![Crime and Courts Bill [HL]: Committee Stage Report Bill 137 of 2012-13 RESEARCH PAPER 13/18 8 March 2013](http://data.docslib.org/img/c7ee772f455cfe2dd9166e6f798bfaa7-1.webp)
Crime and Courts Bill [HL]: Committee Stage Report Bill 137 of 2012-13 RESEARCH PAPER 13/18 8 March 2013
The Crime and Courts Bill would, amongst other things, establish a new National Crime Agency, change the law on self defence for householders defending themselves from intruders, make changes to community sentences and immigration appeal rights and introduce a new drug driving offence. The Government made a number of substantive amendments in Committee, including on bailiffs, proceeds of crime and extradition.
This paper describes the changes to the Bill at Committee Stage and is written to inform the Report Stage debate.
Pat Strickland Alexander Horne Jacqui Beard Lorraine Conway Catherine Fairbairn Sally Lipscombe Melanie Gower Louise Butcher
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Research Paper 13/18 Contributing Authors: Pat Strickland, National Crime Agency, gang-related injunctions and public order, Home Affairs Section (HAS) Alexander Horne, Courts and judges, HAS Catherine Fairbairn, Family courts and legal profession, HAS Lorraine Conway, Bailiffs, HAS Melanie Gower, Immigration, HAS Jacqueline Beard, Cameras in courts, self-defence, non-custodial sentences, HAS Sally Lipscombe, Fines, prosecution, HAS Louise Butcher, Drugs & driving, Business and Transport Section
This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualifiedLorraine Conway, professional Bailiffs, should Home be Affairs consulted Section if specific advice or information is required. Louise Butcher, Drug driving, Business and Transport Section
This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.
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ISSN 1368-8456
Contents Summary 1
1 Introduction 2
2 The National Crime Agency 2 2.1 Overview 2 2.2 Structure and governance 2 2.3 Scope 3 2.4 Resources 3 2.5 Strategic priorities and “tasking” 4 2.6 Scotland and Northern Ireland 4 2.7 Counter-terrorism 6
3 Civil and family proceedings in England and Wales 7
4 Youth courts and gang-related injunctions 8
5 Judicial Appointments 8
6 Enforcement of criminal financial penalties 9
7 ‘Enforcement by taking control of goods’: bailiffs 10 7.1 Background to bailiff reform 10 7.2 ‘Enforcement by taking control of goods’: its progress in the Bill 12 As amended in Public Bill Committee 12 Compatibility with the ECHR 14
8 Broadcasting of court proceedings 14
9 Scandalising the judiciary 14
10 Self Defence 14
11 Dealing non-custodially with offenders 16 11.1 Punitive elements 16 11.2 Deferring the passing of sentence to allow for restorative justice 16 11.3 Electronic monitoring 17 11.4 Provision for female offenders 17
12 Deferred prosecution agreements 18 12.1 Sentencing guidelines 18 12.2 Code for prosecutors 18 12.3 Distribution of profits 19
12.4 Sunset clause 19
13 Proceeds of Crime 20
14 Extradition 22
15 Border Control 24 15.1 Appeals against refusal of entry clearance to visit the UK 24 15.2 Restriction on right of appeal from within the United Kingdom 25 15.3 Powers of Immigration Officers 25 15.4 New clause: Deportation on national security grounds: appeals 26
16 Drugs and driving – clause 41 and Schedule 21 27
17 “Insulting” words and behaviour: Amendments to the Public Order Act 1986 29
18 Proposal for reform of criminal law on child neglect 30
Appendix 1 Membership of the Committee 31
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Summary The Crime and Courts Bill was introduced in the Lords in May 2012 and was passed to the Commons in December 2012. The Public Bill Committee had 13 sittings between 22 January 2013 and 12 February 2013.
There were a number of substantive amendments made in Committee:
The Government introduced a series of amendments to reform bailiff powers (‘enforcement by taking control of goods’), to replace a new clause which had been added in the Lords at Third Reading. This follows a consultation paper Transforming bailiff action, which was published on 17 February 2012.
