by the Government, the objective would be for the Checkpoint policy, or something like it, to be applied to children and young people who are found in possession of an offensive weapon. I know very well how utterly appalling these corrosive substances are. I happen to know a young, beautiful girl whose face has been utterly destroyed by an acid attack. The poor girl has had endless operations and she will not be the beautiful person that she was, although she will be a beautiful person inside and that is what really matters. Nevertheless, I want people to know that I really understand that these are shocking and horrible crimes. The most important thing that we can do is to cut them down, reduce them and, ideally, eliminate them. Anything that somehow does not achieve that is an utter failure, so I feel very strongly about it because we have to do something that is effective.
Checkpoint shows that it is the threat of punishment, rather than the severity of a punishment, that is cost-effective and, most importantly, effective. It argues in favour of taking a whole-person-centred approach to understand the causes of their offending and ensure that those people receive appropriate interventions to address the problems of drug dependence, debt issues or homelessness—a whole range of problems that these young, very vulnerable people face. Indeed, its figures from a random control trial—and I emphasise that it is a random control trial, not just any old tin-pot kind of study—show that reoffending is reduced by 13% if we do not send these people to custody but instead try to get them involved in help for their problems.
Its study of young offenders who have committed crimes on more than five occasions within a year is very important. You might think that these are hopeless cases and that there is no point in doing anything. This study looks at the traumatic experiences during childhood that so many of those repeat offenders have experienced. Almost all have been exposed to violence, physical harm or danger, parental offending or admissions to A&E due to physical harm or trauma. They have frequently exhibited violent behaviour or problems in school and have been excluded.
We have to ask ourselves about the effect of putting those young, very vulnerable, damaged children into custody for just another dose of punishment. They obviously need a great deal of therapeutic help and support to begin to recover from their childhood experiences. Durham Constabulary, West Midlands Police and other police services are, in my view, leading the way in exploring policies which will benefit not only the vulnerable but society as a whole by reducing reoffending and will also save vast police and prison resources, but that is not the point. This is about reducing these terrible crimes and helping the vulnerable.
I hope this legislation can be amended to ensure that it works with the grain of new, evidence-based criminal justice policy. It is interesting that police services are taking the lead in this crucial field. Of course, the police have their street-level experience; I always have great regard for the noble Lord, Lord Paddick, for this reason—he knows what goes on on the street. They are saying we should not send these people to prison because they see them coming round again and again. I take this very seriously; I think we all should. I hope the Minister will discuss with us how best to amend this Bill. I very much look forward to the Minister’s reply.
My Lords, I will hold the Committee for only one moment, but I very much agree with the arguments put forward by those who tabled this amendment. It seems that this is another example of saying, “We’ve got to do something, so let’s do this”. But “this” has failed. It does not work and is a disaster. There is no more stupid thing to do than to give young people short prison sentences. Countries throughout Europe have shown that it does not work and that other things do. I really am tired of people coming forward with the same answer to a problem, which does not work. Therefore, I very much hope that my noble friend will say that this Government will not go on with this kind of answer. It will take time, money and resources to make sure that we have something which works, and we should learn from other countries which have found a way through, instead of repeating a failed policy.
My Lords, I would like to follow what the noble Lord has said. We have seen what works in this country. Indeed, a Conservative Government set up the intermediate treatment centres. I think the noble Lord, Lord Elton, very much led this work 30 years ago. I worked in one of those centres at that time. There was a male social worker and a female teacher, so the children and young people saw a model of a man and a woman in co-operation together, being courteous and respectful towards one another. There were six boys, ranging from eight to 15. The eldest was mad about motorbikes and was just about to get on a mechanics course. I saw these boys sitting down together sewing, with the teacher’s help. If you make the right kind of intervention, you can really turn these young people’s lives around. To put this in historical context, perhaps I may take my hat off to the coalition Government, as we have reduced the number of children and young people in prison in this country by 71% over the last seven or so years.
We have been through this process before. I remember that about 10 or 15 years ago, there was an outcry about mobile phone theft and various pushes to be tough on crime and tough on the causes of crime, but really being tough on crime was putting more and more young people in custody. What did we see there? A boy who had just entered care, on his first or second day in a children’s home, was with a group of children and one of them stole a mobile phone. He ended up in court and there were no suitable places for him in custody, so he was placed in an insecure prison and ended up hanging himself within two days. His mother has been grieving for him ever since. As a trustee of a mental health service for adolescents, we know that adolescents become more and more interested in their peer group. So when you send a child off to one of our young offender institutions or secure training centres, you send them into a peer group where they will get the best information about how to join a gang or be destructive.
On some occasions it may be necessary to do that, if they are too dangerous. But leave it to the judges and magistrates to decide that; do not tie their hands. I know there will be exceptions, but I suggest to your Lordships that we do not want to tie the judiciary’s hand in this case, and having mandatory sentencing is not helpful.
I have been a trustee of the Michael Sieff Foundation, which was set up around the time of the Children Act 1989. I had the privilege of working for several years with Dr Eileen Vizard, a forensic child psychiatrist who worked with the NSPCC. She made the point that, once the criminal justice system gets children into the secure estate, they are likely to keep on coming back, and so we should try not to get them in there.
