Report (1st Day)
Clause 1: Sale and delivery of corrosive products
1: Clause 1, page 1, line 9, leave out first “all”
Member’s explanatory statement
This amendment, along with similar amendments to this Clause, amends the defence for the offence in this section to set a less demanding standard than all reasonable precautions / all due diligence.
My Lords, Amendment 1 is in my name and that of my noble friend Lord Paddick, as are all the other amendments in this group—Amendments 2, 15, 16, 25, 26, 64, 65, 67, 68, 70 to 73, 78 and 79—16 amendments, each deleting a three-letter word. The word is “all”, as in taking “all reasonable precautions” and exercising “all due diligence” in connection with the sale of corrosive products to someone under 18, in Clause 1; the sale of bladed articles to someone under 18, in Clause 15; and the delivery of bladed articles to residential premises, in Clause 18. These are defences to the offences contained in those clauses, so it is no minor matter.
The meaning of “all reasonable precautions” and “all due diligence” emerged in Committee. The noble Lord, Lord Lucas, raised it, others followed it up, and the noble and learned Lord, Lord Judge, said:
“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”.
Clearly, this is a very high bar, and it took a number of noble Lords somewhat by surprise, I think. I am unclear about what it might mean, particularly when coupled with “reasonableness”, because it is not just about doing the reasonable thing; it is about doing every reasonable thing. The Minister said in that debate:
“All roads are leading back to the guidance”,—[Official Report, 28/1/19; col. GC 163.]
having told the Committee that the Government want to produce guidance—we will debate that later—to ensure that retailers and sellers know what steps they could take, with regard to Clause 1, to ensure that they comply with the law. On the wording, is it about steps that they can take or steps that they must take? It seems to me that the wording used throughout the Bill does not allow for common-sense alternatives or even minor omissions. Of course, guidance is produced by the Executive, not by Parliament. Indeed, to end with a question, will one necessarily have complied with the law, even if one follows guidance to the letter, if all reasonable precautions and all due diligence have to be applied? I beg to move.
My Lords, as the noble Baroness explained, these amendments relate to the level of burden of proof required for retailers and delivery companies if they want to avail themselves of the defences available to them if charged with an offence of selling or delivering a corrosive product or a bladed article to an under-18 or the offence of delivering a corrosive product or bladed article to a residential address. Under these amendments, retailers and delivery companies would need to prove just that they had taken reasonable precautions and exercised due diligence to avoid the commission of the relevant offence, rather than, as the Bill provides, that they took all reasonable precautions and exercised all due diligence, as the noble Baroness explained.
I am not persuaded, despite the noble Baroness’s words, that it is unjust to require a person to prove that they have taken all reasonable precautions and exercised all due diligence to avoid selling or delivering corrosive products or bladed articles to under-18s or to avoid delivering such products or articles to residential premises. Retailers have had to operate to this standard under existing law and to lower the burden of proof would leave us with a burden of proof in the Bill that was out of sync with existing legislation. I will give some examples.
Under Section 141A(4) of the Criminal Justice Act 1988, it is a defence for someone charged with the offence of selling a knife to an under-18 if they can prove that they,
“took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”.
The Licensing Act 2003 requires a defendant to prove that,
“he had taken all reasonable steps to establish the individual’s age”,
in regard to the selling of alcohol to an under-18. Under Section 7 of the Children and Young Persons Act 1933, which prohibits the sale of tobacco to under-18s, the defence is in similar terms. Part 4 of the Gambling Act 2005 includes various offences in relation to children; under Section 63, it is a defence to show that the defendant “took all reasonable steps”.
As a result of these examples in law, I urge that the higher burden of proof is an established defence, and one which has been in place for a significant amount of time without issue. Retailers now know what is required of them by way of proof if they wish to make use of the defence if charged with the offence of selling a knife or bladed article to an under-18. It is understood by retailers, Trading Standards and the police. Having two different burdens of proof in place would, I think, be confusing to all concerned. I do not think it would help the police, Trading Standards officers, prosecutors or the courts. Noble Lords are always calling for consistency, and I think there is a strong argument for consistency here. I hope that, on reflection, the noble Baroness, Lady Hamwee, would agree and be happy to withdraw the amendment.
My Lords, it is certainly a burden in the sense of the weight of it rather than the balance of it, which is how we normally consider the burden of proof. The Minister says that retailers now know. My question was whether they will know from the guidance that is to be produced. I shall have to leave that hanging, as this is the point that we are at. Maybe the Minister will be able to answer that when we come to the next group and talk about guidance. Perhaps we will also have to wait for an answer on whether guidance across all the offences—not just those within this Bill but others that the Minister mentioned—will be consistent. Clearly, we are not going to be of the same mind here but I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendment 2 not moved.
3: Clause 1, page 1, line 10, at end insert—
“( ) The Secretary of State must, within one month of the coming into force of this section, publish guidance as to how the requirements of the defence under subsection (2) may be fulfilled.”Member’s explanatory statement
This amendment, following the Minister's remarks at Committee stage (28 January, HL Deb, col 160GC), is intended to ensure that guidance will be issued, so that those responsible for designing and carrying out checking procedures will be able to judge their adequacy.
My Lords, the noble Lord, Lord Lucas, is unable to be here but has asked me to move this amendment on his behalf so that we may get the matter on the record. However, I will not speak to Amendment 81, which is in this group and also in his name, because he will get the opportunity to do so if we leave it to be discussed in sequence on the next day of Report.
The amendment seeks guidance. We have government amendments in this group, and no doubt the answer to Amendment 3 is Amendment 106. In the Government’s amendment, the guidance is about a large number of offences relating to various sections in legislation, including Clause 1 of this Bill, and therefore it covers a wide area. Guidance can be very helpful—it sounds as though it will be essential here—but, as I have said before, it should not take the place of clear primary legislation. It is executive, not legislative. I beg to move.
My Lords, Amendment 3 in the name of the noble Lord, Lord Lucas, and moved by the noble Baroness, Lady Hamwee, and the noble Lord’s Amendment 81, which he will speak to himself when we come to that point in the Bill, ask the Secretary of State to issue guidance. We are placing burdens on shop workers and delivery drivers, and it is incumbent on the Government to issue proper guidance. I know that we have the government amendments and I look forward to the Minister setting them out, as we have a situation where people can be prosecuted and end up in prison, so we need to make sure that they understand their responsibilities. I look forward to the Minister setting that out for the House.
My Lords, I think that a bit of certainty here is essential. One of the problems that exist elsewhere is uncertainty surrounding what is going to be required. It is very difficult for traders if they do not know what part they are going to play. However, when we come to the next amendment I will say something about that which I think will be helpful.
I thank noble Lords for their comments. I agree that, as the noble Lord, Lord Kennedy, and the noble Earl, Lord Erroll, pointed out, people have to understand their responsibilities. In Committee there was much debate about the need for guidance, particularly for retailers, manufacturers, delivery companies and the like, about the operation of the provisions in the Bill relating to the sale and delivery of corrosive products and offensive weapons.
In response to the debate in Committee, I said that it was our intention to issue appropriate guidance. A number of noble Lords, including my noble friend Lord Lucas, wanted to see that commitment reflected in the Bill, and government Amendment 106 does just that. It enables the Home Secretary, Scottish Ministers and the Northern Ireland Department of Justice, as the case may be, to issue guidance about the provisions in the Bill, and the existing law as amended by the Bill, relating to corrosives and offensive weapons.
Importantly, the amendment also sets out that, before guidance is published, the relevant national authority must consult,
“such persons likely to be affected by it as the authority considers appropriate”.
We would, for example, expect to consult organisations representing both small and large retailers of knives and corrosive products. This would ensure that those directly impacted by these measures have a hand in developing the guidance that is most useful to them. That is an important part of the Bill.
Were he in his place, I hope that my noble friend Lord Lucas would agree that government Amendment 106 covers similar ground to his Amendments 3 and 81 and, indeed, provides a more comprehensive list of the provisions where it might be appropriate to issue guidance. Government Amendments 108, 112 and 113 are consequential to Amendment 106. I hope that on that basis the noble Baroness will be content to withdraw Amendment 3 and support the government amendments.
My Lords, I am indeed. I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
4: Clause 1, page 1, line 19, after second “if” insert “they used a prescribed electronic method of establishing the purchaser’s age, or”
Member’s explanatory statement
This amendment is intended to enable the Bill to encompass such electronic systems of age verification as Yoti once those systems have passed scrutiny by the Home Office, as a way of addressing age verification challenges.
My Lords, on behalf of the noble Lord, Lord Lucas, and at his request, I move Amendment 4 and shall speak also to Amendment 69 in this group.
Amendment 4 is intended to enable the Bill to encompass electronic systems of age verification such as Yoti, once those systems have passed scrutiny by the Home Office, as a way of addressing age verification challenges. With regard to Amendment 69, the Bill requires retailers to undertake age verification online and offline. In the absence of recognised standards against which online or offline age verification schemes can be audited and recognised, this amendment allows retailers to comply with the requirements of the Bill through any scheme they choose which is recognised by the Secretary of State. I beg to move.
My Lords, Amendments 4 and 69, moved by the noble Lord, Lord Paddick, on behalf of the noble Lord, Lord Lucas, raise the issue of age verification. Our world is becoming more digital and, when age verification can be done digitally, it should obviously be done in that way. That might not be possible yet but it is becoming easier and, if it can be done, it certainly should be. I have to admit that I had never heard of Yoti. Perhaps I am showing my age but I had absolutely no idea what it was. However, I have learned something today. Amendment 69 would provide for schemes to be recognised by the Secretary of State as suitable for this purpose and would provide for the maintenance and updating of a list of those schemes. That seems sensible and I certainly support the amendments.
My Lords, I want to say a couple of things about this as I have been involved in this area for some time as a result of the Digital Economy Act, which raised exactly the same challenge of trying to check people’s ages. As a result, a lot of work has gone into doing this online or electronically. We can use technology to make this work and that technology exists now.
The great thing is that most young people now have a smartphone, which checks that the correct person is using it as many people now access their phone using a fingerprint or another biometric, such as face recognition. Many of your Lordships probably have a mobile smartphone issued by the House which they unlock with their thumb print, so it is possible to know whose phone it is. Therefore, that can work, and several age check providers—not just the one mentioned, although it is one of the leading ones—are experts in establishing proof of age. They will check people.
A lot of young people will establish their age when they first register if that is the only way that they can operate in the future. They will be checked against another document or something else, so the age check providers know how to do that. When it comes to proving their age to someone else, they do not have to release any personal details; it can be proved on their smartphone or online. What is released is not proof of age but the result of the age check, and a certificate can be issued to show that that has been done.
Therefore, there are several solutions. As I have mentioned before, if noble Lords want to see what they are like, they can go to dpatechgateway.co.uk. If they want to, noble Lords can see that in Hansard later. You can look at and try several solutions there and see how easy they are: these solutions will work very easily online and at the point of delivery by using the recipient’s mobile or similar technology. They are all compliant with the British Standards Institution’s Publicly Available Specification 1296, which goes into exactly how to do this and how to verify that people have done it properly. It also has addenda about privacy and everything like that. I know this because I chaired the steering group—I suppose this is an interest, but I did not get paid for it.
It frustrates me that the technology is there and this Bill says that,
“the accused is to be treated as having taken reasonable steps to establish the purchaser’s age if and only if … the accused was shown any of the documents mentioned in subsection (5)”.
The first two of those are “a passport” and,
“a European Union photocard driving licence”.
I suppose that becomes a problem in a few months’ time—or a few years’ time—because I do not know if the UK photocard licence will be good enough. The list continues:
“such other document, or a document of such other description, as the Scottish Ministers may prescribe by order”.
Does that apply to things in England as well if one Scottish Minister okays it—“The English can use that too”—or are we stuck with a passport? How many people over 18 do not have a passport? The Home Office could enter the 21st century and start to realise that this stuff can be done much more effectively using modern technology. We know that not all passports are genuine. We can move to better standards than are prescribed in this Bill.
I am grateful to the noble Lord, Lord Paddick, for moving this amendment in the absence of my noble friend Lord Lucas. The two amendments allow us to consider the merits of prescribing one or more specific electronic methods for establishing the age of a purchaser of a corrosive product or bladed article as an alternative to the examination of official documents such as a passport or driving licence.
Amendment 4 would enable an electronic method of age verification to be prescribed solely for use in Scotland. I assume this is because Clause 1 imposes particular requirements on retailers in Scotland if they wish to benefit from the defence of having taken reasonable steps to establish the purchaser’s age. In Scotland, in line with a number of existing age verification laws that operate in that part of the UK, a retailer is obliged to establish a purchaser’s age by examining his or her passport, photocard driving licence or other document, as prescribed by the Scottish Ministers. There is no such requirement in England and Wales and Northern Ireland. Consequently, Clause 1 would not preclude the use of electronic age verification technology.
The age verification requirements as they apply to Scotland have been discussed and agreed with the Scottish Government and are intended to reflect the law as it currently applies to other age-restricted products. We have drawn the Scottish Government’s attention to my noble friend’s amendment and will ensure that they have sight of this debate. However, they have advised that they would prefer any steps in this area to be taken on a consistent basis across all age verification provisions. As such, they have advised that we should be wary of introducing in this Bill new procedures on a piecemeal basis that disturb wider current age verification procedures related to the sale of age-restricted products in Scotland.
In short, I commend the development of technological solutions to age verification. I am sure that this is something that the Scottish Government will want to look at in future. However, any change to the current arrangements regarding age-restricted products in Scotland should be considered across the piece and not in isolation. As I have said, we will draw the Scottish Government’s attention to this debate.
Amendment 69 would require the Secretary of State to publish and maintain a list of systems assessed as suitable for online and offline age verification. Again, I recognise the place for the use of technology to verify the age of a person seeking to purchase age-restricted products, as a number of noble Lords have mentioned. However, I have concerns about what is proposed here.
I am sure noble Lords would accept that Government cannot be seen to be endorsing one or more proprietary age verification systems over others. There are different types of age verification systems available and a number of different providers. The technology behind these systems is continuing to develop at a very fast pace. There is a danger that, if we prescribe a specific electronic method for age verification, this could quickly be overtaken by technological innovations.
I am also concerned about the appropriateness of the Government telling retailers what age verification systems they should procure and use. Technology-based systems may be right for some retailers but not all. It is for retailers and businesses to decide what system works best for their business models and will allow them to demonstrate that they took all reasonable precautions and exercised all due diligence to prevent the sale and delivery of corrosive products or bladed articles to under-18s.
Furthermore, we need to remember that there are already established policies in place through Challenge 21 or Challenge 25 which allow customers to provide different forms of ID to prove their age, such as a passport or photocard driving licence. I recognise that these amendments are not intended to mandate the use of an electronic age verification system and rule out the continued examination of physical documents. Retailers and customers alike may want a range of different options available.
I am not convinced that requiring the Secretary of State to assess, publish and maintain a list of age verification systems is the right approach. In effect, the Government would be saying that particular systems were appropriate for the sale of bladed articles when there are others available on the market and in use with other age-restricted products.
As I have already said on Amendment 4, there needs to be a consistent approach across all age-restricted provisions, otherwise I fear we will be in danger of setting different standards or specifications for different age-restricted products. This is not the right approach in the absence of national standards. That is not to say that we cannot provide some guidance to retailers in this area: government Amendment 106, which we have just debated, will enable us to do just that.
In the light of this explanation and my undertaking to explore how to address age verification in the proposed statutory guidance, I hope that the noble Lord will be content to withdraw Amendment 4.
Before the noble Baroness sits down, I would like to correct her: there is a British standard. As I mentioned, it is PAS 1296. It is technology independent, does not specify anything and is written to be as future-proof as possible. I recommend it to her as some bedside reading to bring her into the 21st century.
I will certainly do that. I reassure the noble Lord that I did go to dpatechgateway.co.uk, so my bedside reading is now complete.
I thank the Minister for her explanation, although I am a little confused. My understanding is that, as part of compulsory age verification for access to online pornography, there is a list of age verification systems endorsed by the British Board of Film Classification on the Government’s behalf, and that these online pornography sites have to comply with the restrictions that the BBFC imposes in line with government instructions. Therefore, there is some age verification that relies on electronic systems, so a lot of what the Minister says seems to contradict what is happening in another part of the Government, the DCMS.
I thank other noble Lords for speaking to these amendments. The noble Lord, Lord Lucas, wanted the Government’s response on the record. We now have this, so I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
5: Clause 1, page 2, line 15, leave out from “Wales,” to end of line 16 and insert “to a fine”
Member’s explanatory statement
This amendment, along with other amendments to this Clause, would remove the short term prison sentences from the offence in this section.
My Lords, in moving Amendment 5 in my name and that of my noble friend Lord Paddick, I shall speak also to Amendments 6, 7, 20, 21, 22, 28, 29, 30, 31, 32 and 34.
For most of us in society, the idea of going to prison for even a short amount of time, with the loss of liberty that that entails, is a real deterrent. But that thinking fails to get into the mindset of many of today’s criminals, who may be reckless or who may not fear prison because they have friends and family who have done time. Perhaps their lives are so chaotic that, in the scheme of things, prison does not seem so bad. That is true of no group more than those serving the shortest sentences. It was recently said:
“In the last five years, just over a quarter of a million custodial sentences have been given to offenders for six months or less; over 300,000 sentences were for 12 months or less. But nearly two thirds of those offenders go on to commit a further crime within a year of being released. 27% of all reoffending is committed by people who have served short sentences of 12 months or less. For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working”.