A Government amendment to the provisions on broadcasting court proceedings would strengthen the judiciary’s veto over filming or broadcasting proceedings so that this could apply where any person might suffer undue prejudice.
A Government amendment reversed a defeat in the Lords which would have required probation trusts to make appropriate provision for female offenders, for example regarding unpaid work and rehabilitative programmes.
The Government introduced a series of amendments on proceeds of crime to deal with a Supreme Court judgement.
Two new measures on extradition were introduced. One was a new “forum bar”, to allow a judge to bar extradition where two or more courts from different countries have jurisdiction over the case, if the extradition would not be in the interests of justice. The other would mean that decisions on whether extradition would amount to a breach of a suspect’s human rights would now be left to the judiciary.
A Government new clause was introduced which seeks to restrict the availability of in- country appeal rights in national security deportation cases.
While there were only technical amendments made to the provisions on the National Crime Agency, there were a number of controversial issues, including the lack of a statutory board; the role of Police and Crime Commissioners in tasking arrangements; and whether or not the Agency’s resources would be adequate. An order making power which could have allowed counter-terrorism functions to be transferred to the NCA had been dropped following a Government defeat in the Lords, and there was heated debate about the fact that the Government were not ruling out reintroducing this on Report. The Committee also debated the implications of the Northern Ireland Assembly’s rejection of the Legislative Competence Motion on the Bill.
Other controversial areas included the contracting out of the functions of fines officers; the new test for determining whether a householder had acted lawfully in using force in self defence; the provisions on restorative justice at the pre-sentence stage of dealing with offenders; and the removal of the full right of appeal in family visitor visa cases.
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1 Introduction The Crime and Courts Bill was introduced in the House of Lords on 10 May 2012, and was brought to the Commons on 19 December 2012 where it had its Second Reading on 14 January 2013. Background information on the Bill is provided in Lords Library Note 2012/20 and House of Commons Library Research Paper 13/4, which were prepared for the Lords and the Commons Second Readings respectively. Further background is available on the Home Office1 and Ministry of Justice2 websites.
There were 13 sittings of the Commons Public Bill Committee, running from 22 January 2013 to 12 February 2013. These stages, along with other information on the Bill, can be found on Crime and Courts Bill pages of the Parliament website.
The Bill is a wide-ranging one covering a large number of discrete policy areas. This Report broadly follows the structure of the Bill in summarising the debates.
2 The National Crime Agency 2.1 Overview Part 1 of the Bill would establish the National Crime Agency (NCA) to tackle serious organised crime, and abolish two predecessor organisations, the Serious Organised Crime Agency (SOCA) and the National Policing Improvement Agency (NPIA). The National Crime Agency will incorporate the work done by SOCA as well as taking on some functions from other organisations. It will have four “commands”:
The organised crime command
The border policing command
The economic crime command
The child exploitation and on-line protection command
At Second Reading, the Home Secretary, Theresa May, said that the National Crime Agency would bring “a decisive, intelligence-led response to organised crime” in contrast to the current “patchy and fragmented” law enforcement effort.3 The shadow Home Secretary, Yvette Cooper, said that although parts of the Bill were “very valuable”, and she agreed that “SOCA should be strengthened”, the new National Crime Agency faced increased responsibilities with a lower budget, and detail of how it would work remained “confused”.4
The provisions on the National Crime Agency were not amended in Committee, apart from some technical amendments to schedule 85 which were agreed to without debate.6
2.2 Structure and governance Shadow Policing Minister David Hanson moved an amendment to clause 1 which would have created a statutory board for the National Crime Agency, which (he said) would give “greater scrutiny, transparency and accountability”.7 The Serious Organised Crime Agency
1 Home Office website, Crime and Courts Bill pages [accessed 6 March 2013] 2 Ministry of Justice website The Crime and Courts Bill 3 HC Deb 14 January 2013 c463 4 Ibid c646 5 Schedule 8 covers minor and consequential amendments related to the abolition of SOCA and the NPIA. 6 PBC 29 January 2013 cc189-190 7 PBC Deb 22 January 2013 c8