I share the conviction of all the noble Lords who have spoken in Committee today. I hope that the Minister can give us some comfort in his response.
My Lords, Clause 8 provides an appropriate custodial sentence where a person is 16 years old or older and is convicted of the offence of possession of a corrosive substance in a public place in England and Wales and has at least one relevant previous conviction, as defined in Clause 9. We have made it a requirement that the court must impose an appropriate custodial sentence unless it decides that there are particular circumstances relating to the offence, the previous offence or the offender which would make it unjust to do so. We have defined an “appropriate custodial sentence” as a custodial sentence of at least six months’ imprisonment for an offender aged 18 or over. For an offender aged 16 or 17, we have defined an “appropriate custodial sentence” as being a detention and training order of at least four months’ duration.
The noble Baroness, Lady Meacher, referred specifically to Clause 8(2). It is not designed, as she suggested, to reflect the sentencing guidelines. The clause mirrors existing knife legislation and ensures that anyone aged 16 or over who is convicted of a second possession or similar offence, such as an offence relating to a knife, will receive a custodial sentence unless the court determines that there are appropriate circumstances not to do so. The use of appropriate custodial sentences will make it clear to individuals that we will not tolerate people carrying corrosives on our streets and other public places in circumstances which would enable them to cause injury or commit another offence, such as robbery.
Amendments 34 to 36 in the names of the noble Lords, Lord Ramsbotham and Lord Paddick, seek to confine these provisions to adult offenders. I understand why the noble Lords are proposing this but I really think—as do the Government, very firmly—that, given the nature of this particular form of offending and the appalling injuries it can cause, the minimum sentence should apply to 16 and 17 year-olds as well as to adults, as for the existing offence of possession of an offensive weapon in a public place. We fully recognise, however, that this cohort of young offenders should be treated differently from adult offenders. I have already indicated that for 16 and 17 year-olds the minimum sentence is a four-month detention and training order as opposed to six months’ imprisonment in the case of adult offenders.
In addition, for this age group, we have ensured that when considering whether there are particular circumstances which would make imposing an appropriate custodial sentence unjust, the court must have regard to its duty under Section 44 of the Children and Young Persons Act 1933. This relates in particular to the issues raised by the noble Baroness, Lady Meacher. Under that section, the court must have regard to the welfare of the children or young person, take steps to remove them from undesirable surroundings and ensure that proper provision is made for their education and training. We have also ensured that there are procedures for appeals in those circumstances where a relevant conviction, which was relied upon by the court to impose an appropriate custodial sentence, has been set aside on appeal.
I recognise that there are some Members of the Committee such as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, who object as a matter of principle to minimum sentences as provided for in Clause 8. I fully accept that the normal practice is for Parliament to set maximum sentences and leave it to the discretion of the court to determine the appropriate sentence, having regard to the facts of an individual case. However, there are already a number of exceptions to this rule, including, as I have said, in relation to second convictions for possession of an offensive weapon in a public place. We regard the possession of corrosive substances in a public place as equally serious and therefore deserving of the same sentencing framework.
As I have indicated, the requirement to impose the minimum sentence is not absolute and the provisions still allow for some judicial discretion. The court must still consider the particular circumstances of the case and, if there are relevant factors relating to the offence or the offender such that it would be unjust to impose the minimum sentence, the court has the latitude in such a case not to do so. That could be: where the seriousness of the offending falls far below a level deserving custody; strong personal mitigation of the defendant; or the undue impact that going into custody may have on others. In addition, the courts would have to consider the effect of a guilty plea. In the youth justice system, four months is the minimum detention and training order available, so any reduction would mean that a community order is imposed. It is important to emphasise that.
It remains a matter for the court to weigh up all the relevant aggravating and mitigating factors before deciding the appropriate sentence to impose, at or above that required by this clause, and subject to the question of it being unjust in all the circumstances which I have mentioned. In short, the Government are firmly of the view that in exceptional cases such as this, there is a place for minimum sentences in our sentencing framework. We are dealing here with repeat offenders who pose a particular risk to others and our communities, and the law and the courts should recognise this.
Finally, Amendment 37 deals with the test to be applied by an appellate court on any appeal against sentencing where the provisions of Clause 8 apply and a previous relevant conviction has been overturned. In any case where there was only one previous relevant conviction and that conviction was subsequently overturned on appeal, the criteria provided for in Clause 8(2) would not be relevant in the case of an appeal against sentence to which Clause 8(6) applies. Where the conditions requiring a court to impose a mandatory minimum sentence no longer apply after the fact, a court hearing an appeal against a sentence would be bound to quash it and pass a new sentence without regard to the provisions in Clause 8. Given this explanation, I hope that the noble Lord, Lord Ramsbotham, will withdraw his amendment and that the noble Baroness and the noble Lord, Lord Paddick, will support Clause 8 standing part of the Bill.