By now noble Lords may have recognised the source of this quotation. The speaker went on to say that,
“there is a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place a robust community order regime. Let’s be honest. The public will always want to prioritise schools or hospitals over the criminal justice system when it comes to public spending. But where we do spend on the criminal justice system, we must spend on what works. Why would we spend taxpayers’ money doing what we know doesn’t work, and indeed, makes us less safe? We shouldn’t”.
Thank you, Justice Secretary, for putting the case so well.
I commented at the last stage of this Bill that, not so long ago, the Home Office and the MoJ were a single department. It was too big, but it is a great pity that thinking has moved so far apart that one department is now legislating for a sanction which the other considers unproductive.
These amendments would remove the sanction of short-term imprisonment for up to 51 weeks—the same points apply as those made by Mr Gauke in his speech a few days ago. We are dealing with various offences: the sale of corrosives to under-18s, the delivery of corrosives to residential premises and having the corrosive in a public place. We would have preferred to focus on robust community sentences, but we learned during the last stage that they can be applied only as an alternative to a custodial sentence. In my view, that needs updating—but that is for another day. I hope that the Government might address this: otherwise, we will do so at a suitable opportunity.
In Committee, it was said, understandably, that victims feel let down because community sentences do not have the same weight and are ineffective. That is an important issue, which should be addressed by the robustness of community sentences. I have heard over the years that a tough community sentence is much harder than custody.
The offences in question are rather difficult. The first two that I mentioned are likely to be committed by adults. Being found to have committed a criminal offence and being fined, which is what our amendments would achieve, would have a serious impact on the offender as an employee—or possibly, in the circumstances, as an ex-employee. The third offence may be committed by an adult but also by a child. The arguments about custodial sentences being rather good at fitting someone for a life of crime particularly apply.
The Minister in Committee talked about the significant harm that corrosive products can cause if misused. The offences in question, which are the subject of these amendments, are not about the use of corrosives as a weapon. We are not seeking to minimise or make light of the harm that corrosives can cause; that is not the point. The Minister will also say that the court has discretion as to disposal, which is of course true up to a point.
That takes me to Clauses 8 and 9—the subject of the last two amendments in this group—which we would leave out. They require particular, mandatory sentences. Clause 8 applies to, among others, children over 16 who have one previous relevant conviction. We are concerned about the age threshold, for reasons that we went into fairly extensively at the last stage and which, I suspect, other noble Lords may raise today. I say in advance that I will probably agree with them. We have an in-principle objection to mandatory sentences. The Minister described them as providing the appropriate custodial sentence. But is not “appropriate” something that the court should determine? We may have criticisms of pre-sentence reports and so on, but the court is looking at both the offence and the offender; those taken together will lead the court to take a view on what is appropriate.
In Committee, we explained our opposition to the application to under-18s—I felt then, and still feel, that Clause 8(4) is inadequate. It is, if I may put it this way, the legislative equivalent of lip service that,
“the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933”.
The text refers back to Clause 8(2), which tells the court that if it is,
“of the opinion that there are particular circumstances”,
it can take a different course. But the circumstances here are that the person is under 18. So how does having regard to the welfare of the child or young person actually work? Does it mean that one child is more resilient than another, that one offence is less serious than another, or that the circumstances make custody “unjust”? This is what discretion in sentencing is about, and these Benches prefer judicial discretion to executive sentencing. I beg to move.
My Lords, I am going to say some contradictory things on this amendment—I have spent a career doing that, so it is perhaps not that unusual. Fundamentally, I think we probably need fewer people in prison. We could probably manage with half the number we have now. The question might be how we get there. As the noble Baroness, Lady Hamwee, mentioned, the Government have said that they would like to have less use—if not no use—of short sentences, so this seems a little contradictory. I would not do that myself; I would find other measures to reduce the prison population. That would probably mean releasing people at the end of their sentence rather than not putting them in there in the first place should it be deemed that they have committed a serious offence.
Here we should come back to the idea that prison is needed as a sanction in these cases; I think that it is relevant. There is no doubt that prison is not helpful for recidivism. All the evidence shows that, when people go to prison, some 80% reoffend within two years of their release. The most effective mechanism for reducing recidivism is called a police caution: broadly, 70% of those who offend never reoffend when they have received a police caution. So prison on the whole will not help with recidivism, but of course while offenders are in there, they will not attack members of the public—although they might attack each other.
The offences here are serious enough for prison at least to be considered. There would obviously then be a debate on how long the sentences should be. If the Government do decide to exclude short sentences, either on this occasion or as a general policy, that would also exclude things like weekend sentences, which would help reduce the prison population. They can be a very constructive way of reintegrating someone after a long sentence, or they can be an alternative to a short sentence.
Short-term imprisonment can be effective, and certainly I would not exclude it altogether. I support the Government in having a prison sentence available, with the challenge pointed out by the noble Baroness, Lady Hamwee, that the younger the offender, the less likely they are to be imprisoned, which I think is quite appropriate.
The biggest problem we have at the moment is that the large increase we have seen in knife crime has found more young victims and more young offenders, so we do have to send a clear message. It is not unique, although it is unusual, to have a minimum sentence, but anybody over the age of 18 in possession of a firearm will go to prison for five years on first conviction. That is a very clear message that is understood by those who are likely to carry a firearm. I am afraid that we need to send a similar message to those who carry knives, because the culture at the moment is that people feel it is okay to do so—and presumably okay to sell people knives or corrosive substances which they then go on to reoffend with. It is important to send a message as well as to give individual sanctions in these cases.
My Lords, I too want to say something controversial, which I think the noble Lord, Lord Hogan-Howe, will find more controversial than most. I was convinced, 35 years ago, on incontrovertible evidence, that a course of non-custodial treatment was more effective than a custodial sentence in curing people of crime. The people in question were young people, and since then I have devoted a great deal of my life to trying to stop young people getting into crime. For three years I was in charge of the Prison Service, and nothing that I saw there changed my mind. Thereafter, I became chairman of the National Fund for Intermediate Treatment, the function of which was to provide excellent treatment in the community for offenders, which was monitored. When government funding was withdrawn, I founded a charity to do the same thing.
Non-custodial treatment must be done properly—it is not about turning up and ticking in a book or sweeping the street; what you need is an experience that the young person has not had before. In a frighteningly high percentage of cases, what these courses—or whatever you like to call them—provide is the first experience a young person has of an adult who actually cares what they are doing and what they are doing with their lives, and that has an electric effect. It cannot be produced in custody. It can be produced in outward bound programmes, in a jazz band or in whitewater rafting. It depends on the adult and young person’s relationship. It works, it is far cheaper than custody and far more effective. I echo the words of the Secretary of State for Justice in support, which are powerful evidence:
“Why would we spend taxpayers’ money doing what we know does not work, and indeed, that makes us less safe?”
That is what is being advocated. I do not often fall in step with noble Lords sitting on the Benches opposite, but on this occasion, my lifetime’s experience means that I have to support them.
My Lords, I support these amendments. The one thing we know about short sentences is that people do not receive any education, training, therapy—anything at all, in fact, because, well, they are not there long enough to benefit. Therefore, as the noble Lord said, why on earth do we spend all this money only to create hardened criminals? I very strongly support these amendments.
My Lords, I too support the amendments. I was at the speech given by the Secretary of State for Justice last Monday, in which he said that in the last five years, there have been just over 250,000 custodial sentences of six months or less, and over 300,000 of 12 months or less. He went on to say that nearly two-thirds of the offenders had gone on to commit further crime within a year of being released. He also said that the Government were now taking a more punitive approach than at any time during the Thatcher years, which I thought was a strange admission from him. I wrote to him pointing out that this Bill appears to be him against the Home Secretary, and he replied today that “work in the area will require careful collaboration with other government departments to ensure a consistent approach to sentencing reform which reflects my ambitions and, most importantly, keeps the public safe”.
Everything has been said about the growing body of evidence that diverting children away from the formal justice system is more effective at reducing offending than punitive responses, and I agree very much with the noble Lord, Lord Elton, on that. I also deplore the removing of judicial discretion, which works against the Sentencing Council’s guidelines. The UN Convention on the Rights of the Child resolved that the interests of the children must be placed first. Mandatory short prison sentences have been proved to be ineffective—I have seen them to be ineffective—because, as the noble Baroness, Lady Meacher, said, there is nothing happening in any young offender institution which is worth the while, and if people are there for a short time, nobody has time to establish their needs, let alone tackle them. Therefore, I strongly support the amendments.
My Lords, I also support these amendments, particularly Amendment 32, which would remove Clause 8. I worked in an intermediate treatment centre many years ago. It was an astounding institution. May I say how grateful I am to the noble Lord, Lord Elton, for leading this extraordinary work?
I am a trustee of a mental health service for adolescents, a charity that works with a local youth offending team, and also works in schools with young men, mostly BAME boys with behavioural issues. It is called Sport and Thought, and it can transform lives; teachers are shocked at the difference that this intervention can make. It involves working with a therapist and a football coach. There are such good and effective ways of turning these young peoples’ lives around, so I really do share the concerns voiced.
Crispin Blunt, the former Parliamentary Under-Secretary of State for Prisons and Youth Justice, was speaking at an open meeting three weeks ago. I raised the question of mandatory sentencing. He said that it does not work, it inflates the numbers of people going into prison and is completely counterproductive. To have mandatory sentencing for 16 and 17 year-olds is against logic.
We must remember where we came from. About 10 years ago, we had 3,000 children in custody, by far the largest number in Europe. All parties were very concerned about this, and thanks to the work of the coalition Government, we reduced it to 1,000. We do not want to go back there. I recognise the deep concerns about this terrible offence of throwing corrosive substances at people. Yes, there must be a robust response, but in trying to protect children from these offences, let us not put them in harm’s way.
I visited a prison four or five years ago with the chair of the Youth Justice Board for England and Wales. She said that because we had been so effective at reducing the numbers of children in custody, those in prison now are the very toughest and most challenging children. She said that by obliging courts to put many of the children subject to this offence into custody, they are very likely to be bullied or to traumatise themselves. It makes them into more hardened criminals in the longer term if we do this.
I have to think about our responsibility in this area. It is very easy to appoint blame but let us look at the very high rate of exclusions from schools at the moment. I think that we are still waiting for Mr Timpson’s report, but when children are excluded from school, they are so much more likely to get involved in this sort of activity. Look at the cuts in funding for early intervention services; as an officer of the All-party Parliamentary Group for Children, I know very well how all those important services for supporting families have been deeply cut, due to understandable financial and economic circumstances—but they have been cut to the bone. So many children’s centres have been closed down.
Another issue, which perhaps does not get talked about enough, is that many of these children—many boys—are growing up without fathers. In certain ethnic groups, 60% of these boys grow up without fathers in the home. My noble friend Lord Hogan-Howe was talking about investing more in mentors for such young people, which can make a huge difference in their lives.
When dealing with challenging young people, my experience from a long time of working with troubled adolescents is always that it is so tempting to come in hard, perhaps if you are working in a children’s home and a child provokes you. The extreme is known as pin down, where one might chain children to beds or whatever. It is always tempting to come in hard but the thoughtful, considerate, effective professionals stand back and try to be dispassionate. They try to do what is most effective, not what appeals most to the emotions.
I recognise the difficulty that the Government are in and that they wish to make a robust response, but perhaps they might listen to the advice of the noble Lord, Lord Elton. I strongly support Amendment 32, which would remove Clause 8 from the Bill.
My Lords, I am happy to support the noble Lord’s amendments today. The noble Baroness wants to stop short sentences; debates are going on now in the country about those. We have heard the quote from David Gauke, the Justice Secretary, who wants to reduce these short sentences and the prison population. I agree with him, and with the noble Lord, Lord Hogan-Howe, that we need many fewer people in prison. The problem we have is that for the court to be able to impose a community penalty, there must be an option of imprisonment for it to impose. I am a supporter of the greater use of community penalties, but they have to be of a standard that challenges the offending behaviour and helps with the rehabilitation of the offender; otherwise, they have no effect whatever. I agree very much with the noble Lord, Lord Elton, about the importance of these penalties being effective.
Many years ago, I was a magistrate and served on the Coventry bench when I lived in the Midlands. We would often get people coming back into the court who had breached or not delivered on their order. When you talked to them, all they would say is, “I was given X number of hours as a community penalty. I have now turned up for three Saturdays in a row and no one is there to actually see me, so I’ve booked the day off—or I might be given an hour and then sent home”. They got to the point of thinking, “I’m not going to come back again”, because they turned up and it was a complete waste of time. So if we are to have a community penalty, it has to be rigorous and challenge the offending behaviour. We cannot have a situation where people turn up and have nothing to do. That is very important.
I also spent a bit of time recently with the Met Police in Greenwich. There is a really good unit there that works with young people who are on the edge of falling into criminality. The unit works with these people and has made a tremendous change to them. When they work with them, you can see the change. As other noble Lords have said, it is probably the first time that an adult has taken any interest in them whatsoever. That has an effect. I met some of the older young people whose lives have been changed and were now helping the younger people. They said, “Yes, it was PC so-and-so who helped me to turn things around”. Lots of good work is going on but it has to be meaningful. People are not going to turn up each day if it is a complete waste of time; we cannot have that.
For the present, however, we have to leave these matters for the courts to decide. As the noble Baroness, Lady Hamwee, said, we may need to think about decoupling community sentences from prison sentences, so that they can impose a community penalty. That would of course require us to amend the Criminal Justice Act 2003, and I hope the Government will consider that. We might bring that back at a future date because it could give us the chance to do other things. Given the amendments before us, I do not think that fines are necessarily the right thing. The courts need to have a suite of things but if we could decouple those, it would certainly be progress. I look forward to the Minister’s response.
I thank noble Lords who have spoken to these amendments, which are about the use of short custodial sentences and minimum custodial sentences. I have reflected on the concerns raised in Committee by noble Lords but I remain of the view that there is—as noble Lords have reiterated today—a place for custodial sentences as part of the range of penalties available to the court for the offences in the Bill. The noble Lords, Lord Hogan-Howe and Lord Kennedy, articulated that.
In Committee, I stressed the significant harm and injuries that corrosive products can cause if they are misused as a weapon to attack someone. We are talking about a serious offence, one for which the use of custody should be available to the courts in certain circumstances. I was very grateful to the noble and learned Lord, Lord Judge, who is not in his place today, when he made the point in Committee that custodial sentences have a place when dealing with specific types of offenders. He referenced cases where a retailer has repeatedly sold a corrosive product to under-18s and may have already been subject to a community sentence. That is one set of circumstances; there may be others where the offending is so serious that only a custodial penalty should be imposed.
In the earlier debate the noble Lord, Lord Kennedy, was concerned that a range of different sentencing options is available to the courts. I want to stress that by providing custody as a maximum penalty, we are providing the courts with a range of sentencing options from custody through to a fine, or both. This means, to speak to the points made by my noble friend Lord Elton, the noble Baroness, Lady Meacher, and the noble Earl, Lord Listowel, that the courts will also have the option to impose a community sentence. As the noble Lord, Lord Kennedy, said, the application of these sentences has to be meaningful, but they can be imposed if they are the most appropriate sentence, taking into account all the circumstances of the offender and the offence. As I said in Committee, there is also a 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. We can have every confidence that the courts will sentence offenders appropriately, based on the circumstances of the offender and the offence.
Can my noble friend assist me? I ask forgiveness for my ignorance but as I read subsection (7), it says:
“A person guilty of an offence … on summary conviction in England and Wales”,
is liable to be imprisoned,
“for a term not exceeding 51 weeks, to a fine or to both”.
There is no reference to any other treatment or sentence. My noble friend said that there was access to that; I would be grateful if she could tell me how it died.
I do not know whether my noble friend was in Committee, but when the amendment on having just a community sentence was moved, we discussed the fact that when there is the possibility of a custodial sentence, it is open to the courts to impose that or a lesser sentence such as a community sentence, which can have the conditions that the noble Lord, Lord Kennedy, and my noble friend referred to earlier. It is open to the courts to have some flexibility over what the penalty should be, as it relates to the particular offence that has been committed. We also discussed in Committee that under the Criminal Justice Act 2003, the court has to be satisfied that the offence is so serious that only a custodial sentence can be justified. I hope and think that we can have confidence that the courts will sentence offenders appropriately, based on the circumstances of both the offence and the offender.
If I may trouble my noble friend once more, as I read it, they are prohibited from applying a sentence of more than the time specified in the Act. My objection is to exactly that: the short duration. If there has to be custody, it needs to be long enough for the person to be assessed, treated and known properly. Six months does not do it.
My noble friend is absolutely right about the maximum sentence, but alights on an important aspect of someone’s rehabilitation, which is not just about the custodial sentence—it is about all the other interventions that go with it, both while that person is in custody and upon release.
The other difficulty with the amendments is the damage that they do in undermining the steps we have taken in the Bill to ensure consistency, regarding the maximum penalty available to the courts when dealing with offences relating to the sale to a person under 18 of corrosive products on one hand, and of a knife or bladed article on the other. When the Bill was considered in Committee in the Commons, there was strong support from the Opposition for a consistent approach to be taken.
I am well aware of concerns about individual retail staff or delivery drivers being prosecuted, and the impact that would have on them. However, the experience from other age-restricted products is that in many cases it would be the company selling the product or arranging its delivery that would be prosecuted. There could be occasions when it might be a shop worker who was prosecuted, but it is more likely 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. Where it is the company that is 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 Minister mentions an interesting point, about the company being prosecuted, and then talked about the range of penalties. Would it be an individual, such as the chief executive, managing director or personnel director, who would be prosecuted?
In precedence for these sorts of cases, it is quite often the company that is prosecuted, with a fine—of a range—imposed on it. Obviously, if an individual is prosecuted, the full range of penalties should be available.