2 RESEARCH PAPER 13/18 has a statutory board, and Mr Hanson questioned whether the model proposed in clause 1 of the Bill, with direct accountability to the Home Secretary, would result in sufficient challenge or scrutiny for the Director General.8 The Home Office Minister, Jeremy Browne, argued for the “cleaner and more accountable” structure offered by the Bill, saying that “SOCA’s structure is not the ideal one for a law enforcement agency”.9 The outline Framework Document10 made it clear that the NCA would have a non-statutory management board. Mr Hanson pressed the amendment to a division (the only one in the debate on this part of the Bill) and it was negatived by 11 votes to 9.11
Paul Goggins moved an amendment which would have set out the four “commands” on the face of the Bill.12 He described in some detail the origins of the Child Exploitation and Online Protection Centre, and the controversy which had been caused by the Government’s announcement that it would be incorporated into the NCA.13 His concern was that to ensure that the Home Secretary could not simply close down one of the four commands (such as the child exploitation and on-line protection command) “on a whim”, but would have to do this by means of a statutory instrument. Jeremy Browne said that the Government were committed to the work done by CEOP, but that legally it was currently part of SOCA. Putting the commands on the face of the Bill would create “unnecessary rigidity”.14
A further Labour amendment, this time to clause 7, sought to ring-fence CEOP’s budget within the NCA. The Shadow Minister for Crime Prevention Stella Creasy explained that she wanted to ensure that CEOP would have a sufficient budget to do its job, not least because it was “one of the few organisations within the police that is successful in raising money from outside sources”. 15 Jeremy Browne said CEOP would continue to have “clear delegated authority for its budget” as well as being able to raise and hold funds from donors.16
2.3 Scope Clause 1(5) sets out the functions of the NCA, and these must be relevant to activities to combat “organised crime or serious crime” or, under subsection (5)(b),“any other kind of crime”. David Hanson moved a probing amendment to explore whether this remit might bring the Agency into areas which might more properly be the responsibility of local police forces. Jeremy Browne emphasised that it was not the intention that the NCA should concern itself with “stand-alone micro level crime”, but that intelligence about less serious crime can lead to the disruption and exposure of organised crime groups.17 The amendment was withdrawn.
2.4 Resources Another Labour amendment, this time to schedule 1, would have introduced a duty on the Home Secretary to ensure the NCA had sufficient resources to discharge its functions efficiently and effectively.18 Jeremy Browne confirmed that £407 million would be transferred to the NCA from predecessor organisations. David Hanson pointed out that this was only £13 million more than SOCA’s budget for 2012-13, despite the fact that the National Policing
8 Ibid c13 9 Ibid c21 10 Home Office, Outline Framework Document for the National Crime Agency on the Crime and Courts Bill pages of the Home Office website, accessed 28 February 2013 11 PBC Deb 22 January 2013 c34 12 PBC Deb 22 January 2013 c40 13 PBC Deb 22 January 2013 c45-47 14 Ibid c49 15 PBC Deb 24 January 2013 c148 16 c149 17 PBC Deb 22 January 2013 c37 18 Amendment 8, PBC Deb 22 January 2013 c52
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Improvement Agency’s budget was just over £360 million. He asked how much of the NPIA’s budget would transfer across with the relevant responsibilities. The Minister said that “aggregating figures from predecessor organisations, whose functions are not transferring to the NCA” was “too crude”.19 Anyone running an organisation would have to make decisions about how it spends money and decide on priorities. The Government would “ensure necessary resources to combat crime” but could not promise unlimited funding.20 The amendment was withdrawn. The issue was returned to in the debate on schedule 8 when the Minister gave further details. Much of the NPIA’s budget was for the national police radio system, Airwave, and there would be an allocation to the College of Policing. The NPIA functions which would transfer across to the NCA constituted only £12 million.21
2.5 Strategic priorities and “tasking” Clause 2 of the Bill gives the Home Secretary the power to determine strategic priorities. David Hanson moved an amendment to convert this power into a duty by replacing the word “may” with the word “will”.22 Jeremy Browne undertook to “go away and reflect” on whether the clause should be changed.23 The amendment was withdrawn.