My Lords, I thank the Minister for his response. With regard to children and young people in local authority care, and young people leaving such care, might the courts not be given some guidance as to a more lenient treatment of them? I think we recognise the statistics on the high levels of children from care and care leavers in custody. We have a corporate parenting responsibility towards these young people. We know that over 60% of them enter care because of physical abuse or neglect on the part of their families, and that very few of them enter because of criminal or anti-social behaviour. Will the Minister consider giving guidance to the courts on our corporate parenting responsibility to these young people and, regarding their histories, should we consider giving them a more lenient approach in the courts?
My Lords, the noble Earl has often and rightly emphasised the vulnerability of children in care and young people leaving care. I fully accept that point. However, as he has heard, the provisions under the 1933 Act constitute a very considerable duty on the court to look at the pertaining circumstances of a case. He will also know that the Sentencing Council provides exactly the kind of guidance to which he alluded. If there is any more I can say on that, I will be happy to write to him. I am sure that the Sentencing Council will not be slow to follow up on any proposal emerging from the provision in the Bill.
Can you be very quick?
My Lords, I thank all noble Lords who have taken part in the debate on this amendment. I assure the Minister that this is not a matter of principle against short sentences. I have seen how ineffective they are. I know how ineffective they are, and I have been saying so for more than 20 years. It is not a question of principle; it is knowledge that they are ineffective. I fail to see why the Justice Secretary, who is against mandatory minimum sentences, is on one side saying one thing and then the Home Secretary is imposing yet more mandatory sentences on the other. I beg leave to withdraw the amendment, but I am sure we will return to it at a later stage.
Amendment 34 withdrawn.
Amendments 35 to 37 not moved.
Clause 8 agreed.
Clause 9 agreed.
Sitting suspended for a Division in the House.
38: After Clause 12, insert the following new Clause—
“Review of sections 1 to 12 and 31
The Secretary of State must each year, for the period of three years beginning with the year in which the last of the provisions in sections 1 to 12 and 31 of this Act come into force, lay before both Houses of Parliament a report reviewing the effectiveness of the measures contained in those sections.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a report each year for three years after the Bill comes into force reviewing the effectiveness of the provisions relating to corrosive substances.
My Lords, I will also speak to Amendment 39. I thank noble Lords for returning and doing me the courtesy of hearing this out. I really appreciate it and I will be very quick. The noble Baroness, Lady Meacher, put it very well—I wish she were still in her place—but I also feel very passionate about the victims of acid attacks and corrosive substance crime. I am a trustee of the Scar Free Foundation and I have met a lot of the victims, and I have been blown away by how these crimes have seemingly come out of nowhere and become a very big deal: there were nearly a thousand attacks last year. I am very much aware of how innovative criminals have quickly become, to get around the law and invent new crimes. I am aware that our responses have also got to be very quick as well. I applaud the speed at which the Home Office has reacted to this crime wave. I will not go through the list, but it is an impressive list and I completely endorse the approach.
We owe it to ourselves to recognise that this is an experimental approach: international data suggests that legislation on acid attacks is very difficult. It does not always work, so we should keep track of how this legislation proceeds and whether it is worth analysing its effectiveness and what is happening with the arrests that come out of this legislation. That is why I suggested these two amendments: so that in two or three years’ time, we are not left worrying whether we have been on the right track and so that we have the right data to be able to be able to fine-tune and make any changes to our approach.
My Lords, I support the noble Lord, Lord Bethell, in this, because so many things that were alleged about the inefficiency of various measures are unproven. For example, short sentences are said to be no deterrent. We do not know for certain, and therefore I support entirely a continuous review. We must have more data to be able to be more precise in the measures that we take.
My Lords, I am grateful to my noble friend Lord Bethell for setting out the rationale for these amendments. I understand his intention, but I hope to persuade him that there will be adequate reporting of the use of the new powers in the Bill relating to corrosive substances without the need for statutory provisions such as this. Once the offences in this Bill are brought into force, the collection of data regarding corrosives offences will be much more accessible for police forces and will allow for a much clearer picture to be presented on the extent of corrosive attacks and the corresponding law enforcement response.
My noble friend may be aware that we are already working with the police to improve how offences involving corrosives can be better captured in police data to help understand the scale of attacks. We have submitted a joint application, with the National Police Chiefs’ Council, to the police data requirements group to establish a new data collection requirement with respect to corrosive attacks as part of the annual data requirement on all forces in England and Wales. Subject to agreement, these would allow for regular publication as part of the Office for National Statistics quarterly crime statistics.
In relation to Amendment 38, I simply point out to my noble friend that all government legislation such as this is subject to post-legislative review five years after Royal Assent. In the intervening period, there are the usual arrangements for scrutinising government policies and the operating of new powers such as contained in this Bill. For example, it will be open to my noble friend to table periodic Written Questions or initiate a debate.
Given these established methods, I am not persuaded that we need a bespoke duty to report annually on aspects of this Bill. I fully accept that this is a serious issue, but I hope I have provided my noble friend with sufficient reassurance on the action that we are taking to address it and that, accordingly, he will be content to withdraw his amendment.
My Lords, the Minister puts it very persuasively and I am happy to withdraw the amendment.
Amendment 38 withdrawn.
Amendment 39 not moved.
Clause 13 agreed.
Committee adjourned at 8 pm.