When we had the debate before, I think it was suggested by one of the Minister’s noble friends that when health and safety law changed and responsibility was brought to bear on company directors, all of a sudden health and safety improved dramatically in this country. If the company directors or chief executive were more liable, the training they gave to their staff might dramatically improve.
The prosecution may well fall on a director, because the director is seen to have fallen short in some of the processes to comply with the law. However, yes, it is usually the corporate body rather than the director, but I see the noble Lord’s point.
We have heard that there is evidence that short sentences are ineffectual regarding rehabilitation. The Justice Secretary and Prisons Minister are looking at the question of short sentences and the use of prison in the round. A number of noble Lords have raised that; the noble Baroness, Lady Hamwee, quoted the Justice Secretary in a speech on this very subject.
We have already been clear that custodial sentences should be seen as a last resort, and that offenders with complex needs—including female offenders—should be dealt with in the community wherever possible. However, we must ensure that sentencing matches the severity of a crime, and prison must always be available for the most serious offenders. I am concerned that we do not send out the wrong message that the use of corrosives as a weapon is somehow less serious than the use of knives.
Amendments 32 and 34 seek to strike out the provisions in respect of mandatory minimum sentences in Clauses 8 and 9. Again, the effect would be to treat carrying corrosive substances in a public place less seriously than carrying a knife. These clauses mirror existing knife legislation, and ensure that anyone aged 16 or over who is convicted of a second possession offence or a 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 minimum custodial sentences will make it clear to individuals that we will not tolerate people carrying corrosives on our streets and other public places with the intention to harm or commit other crimes, such as robbery.
We are talking about serious offences here, where someone is carrying a corrosive substance which could result in someone being attacked and left with terrible injuries, as well as the fear that this can instil into communities. We should bear in mind that the requirement to impose the minimum sentence is not absolute; there is judicial discretion. The court must consider the circumstances of the case, and if there are relevant factors that would make it unjust to impose the minimum sentence, the court has the latitude not to do so.
I recognise that there is a wider debate to be had about our sentencing framework, but this Bill is not the place for it. We are dealing here with particular offences and seeking to ensure consistency between how the criminal law deals with the sale, delivery and possession of corrosive products and substances on one hand, and of knives and offensive weapons on the other. On that basis, I hope that I have been able to persuade the noble Baroness to withdraw her amendment. If not, I invite the House to agree that for these offences, short custodial sentences and minimum custodial sentences continue to have a place, and that noble Lords will accordingly reject the amendment.
I am grateful to all noble Lords who have contributed. The noble Lord, Lord Hogan-Howe, may not expect me to be grateful, but I am. His raising the issue of weekend sentences was very interesting, and confirms what has come from a number of noble Lords—that the legislation around sentencing generally needs a good look at and some updating to how it operates. Even if you take a firm position one way or the other regarding short sentences, the way that the provisions in legislation interact is clearly troubling a number of noble Lords.
I do not want to respond to all the points made and repeat what I have already said. I am sure that the noble Lord, Lord Hogan-Howe, and my noble friend Lord Paddick could reel off the offences that might be used in the case of the use of corrosive substances causing injury. That is not the subject of these amendments or of the clauses in question.
I also regret the absence of the noble and learned Lord, Lord Judge, who has made it very clear that he opposes mandatory sentences. I will leave it at that point and beg leave to withdraw the amendment.
Amendment 5 withdrawn.
Amendments 6 and 7 not moved.
8: Clause 1, page 2, line 29, at beginning insert “Subject to subsection (13A),”
Member’s explanatory statement
This amendment and the Minister's amendment at page 2, line 41 would exclude batteries from the offences in Clauses 1 to 4 relating to the sale or delivery of corrosive products.
My Lords, in Committee I undertook to consider an amendment tabled by the noble Viscount, Lord Craigavon, which sought to exclude batteries from the offences in Clauses 1 to 4 relating to the sale or delivery of corrosive products. These government amendments do just that. As I indicated in Committee, we were already aware of the unintended consequences of Clauses 1 to 4 on battery retailers and manufacturers and were working on how best to frame any exemption for batteries. We have also had discussions with representatives from the battery industry on exempting batteries, to better understand the various types of batteries available and their different uses. These government amendments will exempt all batteries from the prohibitions on the sale and delivery of corrosive products under Clauses 1 to 4. I trust that this satisfactorily deals with the point raised by the noble Viscount. I beg to move.
My Lords, as I moved the original amendment in Committee, I will intervene first. I am grateful to the Government and the Minister for coming up with these amendments, which give me and the people I am interested in more than I asked for. That is a very good start. The wording is much clearer and more elegant than that of the amendment I tabled at the previous stage, which I described as “rather obscure”. The key phrase, which will be totally intelligible to anyone reading the Act is:
“References to a corrosive product … do not include a substance or product which is contained in a battery”.
I am grateful to the Government for coming up with that simple phrase.
I am also grateful to noble Lords who supported me in Committee and for all the lobbying which must have been going on outside Parliament. I support this amendment.
My Lords, I will probe whether the amendment fully does what the Government intend on one or two points, and look at the issues surrounding wet batteries. I declare an interest as a farmer with numerous occasions to use batteries, both in vehicles and outside them. When I first read the amendment I was surprised. Noble Lords will be aware that Schedule 1 says that sulphuric acid is permitted if it is under 15% concentration. Batteries are 32%, so they contain a very corrosive substance. I recognise the problem raised by the noble Viscount, Lord Craigavon, in Committee and with the Government, for those who sell batteries. The Bill mainly tries to deal with the remote ordering and delivery of weapons and corrosive substances. By their very nature, batteries are unlikely to be sold remotely—they are normally sold in a face-to-face meeting—but it is still worth looking at what the law requires to police that.
From what the Minister said a minute ago, the new phrasing means that Clause 1(1) will not be implemented for the sale of batteries. Does this mean that anybody under 18 will be able to buy a battery, or do the Government wish to prohibit those under 18 buying wet batteries? I can also see that, in everyday use, issues might arise with Clause 6(2). How would you get around someone using a car for social or, particularly, recreational purposes having to prove that they have a good reason or lawful authority for having a battery with them? With any luck, the Government’s wording will cover that.
There is a danger in the phrasing of the clause excepting sulphuric acid in a battery. Somebody might contend that they were allowed to extract the acid from the battery and carry it as a weapon. Would the Minister wish to address this at a later stage? Rather than saying,
“product which is contained in a battery”,
should the amendment say, “product while contained in a battery”? You could, admittedly, say that extracting the acid was a stupid thing to do, but you never know what interpretation people will put on these things.
Clause 6(1) refers to having a corrosive substance in a public place. The Bill does define what constitutes a public place: in Scotland, particularly, it is anything other than a private residence. My concern is, perhaps, slightly wide of the immediate issue but will this clause entail that ordinary garages or agricultural engineers, which usually have a site for monitoring and recharging batteries, will be required to install that in a secure room, so that no member of the public can access the liquid while visiting the premises and find themselves in possession of a corrosive substance in a public place?
My Lords, I spoke in support of the noble Viscount, Lord Craigavon, in Committee. I thank the Government for coming forward with an eminently practical amendment to address a consequence of the Bill that was surely never intended. This is the House of Lords doing its job quickly and properly. I thank the Minister for orchestrating this and look forward to hearing her response to my noble friend’s questions.
My Lords, I thank my noble friend the Duke of Montrose for his detailed questions about the use of batteries. I can reassure him that under-18s will be allowed to buy batteries. He also asked about having a good reason to have a battery in a public place and about extracting sulphuric acid from batteries. I am not a battery expert but, as I understand it, all batteries are sealed and you would have to cut one open to remove the acid. The acid has never been used—
I am sure that my noble friend the Minister has looked into this in more up-to-date detail than I have. Car batteries and anything of that size are sealed, but I think there are larger batteries, with a capacity of around 100 amps, which have individual cells with a screw top. You can probably get at those rather more easily.
I think this is above my battery expertise. I was advised that even open vent batteries have caps which are sealed for home delivery, but I hope we are not going to argue with my noble friend about this. The principle behind the logic of many of the clauses is that we are trying to prohibit access to acid that has been used in attacks; there is no evidence that acid has been extracted from batteries of any type and then used in attacks. Indeed, I think I am right in saying that my noble friend Lord Goschen pointed out in Committee that this was an extremely expensive way of accessing sulphuric acid. I hope that reassures my noble friend.
Amendment 8 agreed.
9: Clause 1, page 2, line 36, at end insert—
“(12A) Before making regulations under subsection (12) the appropriate national authority must consult such persons likely to be affected by the regulations as the authority considers appropriate.”Member’s explanatory statement
This amendment would require the appropriate national authority to consult before making regulations under Clause 1(12) which amend the list of corrosive products in Schedule 1 to the Bill.
My Lords, Schedule 1 contains a list of corrosive products for the purposes of the offences in Clauses 1 to 4 that relate to the sale and delivery of corrosive products. The Bill includes a power by regulations to amend Schedule 1. In Committee, I undertook to consider an amendment moved by the noble Lord, Lord Paddick, to require prior consultation before any such regulations are made. As I indicated in the debate, we would fully expect to consult affected persons in any event, but we are content to include an express requirement to this end in the Bill. These amendments do just that. I beg to move.
My Lords, I am grateful to the Minister for these amendments. One of the main things that irked people in the police service was people taking credit for other people’s work. These amendments were originally spotted and drafted by my noble friend Lady Hamwee.
I apologise to the noble Baroness for my oversight.
I am not irked—I rarely get irked.
Amendment 9 agreed.
Amendments 10 and 11
10: Clause 1, page 2, line 37, leave out “subsection (12)” and insert “this section”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 2, line 36.
11: Clause 1, page 2, line 41, at end insert—
“(13A) References to a corrosive product in this section and sections 2 to 4 do not include a substance or product which is contained in a battery.”Member’s explanatory statement
See the explanation of the Minister’s amendment at page 2, line 29.
Amendments 10 and 11 agreed.
Schedule 1: Corrosive products
12: Schedule 1, page 45, leave out line 12
Member’s explanatory statement
This amendment, alongside the amendment to page 45, line 17, is to probe the relationship between the Bill and the Poisons Act 1972.
My Lords, in moving this amendment I will speak also to Amendment 13. The only purpose of revisiting these amendments which we tabled in Committee is to make a point—and I refer to a letter in relation to these matters from the noble Baroness, Lady Barran, dated 12 February—about the fact that two substances of the concentration specified in Schedule 1, sulphuric acid and nitric acid, are specified there as substances which should not be sold to people under the age of 18. This is despite the fact that you need a Home Office licence under the Poisons Act to buy these substances. Therefore, the chances of someone under 18 getting a Home Office licence to buy what are precursors for making explosives are diminishingly small. Indeed, in her letter the noble Baroness says that it is extremely unlikely that anyone under 18 will be able lawfully to acquire or purchase these acids. This goes to the point of a lot of this Bill—that it is there simply to send a message, which is not what we should be using legislation for. I beg to move.
My Lords, as the noble Lord, Lord Paddick, pointed out, these amendments return to the debate we had in Committee about the relationship between some of the substances we have listed in Schedule 1 to the Bill and the provisions of the Poisons Act 1972. The noble Lord is concerned that we have listed both nitric acid and sulphuric acid in Schedule 1, despite the fact that these are already regulated substances within the Poisons Act.
I reiterate the point I made in Committee, that both sulphuric and nitric acid were identified by our scientific advisers at the Defence Science and Technology Laboratory and the police as appropriate for inclusion in Schedule 1. This was because we know that sulphuric acid has been used in attacks, and that nitric acid is considered to be one of the most harmful corrosive substances. While I understand the noble Lord’s concerns about including these two poisons which are already regulated under the Poisons Act, our overriding concern in framing the Bill’s provisions relating to the sale and delivery of corrosive products is that we do all we can to prevent anyone under 18 getting hold of these substances. We therefore think it is appropriate that they are included in Schedule 1.
As I also said in Committee, we have discussed the substances and concentration limits within Schedule 1 with both manufacturer and retail trade associations. They did not raise concerns about their inclusion, even though they were already regulated substances. In fact, they felt that it made sense to include the two acids and that we had got the list right in terms of the corrosive substances of concern. I hope that I have been able to provide sufficient clarification on the relationship between this Bill and the Poisons Act, and that the noble Lord will be content to withdraw his amendment.
My Lords, the Minister has completely failed to address the point that I just raised—but in any event I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
Amendment 13 not moved.
Clause 3: Delivery of corrosive products to residential premises etc
14: Clause 3, page 4, line 13, at end insert “unless the delivery is into the hands of a person aged 18 or over”
Member’s explanatory statement
This amendment, along with other amendments to Clauses 3 and 4, would allow for companies in the UK to sell corrosive products to residential premises as long as they take appropriate measures to ensure that the item is delivered to a person over the age of 18.
My Lords, in moving Amendment 14 I will speak also to the other amendments in this group.
As drafted, the Bill creates a ludicrous, verging on farcical, situation where corrosive substances and bladed articles cannot be delivered to a residential address unless they are ordered from an overseas company. If they are ordered from an overseas company and the UK delivery company does not know what the content of the parcel is, there are no restrictions whatever on these items being delivered to a residential address. At the same time, UK companies are prohibited from delivering both corrosive substances and bladed articles to residential addresses.
If, however, there is an agreement between the UK delivery company and the overseas company that the delivery company will be alerted to any corrosive substances or bladed articles which it will be asked to deliver to a UK residential address, the Government set out in this Bill the steps that the delivery company must take to ensure that the corrosive substance or bladed article is only delivered into the hands of someone 18 years of age or older on the doorstep of the residential address.
If overseas companies are allowed openly to sell and deliver corrosive substances and bladed articles to UK residential addresses, with a system of age verification at the point of handover, why on earth cannot UK companies do exactly the same thing? It is happening right now in the UK in relation to alcohol, so why not enshrine it in legislation and apply it here?
The Bill as drafted not only disadvantages UK companies compared with overseas competitors, but prevents companies like John Lewis delivering items such as food processors, because they have a blade, to people’s homes. It also creates the anomaly of self-employed plumbers and the like, who run their businesses from their home, being able to have these substances and items delivered to their residential address even though the seller and the delivery company may have no way of knowing beyond reasonable doubt that a business is carried on from that address. The Bill creates other anomalies where designer knives—ones made specifically for the purchaser, for example—can be delivered to residential premises.
The sole purpose of prohibiting the delivery of corrosive substances and bladed products to residential addresses is to keep them out of the hands of those under 18. All these anomalies and difficulties can be avoided if an age-verification system at point of handover—a system already set out in this legislation—is available to both overseas and UK businesses. That is what these amendments seek to do. I beg to move.
My Lords, these amendments, in the name of the noble Lord, Lord Paddick, seek to allow the delivery of corrosive and bladed products to residential addresses where steps are taken to ensure that the recipient is over the age of 18. If we can get to a position where this is possible, I would be very happy to support these amendments. Getting the balance right between putting in place precautions to stop young people getting their hands on these products, and adequate offences, is something we should all support. If that can be done in a way that is not damaging to business, that is all the better.
I am, of course, very concerned about the situation regarding knife attacks in Sheffield, and we will come on to my amendments about that later. We had a very positive meeting earlier this week. I am happy to support these amendments if we can get that balance right. I still have an issue about putting restrictions on overseas companies as our jurisdiction ends here in the UK. If we can get a system whereby we ensure that British companies are not disadvantaged and, equally, have some restrictions, I will fully support that.
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the rationale of these amendments, which would change the new offence of sending a corrosive or bladed product to residential premises or a locker so that no offence is committed if a product is delivered into the hands of a person over the age of 18. This would mean that sellers could continue to dispatch products to residential premises providing that they are sure that the products will be delivered to a person over 18. The amendments for corrosive products also amend the defence of having taken all reasonable precautions, to include that they believed that the products would be delivered to a person over 18 and they had either taken reasonable steps to establish the person’s age—for example, relevant age-verification documents such as a passport or driving licence had been provided—or it was clear that the person was not under the age of 18. It would also be a requirement for a delivery company acting on behalf of the seller to confirm they had checked the person was over 18 at the point of delivery. In effect, the amendments in this group say that if a seller meets the first of these requirements, they can go ahead and sell the items to residential premises.
The Government’s approach to the sale of corrosive products, bladed articles and products in relation to UK remote sellers is twofold. First, we want to drive an improvement in the age-verification and dispatch processes of remote sellers. We are doing this by saying that unless they meet certain minimum conditions, they will not be able to rely on the defence that they have taken all reasonable precautions and exercised all due diligence if they are prosecuted for the offence of selling a corrosive product or a bladed article to a person under 18. These conditions include that they have suitable age-verification systems in place at the point of sale, that they clearly label the items when they are dispatched and that they have arrangements in place to ensure that when finally delivered, the items are delivered into the hands of a person over the age of 18. Many of the requirements covered by the amendments in this group are already reflected in the Bill.
Secondly, we believe that in addition to stronger checks by remote sellers, the dispatch of corrosive and bladed products to a residential premise or locker should be banned and that instead, buyers will need to pick them up from a collection point. This will ensure that the items are not delivered to a person under 18. There are two reasons why the Government believe that, in addition to age checks at the point of sale, sellers should also be prohibited from sending the products to a home address. First, it will be possible for buyers to get round any age-verification systems at the point of sale in relation to remote sales, for example by using a borrowed credit card or using another person’s passport or driving licence. Until we are confident that online age-verification systems are robust, we do not want to depend on them entirely.