Clause 4 contains provisions relating to “tasking”, including the new power for the Director General of the NCA to direct Chief Officers to perform a task. Stella Creasy moved an amendment which would have placed a statutory duty on the Director General to notify the relevant police and crime commissioner prior to “tasking”.24 She argued that there could be “a situation where a police and crime commissioner would not know if a request for resources had been made or was affordable or, vice versa, that a chief officer, rather than dealing with an issue on their own patch, could ask for the NCA to intervene” without involving the PCC.25 Jeremy Browne said he was not convinced that these changes should be made to the Bill. Voluntary tasking was not a one-off event; “seamless interaction” was required. Also the amendment could result in PCCs becoming involved with the operational decision making of a chief constable.26 The amendment was withdrawn, as was another Opposition amendment to specify that the Director General’s direction could only be given in exceptional circumstances.27
2.6 Scotland and Northern Ireland The National Crime Agency provisions would extend to the whole of the United Kingdom, and, like SOCA, the Agency would operate in Northern Ireland and Scotland. However, there are two key differences between the introduction of SOCA in 2005 and that of the NCA. The first is that policing and justice were devolved to the Northern Ireland in 2010.28 The second, as described above, is that the NCA is to have “tasking” powers which SOCA does not. A Home Office Factsheet explains that the National Crime Agency direction powers would apply differently in Scotland and Northern Ireland from in England and Wales.29
19 Ibid, c58 20 Ibid c59 21 PBC 29 January 2013 c186 22 PBC Deb 24 January 2013 c81 23 Ibid c 85 24 Ibid c92 25 ibid c94 26 Ibid c97 27 Ibid c102 28 The Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010 SI 2010/977 29 Home Office, Crime and Courts Bill: Factsheet 5 of 12: the National Crime Agency Tasking and Co-ordination, January 2013
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The Scottish Parliament passed a Legislative Consent Motion (LCM) on 28 June 2012, 30 but on 4 February 2013 the LCM for Northern Ireland was defeated on a vote in the Northern Ireland Assembly.31 The motion was proposed by the Ulster Unionists and supported by the Democratic Unionists, but opposed by nationalist parties. Broadly, unionist parties argued that the NCA was necessary for countering organised crime in Northern Ireland, whilst nationalist speakers said there was insufficient accountability and that it would undermine the Police Service of Northern Ireland and the Patten policing reforms.
The defeat of the LCM was raised in Committee by Ian Paisley, who said that Sinn Fein was “quite content to allow paedophiles and international gangsters to run writ across Northern Ireland.” Jeremy Browne said that the Government was considering how the provisions could be modified and would aim to introduce amendments on Report:
I need to say, on behalf of the Government, that we are disappointed to report that despite extensive negotiation and the offer of a number of significant compromises to reflect the specific policing and accountability arrangements in Northern Ireland, the Northern Ireland Executive have chosen not to take forward the legislative consent motion for the National Crime Agency. We must, of course, respect the devolution settlement in Northern Ireland and the convention that we do not legislate at Westminster on matters within the legislative competence of the Northern Ireland Assembly without its consent.