My Lords, I have a series of amendments later on to do with the delivery of bladed articles to residential premises. One of the matters that will always arise is that the Government say that if you can get your house classified as a place of business, then you come into the permitted category. However, I have two questions: first, what constitutes designating your premises as a place of business and secondly, will that affect the local authority’s view as to the level of rates that it would impose on the premises?
Turning to my noble friend’s question, if your home is also your registered business address, then clearly is it both. The noble Lord actually raised that point in Committee. The residential address can be either just a residential address or both a business and a residential address.
Returning to my other point about someone being prohibited from selling a product to a home address, we want to avoid any liability regarding checking age falling on the delivery company when the item is handed over. This is because delivery companies indicated in our discussions with them that they might simply refuse to deliver items on behalf of sellers if the legal responsibility for checking age falls to them. We are willing to accept this risk in relation to overseas sales because we are less concerned about the impact on overseas sellers, should their trade be affected, but for UK sales we do not want to place a liability on deliverers because there is a risk that they will then refuse to deliver any bladed items. The Government position is therefore that any liability for ensuring that any remotely sold corrosive and bladed products in the UK are not sold and delivered to under-18s should fall solely on the seller.
I have one final point to make, about a meeting that the noble Lord, Lord Kennedy, and I had with the Sheffield knife manufacturers. As a result of that meeting, I want to satisfy myself of the position in relation to a couple of major delivery companies to ensure that that has not changed. Nothing in the meeting led me to doubt the position, but I just want to clarify that. In the meantime, I ask the noble Lord, Lord Paddick, to withdraw his amendment.
My Lords, I am grateful to the noble Lord, Lord Kennedy, for his qualified support for these amendments. As far as the explanation from the Minister was concerned, however, if you are a sole trader, you could be considered to be conducting your business from your home address. The Inland Revenue would be the only ones who knew that, and that information would be confidential. Therefore, there is no way that a delivery company could establish beyond reasonable doubt whether your residential address was a business address or not. As with a lot of this Bill, it clearly has not been thought through. The Minister has completely avoided the fact that this significantly disadvantages UK businesses as opposed to overseas ones. If they do not inform the UK delivery company what is in the parcel, there is absolutely no comeback on the delivery company whatsoever. Anything can be delivered to a residential address, whether it is a bladed article or a very strong acid ordered from an overseas business.
The Government say they want to avoid putting a liability on delivery companies, but this legislation puts liability on delivery companies if they are delivering corrosive substances or bladed articles from overseas. The only difference concerns whether the company is from the UK or overseas. Again, the Minister failed to answer how age verification at a collection point is more secure than on the doorstep. She completely failed to address the issues I raised. However, there are far more important things to get on to so at this stage, I beg leave to withdraw the amendment.
Amendment 14 withdrawn.
Amendments 15 to 22 not moved.
Clause 4: Delivery of corrosive products to persons under 18
Amendments 23 to 26 not moved.
27: After Clause 5, insert the following Clause—
“Offence of obstructing a seller in the exercise of their duties
(1) A person commits an offence if they intentionally obstruct a person (“the seller”) in the exercise of their duties under section 1 of this Act and under section 141A of the Criminal Justice Act 1988 (sale of bladed articles to persons under 18).(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, to imprisonment for a term not exceeding 6 months, or to both.”
My Lords, I raised this issue at Second Reading and in Grand Committee. I am grateful for the support I have received from across the House. We are placing shop workers at the forefront in the Bill. They risk a prison sentence or a lesser punishment if they get it wrong, as they will have committed a criminal offence in selling the products referred to in the Bill to a person under 18 years of age. I have no problem with that. These products cannot be sold to young people and we need a deterrent in place to make sure that this is adhered to.
My issue is that the Bill places additional responsibility on shop workers but gives them no additional protection. This issue has been raised many times in the House, not just in the context of the Bill. My noble friend Lady Kennedy of Cradley raised this matter in a recent Question to the Minister. When I was young—a long time ago—I was a shop worker. I enjoyed the work very much. As a young person, it got me talking to people, which gave me confidence. It was hard work and not without its risks, but it was enjoyable.
I know that the Government are looking at this issue; they are seeking further evidence, but the evidence is already there. Even if the Government decide to act at a later date, I worry that we will have moved on and in the weeks, months and years to come, I will be sitting here asking when the Government will introduce legislation, only to be told that they are waiting for a suitable Bill. There are always pressures on legislation—we all know that—but this time, the pressure is paramount. I am very worried that we will move no further forward.
No doubt the Minister will tell me shortly that there is no problem and there is a whole range of offences; for example, anyone who assaults a shop worker can be charged and, if found guilty, convicted. However, far too often, these offences are not prosecuted; that is a serious problem. Indeed, many offences are not even reported so they get nowhere near a police officer. In the Bill, we are placing duties for specific offences on shop workers but giving them no further protection. Let us imagine being in their position, refusing to sell knives or acids to angry young people who want these products. That is not a nice place to be. We expect shop workers to enforce the law in that situation but give them no protection to do so. We owe them a minimum additional protection, which my amendment seeks to provide. Approximately 280 shop workers are assaulted every single day. I was once a member of USDAW; it is a great trade union. It campaigns for shop workers and knows the industry its members work in. It regularly consults the Government and other agencies and puts forward its view. It has done a good job of finding evidence of the problem.
My amendment is different to the one I moved in Committee in one key respect: it goes beyond the imposition of a fine and introduces a maximum imprisonment term of six months. That is not because I want to increase the prison population—I support community sentences—but I want to give the court the power to look at the full suite of options available and impose a sentence that fits the crime. On reflection, limiting it to a fine was not the right thing to do—it is too restrictive—so I wanted to give the court the power to impose the penalty it thought was appropriate for the case. Perhaps I should have done that in the first place, but it is the right thing to do. I hope that the Minister will respond to this debate in detail and give me some good news. I beg to move.
My Lords, as I said in Committee, we support the amendment. Until last Friday, we were prepared to vote with the noble Lord, Lord Kennedy, should he divide the House, for the reasons he clearly set out. However, at the end of last week, the noble Lord changed the amendment so that the penalty attached to the proposed new offence included a maximum term of imprisonment of six months. Noble Lords will know from the comments of my noble friend Lady Hamwee on the fourth group of amendments that we oppose short-term sentences, as does the right honourable David Gauke MP—the Lord Chancellor and the Secretary of State for Justice—and Rory Stewart, the Minister of State for the Ministry of Justice. I understand that the noble Lord, Lord Kennedy, is also opposed to short-term prison sentences but that this is the only way to secure a community sentence, as we discussed previously, which has to be an alternative to custody. If only there were some way of having the latter without the former. Of course, as I have explained to the noble Lord in correspondence, if the threat to, or the assault on, a shop worker were more serious, there are alternate offences with which someone could be charged and which carry a sentence of imprisonment.
We support the principle that shop workers expected to enforce the law on the selling of age-restricted items, in that they are being asked to prevent underage people making such purchases, should have some legal protections not afforded to other members of the public.
My Lords, I listened with interest as the noble Lord, Lord Kennedy, introduced his amendment. I am sure that all Members of the House are broadly sympathetic to what he seeks to achieve in terms of protecting shop workers. No one should be put in harm’s way through their employment if it can possibly be avoided. I understand what he is driving at with the thrust of the amendment.
I am interested in how the law copes with other circumstances where shop workers and other members of the hospitality trade, such as people in pubs and betting shops, have to make age-related decisions regarding their customers. For example, someone may want to buy a drink or glue, but such products are already age-restricted. I would have thought that similar circumstances to those described by the noble Lord of people being aggravated because they are not being sold those products could arise. It strikes me that there is nothing particularly new, per se, in the circumstances before us in the Bill. When my noble friend the Minister responds to the debate and the noble Lord has the opportunity to respond to her comments, perhaps both of them could consider how the current circumstances work; for example, what happens if a barman has to deny service to someone aged 17 because they have been asked for their identity documents and have produced a fake ID, which I understand is prevalent, and is any specific statutory protection applied to that worker? If not, why should this case be different?
The purpose of my intervention is to understand in rather more detail the current legislative circumstances surrounding people who have to make age-related decisions. My understanding is that younger people are used to being asked for ID; one has to look only in a tobacconist’s or an off-licence to see lots of signs saying that those aged under 21 should be prepared to justify their identity. It seldom happens to me, but it is possible. I look forward to the Minister’s response.
My Lords, as some noble Lords know, my background is in retail, and I have experience of managing the sale of dangerous objects—such as knives—and of alcohol and glue in shops, as my noble friend mentioned. This is an important issue, and we all have a lot of sympathy with workers in this sector. It is also important that we get it right, and while the issue affects shop workers, it is important to look at it in detail and work out what sectors would be affected. There has been a call for evidence and a meeting of the National Retail Crime Steering Group to look into this matter. It is important to look carefully at these offences, and provide time for interested parties, such as those representing shops, the unions and other stakeholders, to come forward and look at the detail of the arrangements. That makes it difficult, given we have got to Report, to deal with it in this Bill.
We all recognise concerns raised by stakeholders. Indeed, the Bill is about trying to make sure that offensive weapons do not get into the wrong hands. I am sympathetic to more work being done on that, but it is important to look at both legislative and non-legislative options for this sort of proposal. I look forward to hearing my noble friend the Minister’s response to this important amendment.
My Lords, I thank noble Lords for speaking to this amendment. I am particularly grateful to the noble Lord, Lord Kennedy, for his tireless work throughout the Bill to raise awareness of the violence and abuse towards shop workers, often those in small corner shops who are on their own, late at night, with little protection and who face, as my noble friend Lord Goschen pointed out, quite abusive behaviour. I thank the noble Lord and representatives from USDAW for meeting me, and having a constructive discussion about how we can improve protections for shop workers, and whether there are any gaps in both the legislative and the non-legislative space that we can work on. I am concerned for retail staff who do not feel safe when they are carrying out their duties at work. As I have said previously, everyone has the right to feel safe at work.
We had a good debate on this matter in Committee, and I understand the strength of feeling on this issue—I am very sympathetic to it. I know that the noble Lord, Lord Kennedy, was grateful to have a meeting with the Minister in the other place on this issue as well. Before I outline the Government’s work in this area, I want to be absolutely clear that we do have an extensive legislative framework in place to protect those facing abuse in the workplace. It ranges from civil tools and powers, including civil injunctions to address lower-level anti-social behaviour we often see, to criminal offences including harassment, common assault, assault occasioning actual bodily harm, and threats to kill in some rare cases. Where an offence is committed against a shop worker in the course of carrying out their duties, the courts can, quite rightly, take into account as an aggravating factor the fact that the offence was committed against a person serving the public. That, in part, answers my noble friend Lord Goschen’s point. In addition, the Sentencing Council is due to consult on an updated guideline on assault this summer.
I understand the concerns from all Benches that the existing legislative framework may not be sufficient, and that both the public, and indeed shop workers themselves, may not always recognise where behaviour is unacceptable. That is why, as I informed noble Lords in Committee, we have announced our intention to launch a call for evidence. This is intended to strengthen our understanding of how the existing legislation is being applied, including in the context of age-restricted sales, the response of the police and the wider criminal justice system, and to identify good practice. My noble friends Lord Goschen and Lady Neville-Rolfe and the noble Lord, Lord Kennedy, asked for further detail on the call for evidence, and it is a very important issue. The Government have a lot of sympathy for workers in the sector and it is important that we get this right. It is also right that we should look in more detail at how this issue affects not only shop workers but, as my noble friend Lord Goschen pointed out, how workers in other sectors can also be affected.
The call for evidence was discussed at an extraordinary meeting of the National Retail Crime Steering Group on 12 February, chaired by the Minister for Crime, Safeguarding and Vulnerability. We are taking into account that group’s feedback and we aim to publish the call for evidence before the Bill completes its passage through Parliament. It is important that the call for evidence is a thorough exercise. We need to provide adequate time for interested parties to respond and then we must consider those responses. This puts the completion of the work beyond the timetable for this Bill, but should the need arise, I hope that there will be further opportunities to bring forward legislation on this issue.
I thank the noble Baroness for giving way. I am pleased that we are going to have a call for evidence so that we can look at these matters in detail, but I have a concern. It is not a party political point because I am sure that it has happened under Labour Governments and the coalition Government. Governments gather evidence and have reviews, but then trying to fit work into the legislative programme becomes very difficult, if not almost impossible. I know that I keep raising the issue, but I will talk again about the rogue landlords database. We could not persuade the Government to make it public, but after the law was passed they said that they did want to do that. However, now we cannot bring forward a piece of legislation to actually make it public. That is so frustrating. I worry that I will be standing here in two years’ time making the same points. I hope the noble Baroness understands the point that I am trying to make.
I totally understand the noble Lord’s point. He reminds me at every opportunity and I think that I will have written on my grave the “rogue landlords database”. However, I have to say that bringing forward the call for evidence will expose any gaps in the legislation. I appreciate, and I know that the noble Lord does as well, that we are going through a busy legislative time. However, we will provide opportunities to bring forward legislation should it be needed.
My noble friend Lady Neville-Rolfe asked what the evidence will cover. As I have said, this was discussed at the extraordinary meeting of the National Retail Crime Steering Group on 12 February. We want to take into account the group’s feedback and to use the call for evidence to strengthen our evidence about the scale and severity of the issue. As she has said, we hear lots of anecdotal horror stories, but we want to look at the broad evidence. Any abuse of a shop worker while doing their job is absolutely unacceptable, but we want to understand in more detail how frequently people are the victims of serious crime. I turn to the point made by my noble friend Lord Goschen about what sorts of businesses we are talking about. The scope and the direction will be led by the National Retail Crime Steering Group.
We want to use the findings to consider what more we can do to ensure that shop workers have the protections they deserve. That is at the heart of the noble Lord’s point. If the call for evidence shows that there is a gap in the existing criminal law, we will give that serious consideration. The group also discussed the options for strengthening the existing workplan. It includes actions to support staff who report incidents to the police and to improve police recording. We have committed to providing £50,000-worth of funding for a sector-led communications campaign to help raise awareness. We appreciate that there will be a huge spectrum of awareness across the sector.
I am grateful to noble Lords for their work in raising awareness of the challenges faced by shop workers and indeed I am grateful to the representatives of USDAW who have taken the time to articulate these issues to me. I hope that our commitment to exploring this issue further through the call for evidence and the wider work being taken forward by the Home Office will reassure the noble Lord that we are taking the concerns raised about this issue very seriously. The fact remains, though, that until we have had the call for evidence and we have studied the responses, there is not sufficient existing evidence to support the need for any new offence as provided for in the amendment.
I hope that the noble Lord will be content to withdraw his amendment. I know that in taking time to raise these concerns with me that he is not trying to be troublesome. He is addressing a real concern from the retail industry and I hope that we can work together on this.
I wonder whether my noble friend could comment on who sits on the National Retail Crime Steering Group if that is going to be important in carrying forward this work. I presume that the retailers’ unions will be represented, along with the police and other relevant people. If she is not able to answer the question, it would be helpful to have that information by way of follow-up because I think that there is a consensus across the House that it would be good to find a way forward in this area. However, we will want to make sure that the legislation covers the right areas and carries the right penalties.
Representatives of USDAW are part of the steering group along with staff from large retail organisations right down to small shop owners. It is important that we have a wide range of representation from organisations so that we can see the full spectrum of exactly what issues are involved. I am aware of my noble friend’s past employment with Tesco. Somehow I had assumed that a big organisation would suffer less abuse because the shops are covered by security officers, but that is not necessarily the case. I have witnessed this myself in big retail organisations, and to improve our understanding, we need representation from across the spectrum of those retail companies.
I am minded to support the amendment, because the case is a good one for shop workers. I just wonder whether, if the Government are not minded to support an explicit offence—whether for shop workers or any retail worker who is enforcing a licence—in legislation in whatever form, the Sentencing Council could consider that as an aggravating factor in the offences that already exist. This could relate to many other types of offence, so we may be able to support the people who need supporting without needing all the legislation to change to cover the different types of licensee who need that support.
The noble Lord makes a good point about aggravated offences—and of course, that can be explored through the call for evidence. As he will know, it is already an offence to abuse or attack someone who is serving the public. USDAW wanted something specifically related to shop workers, and that is one of the suggestions that could be taken forward—in fact, it may well be taken forward—to the call for evidence.
My Lords, I thank everyone who has spoken in the debate. There was a lot of support around the House for the issues that I am bringing forward, and I am grateful to all noble Lords who have spoken. We can all agree that no one should be threatened or abused while doing their lawful business and earning a living. That is important. The noble Viscount, Lord Goschen, asked why we particularly want this now. It is because in the Bill we are putting burdens on shop workers, who risk going to prison if they do not enforce its provisions. That is why we have responded. We are giving them particular offences that they can commit, but we also want them to have further protection in relation to these very serious products.
I thank the noble Lord, Lord Paddick, for his support, although it was qualified. I am sorry if I caused him concern; I never intended the sentence to be custodial, but when I looked at it I realised I would have to put that option down. If nothing else, that highlights the need to review how we impose custodial sentences on people. In many cases we need interventions, but we do not want to risk someone going to prison at that point, so I hope we can come back to that at a later stage.
I also thank the Minister for her very detailed response, and for the fruitful meeting that she had with USDAW representatives and myself recently. I think she accepted that they made their case very well, that they know what they are talking about in representing their members, and that they understand the world of retail.
It is important that we get this right. I accept the point that there will be a call for evidence. That will be a second call for me, because I am going to keep pursuing the noble Lord, Lord Bourne, about the rogue landlords database, and I am also pursuing the noble Baroness about the protection of shop workers, and asking when we are going to get legislation on that subject. These are two important matters, and I shall carry on with them, because we cannot let such things be forgotten. We need to ensure that people going about their lawful business and earning a living are protected. Unfortunately, many shop workers—we heard that it is 280 a day—get assaulted in the UK. That is utterly disgraceful, and I hope the evidence that comes in will support the need for legislation. The noble Lord, Lord Hogan-Howe, made an important point about sentencing guidelines and the Sentencing Council, and there may be something we can do that would not need legislation.
I am not going to test the opinion of the House. I am tempted to, but I have listened to the debate and decided, in view of the way the Minister has engaged with us, to withdraw the amendment.
Amendment 27 withdrawn.
Amendments 28 to 32 not moved.
33: Clause 9, page 10, line 42, at end insert—
“(5) In this section—(a) in subsection (1)—(i) in paragraph (b), for “Scotland, Northern Ireland or a member State other than the United Kingdom” substitute “Scotland or Northern Ireland”,(ii) at the end of paragraph (c) insert “or”, and(iii) omit paragraph (e) and the “or” preceding that paragraph, and(b) in subsection (3)—(i) for the definition of “civilian offence” substitute—““civilian offence” means an offence other than an offence under an enactment mentioned in subsection (1)(c) or (d);”,(ii) in the definition of “conviction”, in paragraph (b) omit “and a member State service offence”, and(iii) omit the definition of “member State service offence”.”Member’s explanatory statement
This amendment inserts a provision to Clause 9 which would not need to be commenced at the same time as the rest of that Clause but which would, on being commenced, amend it to take account of the United Kingdom's exit from the European Union.
My Lords, as we have previously debated, the Bill includes provision for mandatory minimum sentences where a person has been convicted of having a corrosive substance in a public place and has a previous relevant conviction. The definition of a relevant conviction seeks to capture certain offences committed in EU member states other than the United Kingdom. As the Bill may well be enacted after the UK’s withdrawal from the EU, we cannot in those circumstances use the powers in the European Union (Withdrawal) Act to modify these provisions post Brexit. This amendment therefore includes a prospective repeal of provisions relating to member states. I beg to move.
Amendment 33 agreed.
Amendment 34 not moved.
35: After Clause 13, insert the following new Clause—
“PART 1AKNIFE CRIME PREVENTION ORDERSKnife crime prevention orders made otherwise than on convictionKnife crime prevention order made otherwise than on conviction
(1) A court may make a knife crime prevention order under this section in respect of a person aged 12 or over (the “defendant”) if the following conditions are met.(2) The first condition is that a person has, by complaint to the court, applied for a knife crime prevention order under this section in accordance with section (Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction)).(3) The second condition is that the court is satisfied on the balance of probabilities that, on at least two occasions in the relevant period, the defendant had a bladed article with them without good reason or lawful authority—(a) in a public place in England and Wales,(b) on school premises, or(c) on further education premises.(4) In subsection (3) “the relevant period” means the period of two years ending with the day on which the order is made; but an event may be taken into account for the purposes of that subsection only if it occurred after the coming into force of this section.(5) Without prejudice to the generality of subsection (3), a person has good reason for having a bladed article with them in a place mentioned in that subsection if the person has the article with them in that place—(a) for use at work,(b) for educational purposes,(c) for religious reasons, or(d) as part of any national costume.(6) The third condition is that the court thinks that it is necessary to make the order—(a) to protect the public in England and Wales from the risk of harm involving a bladed article,(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or(c) to prevent the defendant from committing an offence involving a bladed article. (7) A knife crime prevention order under this section is an order which, for a purpose mentioned in subsection (6)—(a) requires the defendant to do anything described in the order;(b) prohibits the defendant from doing anything described in the order.(8) See also—(a) section (Provisions of knife crime prevention order) (which makes further provision about the requirements and prohibitions which may be imposed by a knife crime prevention order under this section),(b) section (Requirements included in knife crime prevention order etc) (which makes further provision about the inclusion of requirements in a knife crime prevention order under this section), and(c) section (Duration of knife crime prevention order etc) (which makes provision about the duration of a knife crime prevention order under this section).(9) Section 127 of the Magistrates’ Courts Act 1980 (time limits) does not apply to a complaint under this section.(10) In this section—“court”—(a) in the case of a defendant who is under the age of 18, means a magistrates’ court which is a youth court, and(b) in any other case, means a magistrates’ court which is not a youth court;“further education premises” means land used solely for the purposes of—(a) an institution within the further education sector (within the meaning of section 91 of the Further and Higher Education Act 1992), or(b) a 16 to 19 Academy (within the meaning of section 1B of the Academies Act 2010),excluding any land occupied solely as a dwelling by a person employed at the institution or the 16 to 19 Academy;“public place” includes any place to which, at the time in question, the public have or are permitted access, whether on payment or otherwise;“school premises” means any land used for the purposes of a school, excluding any land occupied solely as a dwelling by a person employed at the school; and “school” has the meaning given by section 4 of the Education Act 1996.”Member’s explanatory statement
This Clause and the other amendments of the Minister to insert new Clauses after Clause 13 would make provision for knife crime prevention orders and interim knife crime prevention orders imposing requirements and prohibitions on defendants and subjecting them to certain notification requirements.
My Lords, the government amendments in this group introduce knife crime prevention orders. Noble Lords will recall that these amendments were debated in Grand Committee on 6 February but were withdrawn because it was clear that they did not attract universal support, as the procedural rules in Grand Committee require. The government amendments before us today are the same as those debated in Grand Committee. Given that we have already had a substantial debate on these new civil orders, I do not intend to go through every aspect of them. However, it is worth stating again why the Government have brought forward these measures and to summarise how they will work.
All noble Lords will appreciate that we face a significant increase in knife crime at present, particularly in London but also in other major cities and across the country. It is sad to say that hardly a day goes by without further horrific examples of the devastation that such crimes cause, not only to individual families but to entire communities. We must do everything we can to stop this increase in violent crime.
The latest police recorded crime figures published by the Office for National Statistics in January for the year ending September 2018 show that there have been close to 40,000 knife-related offences. This is an 8% increase compared to the previous year. The number of homicides where a knife or sharp instrument has been used has increased by 10% in the last year to 276 offences. Of all recorded homicides in the latest data, more than four in 10 involved a knife or a sharp instrument. Police-recorded offences involving the possession of an article with a blade or point rose by 18% to approaching 20,000 offences in the year ending September 2018. This rise was consistent with increases seen over the past five years and is the highest figure since the series began in March 2009.
It is vital that the police have the powers they need to prevent knife crime and protect the public from the devastating effects of violent crime on our streets. When we prosecute young people for knife crime, it is already too late for families when their sons and daughters are lying in hospital or dead on the street. This is tearing some of our communities apart and if there are measures available that might help to tackle this issue, then we must not hesitate to put them in place.
These new civil prevention orders will enable the police to more effectively manage those at risk of being drawn into trouble and help steer them away from crime, and the Government make no apologies for bringing them forward. The orders are aimed at three groups of people: young people who have been carrying a knife; habitual knife carriers of any age; and those who have been convicted of violent offences involving knives.
In the case of young people, the police may have intelligence that a young person routinely carries a knife but for a variety of reasons they have been unable to charge them with a possession offence. Before risky behaviour escalates, a KCPO, as they are called, could be in place to divert the person away from a life of prolific offending.
As I have indicated, people who the police deem to be habitual knife carriers could also be subject to a KCPO. This would include people who may have previous convictions for knife crime or where the police have intelligence that they regularly carry knives. The KCPO would enable the police to manage the risk of future offending in the community. This is the cohort that the police see as their main target for these orders. They estimate that there are about 3,000 habitual knife carriers across England and Wales, although that is not to say that all that cohort would be made subject to a KCPO.
It may be helpful if I explain briefly how the orders will work. An application for a KCPO can be made by a relevant chief officer of police to a magistrates’ court or, in the case of young people, the youth court. A court may make an order only if it is satisfied that the defendant had a bladed article without good reason in a public place or education premises on at least two occasions in the preceding two years, and that the order is necessary to protect the public or prevent the defendant committing an offence involving knives. A KCPO can also be made on conviction where the defendant is convicted of a relevant offence and, again, the court thinks the order is necessary to protect the public or prevent the defendant committing an offence involving knives.
A KCPO may require a defendant to do anything described in the order and/or prohibit the defendant doing anything described in the order. The KCPO can include any reasonable prohibition or requirement which the court is satisfied is necessary, proportionate and enforceable. An order could therefore include things such as curfews or restrictions on going to a particular place.
A KCPO can also include positive requirements, and we think these are particularly important. A positive requirement could be attending some form of knife awareness training or a programme to move young people away from knife crime. Some of these programmes are already being funded under the serious violence strategy, and we are keen to build on the excellent work that is already under way to help divert young people from violent crime and is often provided by groups which have first-hand experience of dealing with knife crime in their communities. Where a KCPO imposes such a requirement it must specify a person who is responsible for supervising compliance with the requirement. For instance, if the requirement is attendance at a knife awareness intervention, the person designated to supervise compliance may be the youth worker providing the intervention.
KCPOs will have a maximum duration of two years and must be reviewed by the courts after 12 months. KCPOs issued to under-18s will be expected to be subject to more regular reviews, an issue which we will address in guidance. There are provisions for variation, renewal or discharge of KCPOs on application by the defendant or the police. There are also provisions for appeal against the order. Breach of the order, without reasonable excuse, is a criminal offence subject to a maximum penalty of two years’ imprisonment.
Young people are clearly an area of great concern to a number of noble Lords. The police tell us that the age at which people carry knives is getting lower. We also know from hospital data and from the police that younger and younger children are involved in knife crime as both victims and perpetrators. If we are serious about tackling the epidemic of knife crime on our streets, the measures we take must apply to young people.
I must point out that the civil orders available for dealing with sex offending apply to children as young as 10 and last for up to five years rather than the maximum of two years available under KCPOs. Likewise, the maximum penalties are up to five years in prison rather than the two years we have with KCPOs. I know that noble Lords might argue that sex offending is different and somehow more serious. I am not sure that argument is true given the number of knife-related deaths that we are now witnessing in our cities.
I know that noble Lords will also argue that it would be better to go the anti-social behaviour injunction route, which of course applies to children as young as 10. The argument here is that having contempt of court rather than a criminal offence for breach would make the orders more palatable because it would mean that children would not get a criminal record. The advice that we have had from police, some of which we heard yesterday at the round table, is I think advice that we should listen to very carefully. It is that making it a criminal offence to breach an order is important if we want the order to be taken seriously. I do, however, understand concerns about the application of these orders to young people. That is why we set the minimum age of 12, and that is why youth offender teams will need to be consulted on any orders against defendants under the age of 18. It is why we have said we will consult publicly on the guidance with community groups and youth organisations and others before these orders are brought into force.
This Government are determined to do all they can to protect the public and keep people safe. We must seize every opportunity to end the senseless cycle of violent crime that is corroding our streets. Knife crime prevention orders are not the complete answer to violent crime, but they most certainly will help. I beg to move.
My Lords, I said a lot about knife crime prevention orders in Committee. Tonight I am going to focus on pre-conviction knife crime prevention orders. Despite the Government’s claims to the contrary, they will result in many young people being criminalised instead of being diverted away from the criminal justice system. How can we be so sure? Because they are almost a carbon copy of anti-social behaviour orders, which did exactly that—criminalised swathes of young people for breaching a civil order imposed on them on the balance of probabilities but where a breach of the order was a criminal offence, exactly the same as these provisions.
A court has to be satisfied only on the balance of probabilities that, on at least two occasions, the defendant had a bladed article with them without good reason or lawful authority in a public place on school or further education premises. If they were caught in possession of a knife, they could be prosecuted. This is not about young people being stopped and searched and being found with a knife. This is about hearsay evidence, information from informants, the police being tipped off that someone is a knife carrier. An interim order can even be imposed without the defendant’s having the chance to put his side of the story. Imposed on the balance of probabilities, a breach of the conditions can result in a criminal record and up to two years in prison.
These are anti-social behaviour orders reinvented. They are primarily aimed at young people, as young as 12. It may have been a long time ago, but we were all young once. Young people make mistakes; they can be reckless, forgetful, mischievous. The orders would impose, on people who are more chaotic than responsible adults, conditions such as: being at a particular place between particular times on particular days; being at a particular place between particular times on any day; presenting themselves to a particular person at a place where they are required to be; participating in particular activities between particular times on particular days; prohibiting them from being in a particular place with particular people; participating in particular activities; using particular articles or having those articles with them. An order that imposes prohibitions can include exemptions to those prohibitions. They have to tell the police within three days if they use a name which has not previously been notified to the police, or they decide to live away from their home address for more than a month. What does,
“uses a name which has not previously been notified to the police”,
even mean? What if their schoolmates give them a nickname that they have become known by? Do they breach the order if they use that name? The young person is going to need a PA and carry a list of conditions with them at all times which they have to constantly refer to, to make sure that they do not breach the order.
Children are children. These orders can be imposed on young people who have never been in trouble with the police and have never been convicted of a criminal offence, and they could be sentenced to custody because they did not turn up for football practice as the order required them to do or because they were told not to associate with certain people but those people kept following them around. It would be easy for me or other noble Lords, let alone a child, to breach some of these conditions if they were imposed on us, and these orders would last a minimum of six months and up to two years.
The orders must specify the person who is responsible for supervising compliance. Who do the Government have in mind—a youth worker? There are hardly any left following the government cuts to local authorities. Do they have in mind a community police officer? There are hardly any left following government cuts to the police service. Youth workers are supposed to build relationships with young people and to offer help and guidance, yet they will have to report breaches to the police, breaking down the trust that they have built up with their young people, being responsible for giving evidence of the breach in court and securing a criminal record for the young person they are supposed to be building a rapport with. Or do the Government have in mind a community police officer or PCSO? Their primary role is to build trust and confidence with their local community, yet they will be asked to give evidence of breaches of orders and arrest young people, resulting in children being given criminal records and potentially being sent to custody. These impositions on people who are crucial to tackling the long-term drivers of knife crime go directly counter to the public health approach to tackling knife crime that this Government claim to be engaged in.
As far as the pilot provisions are concerned, I ask the Minister why a pilot is necessary. We know the disproportionate impact that this type of order has because of our experiences with ASBOs. Stop and search is still used disproportionately on black and minority-ethnic young people, and there is no evidence to suggest that these orders will not be used in a similar way.
A Youth Justice Board evaluation of ASBOs in 2006 found that 22% of young people given ASBOs were BAME—two and a half times their proportion of the population. It also found that:
“Many young people did not have a clear understanding of the details of their orders … It was not uncommon for them to flout openly the prohibitions that placed the greatest restrictions on their lifestyle … All the young people interviewed were aware of the possibility of breach, but most either did not regard the threat of custody as ‘real’, or did not consider it to be a deterrent”,
“Parents (like some professionals) commonly argued that ASBOs functioned as a ‘badge of honour’, rather than addressing the causes of the behaviour”.
In a 2010 speech, Theresa May said of ASBOs that,
“their top-down, bureaucratic, gimmick-laden approach just got in the way of the police, other professionals and the people themselves from taking action … For 13 years, politicians told us that the government had the answer; that the ASBO was the silver bullet that would cure all society’s ills. It wasn’t … These sanctions were too complex and bureaucratic—there were too many of them, they were too time consuming and expensive and they too often criminalised young people unnecessarily, acting as a conveyor belt to serious crime and prison”.
She also said that,
“the latest ASBO statistics have shown that breach rates have yet again increased—more than half are breached at least once, 40% are breached more than once and their use has fallen yet again, to the lowest ever level. It’s time to move beyond the ASBO”.
That is what Theresa May said, yet this Government are reinventing the ASBO with these orders.
The Minister has said that the police have asked for these orders. It was quite clear from the round table yesterday who was asking for them: it was the officer in charge of using enforcement to tackle knife crime. He said that he had consulted practitioners but, under questioning, admitted that it was other police forces who had been consulted, not other agencies. According to a Liberty briefing, the Association of Youth Offending Team Managers, the Magistrates’ Association, the Local Government Association, a range of human rights organisations and groups working directly with children all have serious concerns about these orders. What consultation has actually taken place?
I was a police officer for over 30 years and at one time I was the police commander with responsibility for community policing and multiagency approaches to reducing crime and disorder. I completely and absolutely oppose these orders, not because I am a Liberal Democrat or because I have been told to toe the party line but because I honestly believe from my experience and knowledge that they will be counterproductive in tackling knife crime and in dealing with the underlying problems.
The solution to the epidemic of knife crime is a public health approach. The trauma suffered by young people surrounded by violence on the streets and in their homes, normalising violence and leading to a “rather be in prison for carrying a knife than stabbed to death” mentality—that needs to be treated. The mindset borne out of poverty and discrimination that society is not there for you, so you have to look out for yourself; that the police are there to arrest you, not to protect you, if they are there at all; that, because your parents are working three jobs to put food on the table, you have to look for love, acknowledgement and a sense of belonging from the gangs—that needs to be addressed. Instead, the Government propose measures that turn youth workers into law enforcers as the supervisors of KCPOs and reinforce the belief that even the community police officers are there to arrest rather than protect you.
I have two final questions. Can the Minister clarify whether the police could still apply for a KCPO if a young person were found not guilty of a criminal offence involving a knife? At the briefing yesterday, the police said no and the Home Office said yes. Does she consider imposing a knife crime prevention order on someone acquitted of a criminal offence a form of double jeopardy?
I had hoped that the days had gone when Governments gave the police all the powers they wanted so that they could blame them, not themselves, if things went wrong. They have apparently not. These orders have not been thought through and we oppose them.