Accordingly, in the light of the Executive’s decision, we are carefully considering the part 1 provisions to see how they can best be modified to give the NCA some functionality in Northern Ireland but in a way that does not require a legislative consent motion. We will aim to introduce any necessary amendments to the Bill on Report. We will need to work carefully with the Northern Ireland Office and the Department of Justice in Northern Ireland to mitigate the operational impact and preserve as far as we can the operational relationship between the NCA and the Police Service of Northern Ireland. I say again that our commitment to a UK-wide agency, and to working with the Police Service of Northern Ireland to protect the people of Northern Ireland from the corrosive effects of serious organised and complex crime, has not diminished—it remains the same.32
Mr Paisley asked the Government what compromises it proposed, arguing that implementing only some of the provisions would be “the wrong way to go”.33. He said:
I think that we have to recognise that there is a vested interest by some people who are still wedded to the past—there is a vested interest for them to keep their criminal power intact.34
Paul Goggins asked who would be leading the negotiations:
We need to know from the Minister not that the Home Office is waving a white flag, but that it is prepared to go back and have some further, detailed discussions with the Justice Minister and with the parties in Northern Ireland to underline the consequences of the position that they are taking.35
30 Scottish Parliament Official Report, 28 June 2012 31 Northern Ireland Assembly Official Report, 4 February 2013 32 PBC Deb 29 January 2013 c174 33 c175 34 c176 35 c177
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Jeremy Browne said that there were “some red lines for the Home Secretary”, who had not been prepared to negotiate on the wholesale removal of Northern Ireland police powers from NCA officers, and that the Government would have to look at the best outcome that could be achieved.36
2.7 Counter-terrorism The Bill as introduced in the Lords had a clause which would have allowed the Government to transfer counter-terrorism functions currently performed by the Metropolitan Police to the NCA by means of a super-affirmative order. 37 The Government has always been clear that this did not mean that they had made a final decision on whether or not this should happen. That decision would be taken following a review, which will not take place until after the NCA has been established.38 Clause 2 was dropped from the Bill in a defeat for the Government on Report in the Lords39 following arguments from a number of peers that such an important step should require further primary legislation rather than an Order. Further background is in pages 14-16 of Library Research Paper 13/4.
At Second Reading in the Commons, Theresa May, said that she had “no preconceived ideas” about whether the NCA should take on counter-terrorism functions, but that in her view it was “prudent (…) for the Bill as originally introduced to have included a future proofing provision”. However, she would “continue to reflect on the debate in the other place before deciding how best to proceed”.40 Yvette Cooper welcomed Mrs May’s decision to reflect on whether transferring responsibility to the NCA should require primary legislation rather than an affirmative order.41 A number of Labour Members (including Paul Goggins and Jack Straw) urged the Government not to reintroduce the super-affirmative order making power.42
The Government did not introduce any amendments in Committee to overturn this defeat. However, the issue was raised during the debate on an Opposition New Clause (New Clause 1) that the Secretary of State should commission a review of the NCA’s functions no later than one year following commencement of the Crime and Courts Act.43 This was debated alongside the main amendment to clause 5 moved by Stella Creasy, which would have required annual reports on the progress of the NCA and partner agencies in tackling cybercrime.
Ms Creasy said that the purpose of the New Clause was to “ensure that there is a moment to review exactly what the new National Crime Agency will do, particularly on the vexed question of its relationship to the management of terrorism in this country.”44 She noted that the 2,000 strong counter-terrorism command at the Metropolitan Police had been around for many years and had the necessary expertise and relationships.45
Jeremy Browne said that the Government would not be seeking to reinstate the order-making power in Committee, but that this should not be taken as an indication that it had “decided such matters one way or another”. Pressed by David Hanson, he said that the Government were “still assessing” whether they should take such action in advance of the Bill being
36 c178 37 Then clause 2 38 See for example Lord Taylor of Holbeach, HL Deb 27 November 2012 c120 39 HL Deb 27 November 2012 c123-126 40 Ibid, cc635-636 41 Ibid c646 42 HC Deb 14 January 2013 c653 and 658 43 PBC Deb 24 January 2013 c127 and cc136-148 44 c127 45 c136
6 RESEARCH PAPER 13/18 discussed on Report.46 Paul Goggins said that the idea that the Government might publish its new thinking perhaps a day or two before Report would be “utterly unacceptable and outrageous”47 and Stella Creasy said that this was denying the Committee the opportunity to scrutinise the provision. Charles Elphicke said that was “odd” for the Opposition to attack the Minister for choosing to pause and reflect on what the Lords had voted on. Jeremy Browne said:
Before Report, when all Members may contribute, we will set out our intentions. Obviously there may be corresponding legislation or changes to the Bill, but I am not yet in a position to say what they are.48
The main amendment was withdrawn, and New Clause 1 was not called.