My Lords, I also spoke in Committee. I cannot agree with the noble Lord, Lord Paddick, as he is aware. I come from a similar background and do not have the same experience of anti-social behaviour orders. They were introduced by a Labour Government and, at the time, I think they had an effect. We had a moral panic, and we also had a problem with anti-social behaviour. They were intended to address repeat offenders, repeat locations and, sadly, repeat victims. They did have an effect. They probably went on a bit too long and eventually outlived their usefulness, but the principle was valid and addressed the order to people’s offending. People had the choice to address their offending pattern or have a criminal sanction, and some chose not to address their offending pattern.
The point that the noble Lord, Lord Paddick, made—that it seems to intervene with young people who may not be able to remember all of the conditions placed on them—is not unreasonable. However, generally, this order’s aim is to replace the parental care that the noble Lord, Lord Elton, referred to earlier. When some of these kids do not have someone who cares enough to say, “That’s a line—don’t cross it”, this is one way to give them some advice. I do not think that it means that a 12 year-old will always end up with a prison sentence or even a criminal conviction, but someone needs to intervene in that pattern. Why are they getting involved with gangs and, frankly, mixing with people who are not helping them? Someone needs to advise them where they should not go, who they should not see and about the types of behaviour that are causing them problems. This is one way of doing it. I accept that there may be others, but I do not think that it is unreasonable to give that type of advice.
I broadly support these orders, mainly because we have a serious problem. The Minister went through the number of people who have been hurt and arrested carrying knives, and we clearly have a cultural problem at the moment. We have had it in previous years—this is not the first time. People in this Chamber will remember tens of years ago, when various groups who carried knives ended up competing with each other, often to sell drugs or for any other form of territory where a weapon became the means of establishing it. We have to intervene now and send a message.
I will contest one final point from the speech by the noble Lord, Lord Paddick, about whether community officers are there to arrest people. They are not, but in my view they are not there just to smile and be nice to people. They have powers. It does not help the community they serve if they ignore offences and leave someone else to make the arrest. They are there to exercise the powers that allow people to trust that it is worth telling them when an offence has been committed.
I would ask the Government still to consider two areas for the future. I agree with the point about pilots. At one time, the Ministry of Justice had so many pilots that we thought it was starting an airline. The danger is that, after a while, it becomes confusing. It also becomes quite difficult to evaluate the success of multiple pilots; so, I worry about pilots generically.
The second point, which the Minister quietly mentioned earlier, is that some people are released from prison to areas other than those where they were convicted. Also, offenders move from where they live to other areas around the country, which means that officers in areas where a pilot may not be in place would have to understand what the powers are; frankly, that could get pretty confusing. This House and the other place generate a huge amount of legislation; officers are expected to remember and act on it fairly. The more legislation there is, the harder it is to enforce when it is partial and fragmented. I worry about pilots for that reason too.
On the point made by the noble Lord, Lord Paddick, if we accept that there is a need for this legislation—as I do, and I am prepared to support it—deciding to implement it partially seems an odd conclusion, since we have agreed that nationally there is a problem. We need to implement legislation in a uniform rather than a fragmented, incremental way.
Finally, I repeat a point that I made in Committee: this Bill does not give a power of search. The Minister said in Committee that existing powers of search were sufficient. I honestly do not believe they are. Section 1 of the Bill gives a power to search—anybody at any time—on reasonable suspicion, but these orders are for people who have already gone through a court process, probably at least twice, and have been found to be at risk of carrying knives. It seems not unreasonable to support the police in the relatively few cases concerned, as mentioned by the Minister; I am sure that far fewer than 3,000 of these orders will be implemented. It would not be an incredible burden for the legislature to support the police by saying that a power of search goes with this power, without the “reasonable cause” that Section 1 requires; it would not be unreasonable to support the police in that way. The officers described by the noble Lord, Lord Paddick, who proposed this power—which is generally supported by the police—had requested that the power of search went with it. They were disappointed when they saw that this request had not been accepted in the legislation.
I support the amendments but I suggest to the Minister that the Government consider the two issues I have mentioned: piloting and the power of search.
My Lords, I rise to respond to the government amendments in this group, as well as Amendments 55 to 60 in relation to the proposed pilots of the new KCPOs. I thank the Minister for meeting me to discuss my considerable concerns about these knife crime prevention orders. Amendment 52 could provide some reassurance, but that would depend very much on how those pilots are undertaken and reported upon.
In view of the Government’s claim that these orders were wanted by the police, I asked Ron Hogg, the Police and Crime Commissioner for Durham—which is one of the top-performing constabularies in the country, according to the inspectorate—whether he and his chief constable, Mike Barton, would find KCPOs a helpful contribution to policing and dealing with knife crime. His considered response—given at some length—amounted to a resounding no.
I would be grateful if the Minister could inform the House how many police services want knife crime prevention orders and how many would prefer not to have them. Police and Crime Commissioner Hogg reiterated many of the concerns that I raised in Committee; in particular, that there is a body of evidence to show that criminalising and punitive civil deterrents have not had a significant impact on reducing youth violence. These policies, as others have mentioned, have included ASBOs, dispersal orders and criminal behaviour orders. Can the Minister confirm—this is very important—that the KCPO pilots will specifically assess, and report on, their impact on the criminalisation of children, and the impact on knife crime in the areas involved? It is no good having pilots if they do not nail down what the orders are achieving in the crucial areas.
Does the Minister accept that in the light of recent swingeing cuts to local authority youth services, and drug services in particular, it will be important to boost these services and restore those cuts in the pilot areas, with a view to rolling out that restoration of funding across the country? Only if these prevention orders really do lead to children and young people accessing the services and treatment they need will criminalisation be avoided and positive outcomes achieved.
I strongly support Amendment 55, in the name of the noble Lord, Lord Kennedy, which proposes that the national rollout of KCPOs must be subject to the approval of both Houses of Parliament, and the amendments of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. We are all familiar with meaningless pilots of government policy—that is not a party-political point, it applies to Governments of all colours—where the rollout of a policy begins before the pilot has even been completed, and certainly before the report on a pilot has been made available and debated in Parliament. Can the Minister give the House an assurance that this will not happen in this case, but that the pilots will be completed and reported on to Parliament before the rollout is undertaken?
I have just a few more questions to pop out quickly; if the Minister cannot respond this evening, perhaps she could reply in writing. What training is the department creating for police forces to spot forms of criminal exploitation in vulnerable young people? What assessments has the Home Office carried out of previous civil orders and their impact on the crime rate, and what have been the results of those studies? Will the gang matrix be used to target suitable people for a KCPO? I look forward to the Minister’s response.
My Lords, I am speaking partly as a member of the Joint Committee on Human Rights. I am not going to read all the letters that the committee has written to the Minister, and I know that she will respond to the committee, but I thought it appropriate to let the House know that the committee has raised concerns, having identified seven rights that are engaged by these proposals. As one might expect, the concerns are about the possible criminalisation of children who have no previous criminal convictions, for breaching requirements which could be imposed in ways which prevent them conducting a normal life.
The committee also asked whether the regime for gang injunctions, which the noble Baroness has just mentioned, might be applied in a similar fashion. They can be applied only to persons aged 14 and over, and a breach is a civil contempt of court, not a criminal offence. For those under 18, breaches are dealt with by way of a separate statutory scheme, with a maximum length of detention of three months. Therefore, the committee has asked the Government to explain why a similar regime has not been proposed to tackle knife crime. The committee has also asked for early sight of the proposed guidance, so that it can be scrutinised when the Bill returns to the Commons.
The amendments on piloting—which are amendments to government Amendment 52—were tabled before yesterday’s round-table meeting with the Minister for Crime, Safeguarding and Vulnerability, which has been referred to, to probe how the pilot proposed by the Government will operate. What is “purpose” in this context? The pilots are to be for a specified purpose, and one needs to understand “purpose” before one asks about specified purpose. I would have assumed that it is to prevent knife crime, but there must be more than that. In Amendment 56, we take a shot at this issue by listing various categories of order.
We are also seeking to obtain assurances that the objective of the pilot is to evaluate, learn and adjust, so in Amendment 57 we refer to the criteria to be used in evaluating and collecting the data about numbers, including age and ethnicity; data about the conditions applied by the court, since it is important to know in practice what happens; and, of course, data about consultation. We have also raised the issue of areas, although since tabling this amendment I understand that it is not proposed that the pilot—or the first pilot, maybe—will necessarily be a whole-force area; for instance, within the Met it may be two or three boroughs and if we are to have these orders, that seems to be right for the purposes of comparison.
In Amendment 107, the noble Lord, Lord Kennedy, has been far more straightforward than my rather convoluted attempt at ensuring that the regulations will be made through an affirmative SI—not just the initial pilot but the full rollout. I hope that the Minister will not analyse my drafting but confirm that that is what is intended.
My Lords, I rise to speak against the Government’s proposals. I remind the House that I sit as a magistrate in London. In fact, earlier today I was dealing with knife-related offences at Highbury magistrates’ court. The noble Lord, Lord Paddick, summarised very fully the case that I was going to put forward so I will try to put forward different points, which were covered earlier in Committee.
The Government’s case is that the KCPO is aimed at filling a gap which is not covered by existing preventive measures, such as gang injunctions and criminal behaviour orders. The Minister has argued forcefully that the potential benefit of preventing knife crime through KCPOs outweighs the potential disbenefit of criminalising children who breach such an order. In essence, that is the argument which we have had a number of times over the last few weeks. She will be aware that many groups have advocated against these KCPOs, for the reasons that we have heard this evening.
Yesterday, I too attended the round-table meeting with the Minister in the Commons, Victoria Atkins. When I asked her for the difference between a KCPO and a conditional caution, I got a better answer than I was expecting because she said that the KCPO would provide a wraparound approach. I was a bit surprised by her words. Earlier this evening we heard from the noble Lord, Lord Hogan-Howe, about hoping to replace inadequate parenting with a more caring—I think that was the word—approach, so that parental care may be approached somehow through these KCPOs. That is absolutely great and I would support it as a good thing, but the reality is that there is no new money available. As far as I can see, the only difference between a KCPO and a conditional caution is at the level of entry into either the order or the caution.
As we have heard, the KCPO has a lower requirement. It is a civil standard, based on the suspicion of a police officer. I remind the House what the requirements for a youth conditional caution are. First, there may be a clear admission of guilt. That is one option but there is a second which is not normally remembered and where there does not need to be any admission of guilt. If the officer believes that there is sufficient evidence against the young person, they can choose to place a conditional caution even when there is no admission of guilt. Of course, all the conditions, as far as I can see, can be exactly the same either in the KCPO or the conditional caution. I do not see how the laudable aspiration of providing wraparound care or some form of parental guidance—or however one chooses to phrase it—would be better met with a KCPO than with a conditional caution.
There is the other effect, the one that we have been talking about, of net-widening when having the lower standard of proof. The people who have advised me are confident that that will bring more young people into being criminalised, which I would regret.
The Minister gave a very strong speech earlier this evening, but the reality is that there is no more money available. That is much more important than however many pieces of legislation that this House chooses to pass. I hope that the Minister will say something encouraging about putting more money into youth services for young people, because that is the true answer to this problem.
I rise to oppose the KCPO proposal, as I did in Grand Committee. I shall not repeat all the arguments that I raised then, because other noble Lords have already mentioned them. However, I ask the Minister: who dreamed up these KCPOs? Were they a Home Office invention? It appears that the Youth Justice Board, the Children’s Commissioner and local government services were not consulted. The Magistrates’ Association, the Association of Youth Offending Team Managers, the Local Government Association, The Children’s Society and the knife crime APPG are all opposed to it. We hear from the noble Baroness, Lady Meacher, that the police and crime commissioner in Durham is also opposed to it.
I am glad that the noble Lord, Lord Ponsonby, mentioned the cost, because there is no reckoning or details of the cost available to Members of this House. I question the pilot and am also worried about Amendment 63, because that seems to click in only if the KCPOs are approved. I hope that the House will not approve them.
I express my deep concerns about what the Government are proposing. I also felt that the Minister made a very strong speech, making it really clear to us again, sitting in this place, that this is about young people, usually on housing estates, being stabbed, bleeding out, dying and losing all that potential in their lives. This is a very grave situation.
That does not mean we should do anything that comes to mind to respond; we need to make an effective response. I am particularly concerned, as vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers, about the criminalising of young people in care. My noble friend Lord Laming’s report two years ago focused on work to reduce the criminalisation of these children, who are so overrepresented in our prisons. The police have recently created a protocol for working with children’s homes to lower the rates of criminalisation. However, I feel certain that if this KCPO is introduced, we will see more children from children’s homes ending up in the criminal justice system. I strongly oppose what is being proposed.
We were recently briefed on county lines. Your Lordships will be aware that drug dealers are grooming children to send far and wide across the country to provide new markets for their drugs. The Children’s Society commented that it will often be children in poverty, from children’s homes, and in difficult circumstances, who are sent away to deal drugs. They will often be supplied with knives or will get them from doing this work. These are the kinds of children who get drawn into this.
Working with children over many years, my experience has been that you have to set sanctions and boundaries for them, but one does not want to set a hurdle which leads to a huge jump into severe punishment. One wants to say: “I am watching you; I see what you are up to; I have got my eye on you; I am paying close attention to you; I am not accepting this behaviour”. You do not want to move from that to saying: “If you do not behave, next time I see you I am going to lock you up” for however long. I am not expressing myself very well. It is late at night and I will not detain your Lordships any longer. I very strongly oppose these proposals. They are not well thought out and I hope that the House will reject them tonight.
My Lords, knife crime prevention orders are an attempt by the Government to deal with the horror of knife crime. Hardly a week goes by without a report of a young life lost. We see parents on our television screens in the depths of unimaginable despair as they try to understand what has happened to their child. These are things that no one should have to experience: a child, a loved one, murdered. It is also clear that the perpetrators of these crimes destroy their own lives when they are caught and punished. We must ask ourselves: have we as a society failed these children and young people as well?
Teaching right from wrong starts in the home, of course, but other agencies also play their part as children go to school and interact with the world around them. The destruction of Sure Start by the Government was a huge mistake—it was destroyed at the altar of austerity. Services for young people have been devastated. There are no youth clubs, no youth workers in any great numbers. Where children are not in loving homes and no one is there to help them, who becomes their family? The risk is that it will be the drug dealer, the gangs, and the people who exploit and abuse them, who become their family. You are part of a gang; there are people who are in other gangs. You have your territory and they have theirs. I was horrified to learn recently that there are young people living in Camberwell, an area of Southwark where I went to school, who are too scared to cross Camberwell New Road and walk into Lambeth. I could not believe it but it is true: they have never been into the borough of Lambeth. That is another gang’s territory and if they go there they risk being stabbed and killed.
When we debated this in Grand Committee, I asked why COBRA has not been convened to deal with this national emergency. If there is a flood, or other emergency, it is convened, so why not to stop this appalling loss of life and destruction of young lives and families? Why not try to deal with this as a national emergency? You could get the police, the Local Government Association, the Home Office and every other relevant agency around the table to look at solutions to these tragic, devastating incidents. I do not think it is over the top to stop young people losing their lives.
I accept that there is support for these orders. I think I am correct in saying that the Commissioner of the Metropolitan Police supports them, as does the Mayor of London. However, concerns have also been raised about the criminalising of children. That concern has been expressed tonight by the noble Lords, Lord Paddick and Lord Ramsbotham, the noble Baroness, Lady Meacher, my noble friend Lord Ponsonby and other noble Lords. If these orders are to come into force, we need a proper pilot scheme, with proper evaluation, and then, having considered the report, a vote in both Houses of Parliament on whether to either roll them out fully or not continue with them. This is the subject of Amendment 55 in my name. Amendment 63, which I am grateful to the noble Lord, Lord Paddick, for supporting, sets out the report to be laid before Parliament before these come into effect.
There are legitimate concerns about the way this proposal has been introduced so late in the day, the lack of consultations with relevant organisations and the lack of scrutiny in the other place where there was none at all because it was introduced after the Bill had left that House. Although I believe we do scrutiny better in this House, the elected House should have had its opportunity and the fact that it has not is regrettable. Getting a series of Lords amendments to debate in the other place is not the same as a Bill Committee, with evidence being taken and the other place going through its proper parliamentary procedures. I think this proposal deserves that.
A number of key points have been raised by noble Lords around the House. The Minister needs to respond carefully before we decide whether to vote on these matters.
I thank all noble Lords for their contributions. I particularly thank the noble Lord, Lord Kennedy, for his point about responding carefully—I certainly shall, because this is a very serious issue.
Before I respond to the amendments from the noble Lords, Lord Kennedy and Lord Paddick, and other points raised in the debate, I want to emphasise again that the purpose of these orders is not to punish those who have been carrying knives but to divert them away from that behaviour and to put in place measures that will stop them being drawn into more serious violent offending. The noble Lord, Lord Ponsonby, quoted my honourable friend Vicky Atkins, who said that they are there to provide that wraparound care. That is precisely their intention—not to draw children into criminality. The noble Lord, Lord Paddick, said that a public health approach is needed, and I absolutely agree with him. My right honourable friend the Home Secretary precisely outlined his intention to pursue a public health approach to this issue.
The other important thing to note about these orders is that they should not be seen in isolation, and they will not in and of themselves provide all the answers. They need to be seen in the context of the comprehensive programme of action set out in our Serious Violence Strategy, which we published last year.
We must try and stop the journey that leads young people from carrying a knife for self-protection to serious violence. We should not focus on picking up the pieces but do all we can to stop those lives being broken in the first place. I am sure noble Lords will agree that prosecution for young children is not always the most appropriate response, and we do not want them drawn into the criminal justice system if we can possibly help it. KCPOs will enable the police and others to address the underlying issues and steer young people away from knife crime through positive interventions.
The amendments contain important safeguards to ensure that KCPOs are not used inappropriately against young people under the age of 18. In particular, the amendments require the police to consult the relevant youth offending team before an order is made and, once made, an order must be reviewed by the courts after 12 months. We fully expect that the courts will provide for more regular reviews where a KCPO is issued to a person under the age of 18. But we remain of the view that the breach of an order should be a criminal offence if these orders are to be effective. This will mean that those on orders understand how important it is to comply with the restrictions or requirements imposed by the court.
I turn now to the amendments from the noble Lord, Lord Kennedy. These amendments tie into government Amendment 52 which provides for, and indeed mandates, the piloting of KCPOs. That these orders should be the subject of a pilot before they are rolled out nationally is clearly a sensible approach, although I take the point of the noble Lord, Lord Hogan- Howe, who would just like to see them rolled out. But these are new orders and it is important that we get them right. Piloting will mean that the police can try out the orders in a few areas, and that they can build experience and learn lessons from operating them for an initial period before they are made available to other police forces. I would expect the pilot areas to include one or more London boroughs, but they might also include other cities with high knife crime. By their nature, the pilot areas will be limited and I hope that assurance deals with Amendment 60 in the name of the noble Lord, Lord Paddick.
Amendment 52 further requires a report to be laid before Parliament on the outcome of the pilot. This will allow Parliament to consider whether these orders are effective and whether they are likely to deliver the intended benefits. It is important that this report is as comprehensive as possible and I am sure that it will include at least some of the information specified in Amendments 57 and 63. By its nature, the report required by Amendment 52 will be a one-off, but I fully expect that once rolled out, KCPOs will be the subject of ongoing scrutiny. There are existing mechanisms for this, such as parliamentary Questions and debates, an inquiry by the Home Affairs Select Committee and the normal process of post-legislative review. I am therefore not persuaded that the new orders should be subject to an annual reporting requirement, as set out in Amendment 63.
Amendment 55 would require the national rollout of KCPOs to be subject to the approval of both Houses of Parliament. I think it is the intention of Amendment 107 to require that regulations provided for the pilots should also be subject to prior parliamentary approval. Again, I am not persuaded of the case for this. The government amendments adopt the standard approach of providing for KCPO provisions, including the pilots, to be brought into force by regulations made by the Home Secretary. In the usual way, such regulations are not subject to parliamentary procedure and I see no reason to adopt a different approach here. Once Parliament has approved the principle of the provisions by enacting them, commencement is then properly a matter for the Executive.
Amendment 52 enables the piloting of the provisions for one or more specified purposes as well as in one or more specified areas. Our intention is to have area-based pilots rather than purpose-based pilots, but we might need some combination of the two. As I have said, our intention is to pilot these provisions principally in part of the Metropolitan Police area, but potentially also in one or two other police force areas. In doing so, it might be necessary to commence certain provisions more widely.
The noble Lord, Lord Hogan-Howe, asked about the situation where an application on conviction is made in the pilot area, but the subject of the order then moves to another part of the country. To cater for such circumstances, it might be necessary to give all courts in England and Wales jurisdiction to vary or discharge, but not to make, an order.
Turning to other issues raised in this group, the noble Lord, Lord Paddick, asked about a consultation that is going to be done as part of the pilot. He also asked about someone who is not guilty of a crime but is given a KCPO. KCPOs are available on application by the police where they have evidence that the individual has carried a knife on two occasions in the preceding two years. If an individual is acquitted but there is evidence that they have carried a knife, an application can be made. It will be for the magistrate or youth court to determine whether the test is met and whether a KCPO is necessary to prevent knife offending or to protect the public.
The noble Baroness, Lady Meacher, asked how many police forces wanted KCPOs and how many do not, which is a reasonable question. The National Police Chiefs’ Council, which represents all 43 police forces in England and Wales, supports KCPOs. In addition, Assistant Commissioner Duncan Ball, of the National Police Chiefs’ Council, said he welcomed the new powers announced by the Home Office, and the APCC chair likewise.
The noble Lord, Lord Hogan-Howe, asked why we have not given a search power. We did not consider the power of stop and search without reasonable grounds necessary because there are existing powers to stop and search individuals where there are reasonable grounds to suspect them of carrying a knife. We think it appropriate for the Police and Criminal Evidence Act 1984 protection to continue to apply to the subjects of these orders.
A number of noble Lords, including the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Meacher, asked about funding and said that there was no point in doing this if funding is not in place. My honourable friend partly answered that point yesterday. Of course, we have made an additional £970 million available to the police for next year and will provide £200 million over 10 years for the all-important early intervention youth fund. We have the National County Lines Coordination Centre. In 2018-19, £1.5 million will go to the community fund; £17.7 million has already been put into the early intervention youth fund for work with PCCs and CSPs to provide the joined-up support mentioned by noble Lords. I think I have answered all noble Lords’ questions.
My Lords, will the Minister ensure that in any pilots, an assessment will be made of the impact of KCPOs on young people in care who are looked after by their local authority and care leavers?
The noble Earl is right to point out that children in care are the most vulnerable people in all the areas we look at. Of course, they will be a prime consideration because they are the most likely to be vulnerable to the sorts of things we are talking about. Local authorities, as their corporate parents, are responsible for them.
Finally, the Government do not pretend for one moment that KCPOs are the magic wand to answer all the problems of knife crime. I emphasise that they are one tool, but an important one, to end the scourge affecting young people, communities and their families. With that, I beg to move.
26 February 2019
Division on Amendment 35
Amendment 35 agreed.View Details
Amendments 36 to 51
36: After Clause 13, insert the following new Clause—
“Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction)
(1) An application for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) may be made only by—(a) a relevant chief officer of police,(b) the chief constable of the British Transport Police Force, or(c) the chief constable of the Ministry of Defence Police.(2) For the purposes of subsection (1)(a) a chief officer of police is a relevant chief officer of police in relation to an application for a knife crime prevention order in respect of a defendant if—(a) the defendant lives in the chief officer’s police area, or(b) the chief officer believes that the defendant is in, or is intending to come to, the chief officer’s police area.(3) An application for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) made by a chief officer of police for a police area may be made only to a court acting for a local justice area that includes any part of that police area.(4) Subsections (5) and (6) apply if a person proposes to apply for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) in respect of a defendant who—(a) is under the age of 18, and(b) will be under that age when the application is made.(5) Before making the application the person must consult the youth offending team established under section 39 of the Crime and Disorder Act 1998 in whose area it appears to the person that the defendant lives.(6) If it appears to the person that the defendant lives in the area of two or more youth offending teams, the obligation in subsection (5) is to consult such of those teams as the person thinks appropriate.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
37: After Clause 13, insert the following new Clause—
“Application without notice
(1) An application for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) may be made without the applicant giving notice to the defendant. (2) Section (Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction))(4) to (6) (consultation requirements) does not apply to an application made without notice.(3) If an application is made without notice the court must—(a) adjourn the proceedings and make an interim knife crime prevention order under section (Interim knife crime prevention order: application without notice),(b) adjourn the proceedings without making an interim knife crime prevention order under that section, or(c) dismiss the application.(4) If the court acts under subsection (3)(a) or (b), the applicant must comply with section (Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction))(4) to (6) before the date of the first full hearing.(5) In this section “full hearing” means a hearing of which notice has been given to the applicant and the defendant in accordance with rules of court.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
38: After Clause 13, insert the following new Clause—
“Interim knife crime prevention ordersInterim knife crime prevention order: application without notice
(1) Where an application for a knife crime prevention order in respect of a defendant is made without notice by virtue of section (Application without notice), the court may make an interim knife crime prevention order under this section in respect of the defendant if the first and second conditions are met.(2) The first condition is that the proceedings on the knife crime prevention order are adjourned (otherwise than at a full hearing within the meaning of section (Application without notice)).(3) The second condition is that the court thinks that it is necessary to make an interim knife crime prevention order under this section.(4) An interim knife crime prevention order under this section is an order which imposes on the defendant such of the prohibitions that may be imposed by a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) as the court thinks are required in relation to the defendant.(5) An interim knife crime prevention order under this section may not impose on the defendant any of the requirements that may be imposed by a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction).(6) See also—(a) section (Provisions of knife crime prevention order) (which makes further provision about the prohibitions which may be imposed by an interim knife crime prevention order under this section), and(b) section (Duration of knife crime prevention order etc) (which makes provision about the duration of an interim knife crime prevention order under this section).”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
39: After Clause 13, insert the following new Clause—
“Interim knife crime prevention order: application not determined
(1) This section applies if— (a) an application is made to a court for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) in respect of a defendant,(b) the defendant is notified of the application in accordance with rules of court, and(c) the application is adjourned.(2) The court may make an interim knife crime prevention order in respect of the defendant if—(a) the first or second condition is met, and(b) the third condition is met.(3) The first condition is that, by the complaint by which the application mentioned in subsection (1) is made, the applicant also applies for an interim knife crime prevention order in respect of the defendant.(4) The second condition is that, by complaint to the court, the applicant for the order mentioned in subsection (1) subsequently applies for an interim knife crime prevention order in respect of the defendant.(5) The third condition is that the court thinks that it is just to make the order.(6) An interim knife crime prevention order under this section is an order which—(a) imposes on the defendant such of the requirements that may be imposed by a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) as the court thinks appropriate;(b) imposes on the defendant such of the prohibitions that may be imposed by a knife crime prevention order under that section as the court thinks appropriate.(7) See also—(a) section (Provisions of knife crime prevention order) (which makes further provision about the requirements and prohibitions that may be imposed by an interim knife crime prevention order under this section),(b) section (Requirements included in knife crime prevention order etc) (which makes further provision about the inclusion of requirements in an interim knife crime prevention order under this section), and(c) section (Duration of knife crime prevention order etc) (which makes provision about the duration of an interim knife crime prevention order under this section).(8) Section 127 of the Magistrates’ Courts Act 1980 (time limits) does not apply to a complaint under this section.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
40: After Clause 13, insert the following new Clause—
“Knife crime prevention orders made on convictionKnife crime prevention order made on conviction
(1) This section applies where—(a) a person aged 12 or over (the “defendant”) is convicted of an offence which was committed after the coming into force of this section, and(b) a court dealing with the defendant in respect of the offence is satisfied on the balance of probabilities that the offence is a relevant offence.(2) The court may make a knife crime prevention order under this section in respect of the defendant if the following conditions are met.(3) The first condition is that the prosecution applies for a knife crime prevention order to be made under this section.(4) The second condition is that the court thinks that it is necessary to make the order— (a) to protect the public in England and Wales from the risk of harm involving a bladed article,(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or(c) to prevent the defendant from committing an offence involving a bladed article.(5) A knife crime prevention order under this section is an order which, for a purpose mentioned in subsection (4)—(a) requires the defendant to do anything described in the order;(b) prohibits the defendant from doing anything described in the order.(6) See also—(a) section (Provisions of knife crime prevention order) (which makes further provision about the requirements and prohibitions that may be imposed by a knife crime prevention order under this section),(b) section (Requirements included in knife crime prevention order etc) (which makes further provision about the inclusion of requirements in a knife crime prevention order under this section), and(c) section (Duration of knife crime prevention order etc) (which makes provision about the duration of a knife crime prevention order under this section).(7) The court may make a knife crime prevention order under this section in respect of the defendant only if it is made in addition to—(a) a sentence imposed in respect of the offence, or(b) an order discharging the offender conditionally.(8) For the purposes of deciding whether to make a knife crime prevention order under this section the court may consider evidence led by the prosecution and evidence led by the defendant.(9) It does not matter whether the evidence would have been admissible in the proceedings in which the defendant was convicted.(10) For the purposes of this section an offence is a relevant offence if—(a) the offence involved violence,(b) a bladed article was used, by the defendant or any other person, in the commission of the offence, or(c) the defendant or another person who committed the offence had a bladed article with them when the offence was committed.(11) In subsection (10) “violence” includes a threat of violence.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
41: After Clause 13, insert the following new Clause—
“Requirement to consult on application for order under section (Knife crime prevention order made on conviction)
(1) This section applies if the prosecution proposes to apply for a knife crime prevention order under section (Knife crime prevention order made on conviction) in respect of a defendant who—(a) is under the age of 18, and(b) will be under that age when the application is made.(2) Before making the application, the prosecution must consult the youth offending team established under section 39 of the Crime and Disorder Act 1998 in whose area it appears to the prosecution that the defendant lives.(3) If it appears to the prosecution that the defendant lives in the area of two or more youth offending teams, the obligation in subsection (2) is to consult such of those teams as the prosecution thinks appropriate.” Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
42: After Clause 13, insert the following new Clause—
“Provisions of knife crime prevention orderProvisions of knife crime prevention order
(1) The only requirements and prohibitions that may be imposed on a defendant by a knife crime prevention order are those which the court making the order thinks are necessary—(a) to protect the public in England and Wales from the risk of harm involving a bladed article,(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or(c) to prevent the defendant from committing an offence involving a bladed article.(2) The requirements imposed by a knife crime prevention order on a defendant may, in particular, have the effect of requiring the defendant to—(a) be at a particular place between particular times on particular days;(b) be at a particular place between particular times on any day;(c) present themselves to a particular person at a place where they are required to be between particular times on particular days;(d) participate in particular activities between particular times on particular days.(3) Section (Requirements included in knife crime prevention order etc) makes further provision about the inclusion of requirements in a knife crime prevention order.(4) The prohibitions imposed by a knife crime prevention order on a defendant may, in particular, have the effect of prohibiting the defendant from—(a) being in a particular place;(b) being with particular persons;(c) participating in particular activities;(d) using particular articles or having particular articles with them;(e) using the internet to facilitate or encourage crime involving bladed articles.(5) References in subsection (4) to a particular place or particular persons, activities or articles include a place, persons, activities or articles of a particular description.(6) A knife crime prevention order which imposes prohibitions on a defendant may include exceptions from those prohibitions.(7) Nothing in subsections (2) to (6) affects the generality of section (Knife crime prevention order made otherwise than on conviction)(7) or section (Knife crime prevention order made on conviction)(5).(8) The requirements or prohibitions which are imposed on the defendant by a knife crime prevention order must, so far as practicable, be such as to avoid—(a) any conflict with the defendant’s religious beliefs, and(b) any interference with the times, if any, at which the defendant normally works or attends any educational establishment.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
43: After Clause 13, insert the following new Clause—
“Requirements included in knife crime prevention order etc
(1) A knife crime prevention order or interim knife crime prevention order which imposes a requirement on a defendant must specify a person who is to be responsible for supervising compliance with the requirement.(2) That person may be an individual or an organisation.(3) Before including a requirement, the court must receive evidence about its suitability and enforceability from—(a) the individual to be specified under subsection (1), if an individual is to be specified;(b) an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.(4) Before including two or more requirements, the court must consider their compatibility with each other.(5) It is the duty of a person specified under subsection (1)—(a) to make any necessary arrangements in connection with the requirements for which the person has responsibility (the “relevant requirements”);(b) to promote the defendant’s compliance with the relevant requirements;(c) if the person considers that the defendant—(i) has complied with all of the relevant requirements, or(ii) has failed to comply with a relevant requirement,to inform the appropriate chief officer of police.(6) In subsection (5)(c) “the appropriate chief officer of police” means—(a) the chief officer of police for the police area in which it appears to the person specified under subsection (1) that the defendant lives, or(b) if it appears to that person that the defendant lives in more than one police area, whichever of the chief officers of police of those areas the person thinks it is most appropriate to inform.(7) A defendant subject to a requirement in a knife crime prevention order or interim knife crime prevention order must—(a) keep in touch with the person specified under subsection (1) in relation to that requirement, in accordance with any instructions given by that person from time to time, and(b) notify that person of any change of the defendant’s home address.(8) The obligations mentioned in subsection (7) have effect as if they were requirements imposed on the defendant by the order.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
44: After Clause 13, insert the following new Clause—
“Duration of knife crime prevention order etc
(1) A knife crime prevention order or an interim knife crime prevention order under section (Interim knife crime prevention order: application not determined) takes effect on the day on which it is made, subject to subsections (6) and (7).(2) An interim knife crime prevention order under section (Interim knife crime prevention order: application without notice) takes effect when it is served on the defendant, subject to subsections (6) and (7).(3) A knife crime prevention order must specify the period for which it has effect, which must be a fixed period of at least 6 months, and not more than 2 years, beginning with the day on which it takes effect.(4) An interim knife crime prevention order under section (Interim knife crime prevention order: application without notice) has effect until the determination of the application mentioned in subsection (1) of that section, subject to section (Variation, renewal or discharge of knife crime prevention order etc) (variation, renewal or discharge).(5) An interim knife crime prevention order under section (Interim knife crime prevention order: application not determined) has effect until the determination of the application mentioned in subsection (1) of that section, subject to section (Variation, renewal or discharge of knife crime prevention order etc).(6) Subsection (7) applies if a knife crime prevention order or an interim knife crime prevention order is made in respect of—(a) a defendant who has been remanded in or committed to custody by an order of a court,(b) a defendant on whom a custodial sentence has been imposed or who is serving or otherwise subject to such a sentence, or(c) a defendant who is on licence for part of the term of a custodial sentence.(7) The order may provide that it does not take effect until—(a) the defendant is released from custody,(b) the defendant ceases to be subject to a custodial sentence, or(c) the defendant ceases to be on licence.(8) A knife crime prevention order or an interim knife crime prevention order may specify periods for which particular prohibitions or requirements have effect.(9) Where a court makes a knife crime prevention order or an interim knife crime prevention order in respect of a defendant who is already subject to such an order, the earlier order ceases to have effect.(10) In this section “custodial sentence” means—(a) a sentence of imprisonment or any other sentence or order mentioned in section 76(1) of the Powers of Criminal Courts (Sentencing) Act 2003, or(b) a sentence or order which corresponds to a sentence or order within paragraph (a) and which was imposed or made under an earlier enactment.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
45: After Clause 13, insert the following new Clause—
“Notification requirementsNotification requirements
(1) Subsection (2) applies if—(a) a knife crime prevention order is made in respect of a defendant (other than an order which replaces an interim knife crime prevention order), or(b) an interim knife crime prevention order is made in respect of a defendant.(2) The defendant must notify the information mentioned in subsection (3) to the police within the period of 3 days beginning with the day on which the order takes effect.(3) That information is—(a) the defendant’s name on the day on which the notification is given and, where the defendant uses one or more other names on that day, each of those names, and(b) the defendant’s home address on that day.(4) Subsection (5) applies to a defendant who is subject to—(a) a knife crime prevention order, or(b) an interim knife crime prevention order.(5) The defendant must notify the information mentioned in subsection (6) to the police within the period of 3 days beginning with the day on which the defendant— (a) uses a name which has not previously been notified to the police under subsection (2) or this paragraph,(b) changes their home address, or(c) decides to live for a period of one month or more at any premises the address of which has not been notified to the police under subsection (2) or this paragraph.(6) That information is—(a) in a case within subsection (5)(a), the name which has not previously been notified;(b) in a case within subsection (5)(b), the new home address;(c) in a case within subsection (5)(c), the address at which the defendant has decided to live.(7) A defendant gives a notification under subsection (2) or (5) by—(a) attending at a police station in a police area in which the defendant lives, and(b) giving an oral notification to a police officer, or to any person authorised for the purpose by the officer in charge of the station.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
46: After Clause 13, insert the following new Clause—
“Offences relating to notification
(1) A person commits an offence if the person—(a) fails, without reasonable excuse, to comply with section (Notification requirements)(2) or (5), or(b) notifies to the police, in purported compliance with section (Notification requirements)(2) or (5), any information which the person knows to be false.(2) A person guilty of an offence under subsection (1) is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine or to both.(3) In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 (maximum sentence that may be imposed on summary conviction of offence triable either way) the reference in section (2)(a) to 12 months is to be read as a reference to 6 months.(4) A person commits an offence under subsection (1)(a) on the day on which the person first fails, without reasonable excuse, to comply with section (Notification requirements)(2) or (5).(5) The person continues to commit the offence throughout any period during which the failure continues.(6) But the person may not be prosecuted more than once in respect of the same offence.(7) Proceedings for an offence under this section may be commenced in any court having jurisdiction in any place where the person charged with the offence lives or is found.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
47: After Clause 13, insert the following new Clause—
“Supplementary provisionsReview of knife crime prevention order
(1) This section applies where a court has made a knife crime prevention order in respect of a defendant.(2) The court may order the applicant and the defendant to attend one or more review hearings on a specified date or dates. (3) Subsection (4) applies if any requirement or prohibition imposed by the knife crime prevention order is to have effect after the end of the period of 1 year beginning with the day on which the order takes effect.(4) The court must order the applicant and the defendant to attend a review hearing on a specified date within the last 4 weeks of the 1 year period (whether or not the court orders them to attend any other review hearings).(5) A review hearing under this section is a hearing held for the purpose of considering whether the knife crime prevention order should be varied or discharged.(6) Subsections (7) to (9) of section (Variation, renewal or discharge of knife crime prevention order etc) (variation, renewal or discharge) apply to the variation of a knife crime prevention order under this section as they apply to the variation of an order under that section.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
48: After Clause 13, insert the following new Clause—
“Variation, renewal or discharge of knife crime prevention order etc
“(1) A person within subsection (2) may apply to the appropriate court for—(a) an order varying, renewing or discharging a knife crime prevention order, or(b) an order varying or discharging an interim knife crime prevention order.(2) Those persons are—(a) the defendant;(b) the chief officer of police for a police area in which the defendant lives;(c) a chief officer of police who believes that the defendant is in, or is intending to come to, the chief officer’s police area;(d) if the application for the order was made by a chief officer of police other than one within paragraph (b) or (c), the chief officer by whom the application was made;(e) if the order was made on an application by the chief constable of the British Transport Police Force, that chief constable;(f) if the order was made on an application by the chief constable of the Ministry of Defence Police, that chief constable.(3) An application under subsection (1) may be made—(a) where the appropriate court is the Crown Court, in accordance with rules of court;(b) in any other case, by complaint.(4) Before a person other than the defendant makes an application under subsection (1), the person must notify the persons consulted under section (Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction))(5) or section (Requirement to consult on application for order under section (Knife crime prevention order made on conviction))(2).(5) Before making a decision on an application under subsection (1), the court must hear—(a) the person making the application, and(b) any other person within subsection (2) who wishes to be heard.(6) Subject as follows, on an application under subsection (1)—(a) the court may make such order varying or discharging the order as it thinks appropriate; (b) in the case of an application under paragraph (a) of that subsection, the court may make such order renewing the order as it thinks appropriate.(7) The court may renew a knife crime prevention order, or vary such an order or an interim knife crime prevention order so as to impose an additional prohibition or requirement on a defendant, only if it is satisfied that it is necessary to do so—(a) to protect the public in England and Wales from the risk of harm involving a bladed article,(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or(c) to prevent the defendant from committing an offence involving a bladed article.(8) The provisions mentioned in subsection (9) have effect in relation to the renewal of a knife crime prevention order, or the variation of a knife crime prevention order or interim knife prevention order so as to impose a new requirement or prohibition, as they have effect in relation to the making of such an order.(9) Those provisions are—(a) section (Provisions of knife crime prevention order) (provisions of knife crime prevention order),(b) section (Requirements included in knife crime prevention order etc) (requirements included in knife crime prevention order etc), and(c) section (Duration of knife crime prevention order etc) (duration of knife crime prevention order etc).(10) The court may not discharge a knife crime prevention order before the end of the period of 6 months beginning with the day on which the order takes effect without the consent of the defendant and—(a) where the application under this section is made by a chief officer of police, that chief officer,(b) if paragraph (a) does not apply but the application for the order was made by a chief officer of police, that chief officer and (if different) each chief officer of police for an area in which the defendant lives or(c) in any other case, each chief officer of police for an area in which the defendant lives.(11) In this section the “appropriate court” means—(a) where the Crown Court or the Court of Appeal made the knife crime prevention order or the interim knife crime prevention order, the Crown Court;(b) where an adult magistrates’ court made the order, that court, an adult magistrates’ court for the area in which the defendant lives or, where the application is made by a chief officer of police, any adult magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area;(c) where a youth court made the order and the defendant is under the age of 18, that court, a youth court for the area in which the defendant lives or, where the application is made by a chief officer of police, any youth court acting for a local justice area that includes any part of the chief officer’s police area;(d) where a youth court made the order and the defendant is aged 18 or over, an adult magistrates’ court for the area in which the defendant lives or, where the application is made by a chief officer of police, any adult magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area.(12) In subsection (11) “adult magistrates’ court” means a magistrates’ court that is not a youth court.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
49: After Clause 13, insert the following new Clause—
“Appeal against knife crime prevention order etc
(1) A defendant may appeal to the Crown Court against—(a) the making of a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) (order made otherwise than on conviction), or(b) the making of an interim knife crime prevention order.(2) A person who applied for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) or an interim knife crime prevention order may appeal to the Crown Court against a refusal to make the order.(3) A defendant may appeal against the making of a knife crime prevention order under section (Knife crime prevention order made on conviction) (order made on conviction) as if the order were a sentence passed on the defendant for the offence.(4) Where an application is made for an order under section (Variation, renewal or discharge of knife crime prevention order etc) (variation, renewal or discharge)—(a) the person who made the application may appeal against a refusal to make an order under that section;(b) the defendant may appeal against the making of an order under that section which was made on the application of a person other than the defendant;(c) a person within subsection (2) of that section other than the defendant may appeal against the making of an order under that section which was made on the application of the defendant.(5) An appeal under subsection (4)—(a) is to be made to the Court of Appeal if the application for the order under section (Variation, renewal or discharge of knife crime prevention order etc) was made to the Crown Court;(b) is to be made to the Crown Court in any other case.(6) On an appeal under subsection (1) or (2), or an appeal under subsection (4) to which subsection (5)(b) applies, the Crown Court may make—(a) such orders as may be necessary to give effect to its determination of the appeal, and(b) such incidental and consequential orders as appear to it to be appropriate.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
50: After Clause 13, insert the following new Clause—
“Offence of breaching knife crime prevention order etc
(1) A person commits an offence if, without reasonable excuse, the person breaches a knife crime prevention order or an interim knife crime prevention order.(2) A person guilty of an offence under subsection (1) is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine or to both.(3) In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 (maximum sentence that may be imposed on summary conviction of offence triable either way) the reference in subsection (2)(a) to 12 months is to be read as a reference to 6 months. (4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
51: After Clause 13, insert the following new Clause—
(1) The Secretary of State may from time to time issue guidance relating to the exercise by a relevant person of functions in relation to knife crime prevention orders and interim knife crime prevention orders.(2) In this section “relevant person” means a person who is capable of making an application for a knife crime prevention order or an interim knife crime prevention order.(3) A relevant person must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.(4) The Secretary of State must arrange for any guidance issued under this section to be published in such manner as the Secretary of State thinks appropriate.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
Amendments 36 to 51 agreed.
52: After Clause 13, insert the following new Clause—
(1) The Secretary of State may exercise the power in section 46(1) so as to bring all of the provisions of this Part into force for all purposes and in relation to the whole of England and Wales only if the following conditions are met.(2) The first condition is that the Secretary of State has brought some or all of the provisions of this Part into force only—(a) for one or more specified purposes, or(b) in relation to one or more specified areas in England and Wales.(3) The second condition is that the Secretary of State has laid before Parliament a report on the operation of some or all of the provisions of this Part—(a) for one or more of those purposes, or(b) in relation to one or more of those areas.(4) Regulations under section 46(1) which bring any provision of this Part into force only for a specified purpose or in relation to a specified area may—(a) provide for that provision to be in force for that purpose or in relation to that area for a specified period,(b) make transitional or saving provision in relation to that provision ceasing to be in force at the end of the specified period.(5) Regulations containing provision by virtue of subsection (4)(a) may be amended by subsequent regulations under section 46(1) so as to continue any provision of this Part in force for the specified purpose or in relation to the specified area for a further specified period.(6) In this section “specified” means specified in regulations under section 46(1). (7) References in this section to this Part do not include section (Guidance) or this section (which by virtue of section 46(5)(za) and (zb) come into force on the day on which this Act is passed).”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
Amendments 53 to 60 (to Amendment 52) not moved.
Amendment 52 agreed.
Amendments 61 and 62
61: After Clause 13, insert the following new Clause—
(1) In section 3(2) of the Prosecution of Offences Act 1985 (functions of the Director of Public Prosecutions) after paragraph (ff) insert—“(fg) to have the conduct of applications for orders under section (Knife crime prevention order made on conviction) of the Offensive Weapons Act 2019 (knife crime prevention orders made on conviction);”.(2) In the Criminal Legal Aid (General) Regulations 2013 (SI 2013/9), in regulation 9 (criminal proceedings) after paragraph (ub) insert—“(uc) proceedings under Part 5 of the Offensive Weapons Act 2019 in relation to a knife crime prevention order or an interim knife crime prevention order;”.(3) The amendment made by subsection (2) is without prejudice to any power to make an order or regulations amending or revoking the regulations mentioned in that subsection.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
62: After Clause 13, insert the following new Clause—
“Interpretation of Part
(1) In this Part—“applicant” means an applicant for a knife crime prevention order;“bladed article” means an article to which section 139 of the Criminal Justice Act 1988 applies;“defendant”—(a) in relation to a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) (order made otherwise than on conviction), has the meaning given by subsection (1) of that section;(b) in relation to a knife crime prevention order under section (Knife crime prevention order made on conviction) (order made on conviction), has the meaning given by subsection (1) of that section;“harm” includes physical and psychological harm;“home address”, in relation to a defendant, means—(a) the address of the defendant’s sole or main residence, or(b) if the defendant has no such residence, the address or location of a place where the defendant can regularly be found and, if there is more than one such place, such one of those places as the defendant may select.(2) A reference in this Part to a knife crime prevention order which is not expressed as a reference to an order under section (Knife crime prevention order made otherwise than on conviction) or (Knife crime prevention order made on conviction) is a reference to an order under either of those sections. (3) A reference in this Part to an interim knife crime prevention order which is not expressed as a reference to an order under section (Interim knife crime prevention order: application without notice) or (Interim knife crime prevention order: application not determined) is a reference to an order under either of those sections.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.
Amendments 61 and 62 agreed.
Amendment 63 not moved.
Clause 15: Defence to sale of bladed articles to persons under 18: England and Wales
Amendments 64 and 65 not moved.
66: Clause 15, page 14, leave out lines 36 and 37
Member’s explanatory statement
This amendment is intended to probe the effect of labelling a package as containing a knife on the likelihood of the package being stolen during delivery.
My Lords, I am moving this amendment on behalf of the noble Lord, Lord Lucas, and at his request. Part of the defence to the sale and delivery of knives to under-18s is that the package containing a knife is clearly marked to indicate its contents. The amendment is intended to probe the effect of labelling a package as containing a knife on the likelihood of the package being stolen during delivery. I beg to move.
I am grateful to the noble Lord, Lord Paddick, for explaining the amendment on behalf of my noble friend Lord Lucas, because it gives us the opportunity to consider the requirements that remote sellers need to meet if they are to rely on the defence that they have taken all reasonable precautions and exercised all due diligence to avoid selling bladed articles to a person under 18.
Section 141A of the Criminal Justice Act 1988 makes it an offence to sell a bladed article to a person under 18. It is a defence that the seller took all reasonable precautions and exercised all due diligence to avoid committing the offence—for example, that they had asked to see proof of a person’s age.
Clause 15 provides that, in relation to remote sales—for example, online sales—of bladed articles, the seller can rely on the defence only if they can prove they have met certain conditions. These conditions are: that they have systems in place at the point of sale for verifying the age of buyers; that they clearly mark the package containing the article when it is dispatched, and have taken steps to ensure that the package is finally delivered is delivered to someone over 18; and that they did not arrange for the article to be delivered to a locker.
The amendment concerns the second of those conditions, which is that that when the package is dispatched it must be clearly marked to indicate that it contains a bladed or sharply pointed article, and that when finally delivered it should be into the hands of someone over 18. The amendment would remove the first part of this condition, so the package would need to be labelled to say that it must be handed to a person over 18, but it would not need to say it contained a bladed or sharply pointed article.
Before I turn to the amendment itself, it might be worth saying a bit about the purpose of Clause 15, which is to drive a change in behaviour by remote sellers. It sets out the minimum requirements we would expect sellers to meet if they wanted to be confident that they were not selling to under-18s, but it is mainly aimed at individual transactions—young people trying to buy knives online—rather than large business transactions. It is not aimed, for example, at a seller of kitchenware that deals exclusively with restaurants and hotels.
The requirements under Clause 15 are therefore the minimum requirements that a seller has to meet if they want to rely on the defence that they have taken all reasonable precautions and exercised all due diligence, should they ever be prosecuted for selling to an under-18. Where a seller knows their customers, they may decide not to comply with the conditions under Clause 15 because they are sure they will never be prosecuted. Examples would be: where a seller sells only to a wholesaler; where a seller has traded with the same customer for years; or where a seller knows the individual they are selling to—for instance, where they make hand-made items for particular customers, they will know the buyer is over 18 and may decide that complying with the conditions is unnecessary.
Turning to the amendment, our discussions with delivery companies and those who provide collection point services indicate that they want any packages that they are going to handle to be clearly marked by the seller so that the risk that they inadvertently hand them over to a person aged under 18 is reduced. You cannot expect staff working for a delivery company or at a collection point to ensure that the package is handed over to an adult unless it is clear from the packaging what it contains and what the restriction is on delivery. It makes sense that those working for delivery companies and at collection points know what they are handling. This will enable them to treat the package with due caution. This is particularly the case where the package contains sharp objects or corrosive substances.
Finally, the amendment applies only to Clause 15 and not to Clauses 16 and 17, which deal with the same matter in Scotland and Northern Ireland, or to Clause 2, which sets the same conditions in relation to corrosive products where these are sold remotely.
I hope I have provided the noble Lord with sufficient explanation around the purpose of Clause 15 and the labelling requirement and that he will feel able to withdraw the amendment.
My Lords, perhaps my noble friend can clarify on the record to what extent an article is regarded as pointed. I am afraid I am the one who is always raising the virtually impossible but it would be possible to extend this provision to a packet of screws or an order of nails—which are not all that sharp but they are sharply pointed articles—and anything else of that nature.
I will write to my noble friend with an accurate answer on that. I am confident that there is a tight definition of this but at this hour I cannot recall it exactly.
My Lords, I am grateful to the Minister for her explanation. The noble Lord, Lord Lucas, wanted the Government’s response to the amendment on the record and that is what we have achieved. On that basis, I beg leave to withdraw the amendment.
Amendment 66 withdrawn.
Amendments 67 to 69 not moved.
Clause 16: Defence to sale etc of bladed articles to persons under 18: Scotland
Amendments 70 and 71 not moved.
Clause 17: Defence to sale of bladed articles to persons under 18: Northern Ireland
Amendments 72 and 73 not moved.
Consideration on Report adjourned.
House adjourned at 9.53 pm.