3 Civil and family proceedings in England and Wales Jenny Chapman, Shadow Minister for Justice, said that the Opposition agreed that the move to the structure of single courts was desirable.49 She moved a probing amendment (later withdrawn) intended to remove the restriction on the number of days that a family magistrate may sit in the family proceedings court.50 She said that magistrates who had developed strong expertise and experience in delivering justice in family courts should not have their contributions limited to 70 days a year.51 The Family Justice Review had recommended that the restriction on magistrate sitting days should be reviewed.52
The Solicitor-General set out the reasoning behind the current rules and said that discussions on this subject had started. He said that no clear conclusion had yet been reached but that the matter would have to be decided before the family court “is up and running at the beginning of next year”.53
Jenny Chapman also moved new clause 4 which would have required the Lord Chancellor to conduct a periodic review of HM Courts and Tribunals Service, including the Office of the Public Guardian, and the impact of the Bill. At the same time, the Committee considered new clause 5 which would have required the Secretary of State to publish and consult on a strategy for the delivery of legal information, support and dispute resolution services to the public by HM Courts and Tribunals Service. Jenny Chapman said that the clauses were about “confidence, transparency and ease of access to the criminal justice system for the community”. 54
The Solicitor General agreed with the thrust of new clause 4 but questioned whether it was necessary in the light of four matters: the Courts Act 2003 requires the Lord Chancellor to make an annual report on “what is happening with the courts”; the Government promised in their impact assessment that there would be post-legislative scrutiny of both the single county court and the single family court within five years of Royal Assent; HM Courts and Tribunals Service has a transparency agenda, and it routinely publishes performance data; and a complaints analysis and feedback database collects information from courts and tribunals across the organisation which is routinely reviewed by HM Courts and Tribunals
46 c142 47 ibid 48 c143 49 PBC Deb 29 January 2013 c202 50 PBC Deb 29 January 2013 c196 51 PBC Deb 29 January 2013 c199 52 Family Justice Review Final Report, November 2011, published on behalf of the Family Justice Review Panel by the Ministry of Justice, the Department for Education and the Welsh Government, p10 53 PBC Deb 29 January 2013 c202 54 PBC Deb 29 January 2013 c202
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Service. The Solicitor-General agreed that information for court users was important and set out information about what the Government was doing.55
Jenny Chapman withdrew new clause 4. New clause 5 was not called.
A number of technical Government amendments to Schedule 10 (the Family Court) were agreed. The Solicitor-General explained that they pertained to the naming of the justices’ clerk and the assistant to the justices’ clerk: “We thought about a change to “legal advisers,” but have changed our minds, and will stick with the original, tried and tested “justices’ clerk” and “assistant to the justices’ clerk,” as in the Courts Act 2003”.56
Clause 16, Schedule 9, Schedule 10 (as amended) and Schedule 11 were agreed to.
4 Youth courts and gang-related injunctions Clause 17 would give youth courts the jurisdiction to grant gang-related injunctions. The clause stand part debate included a discussion of a New Clause 7 proposed by David Burrowes. This would have given them new powers to respond to concerns that the child was likely to suffer significant harm attributable to the standard of care given to the child at home, or to a child who is beyond parental control. Damien Green argued that the powers were unnecessary; youth courts already had the power to request a local authority to investigate the circumstances of the child under section 9 of the Children and Young Persons Act 1969. This was rarely used because courts accepted that the youth offending team should be the primary conduit for securing information about a child.57 The New Clause was not called.
5 Judicial Appointments Clause 18 and Schedule 13 deal with judicial appointments. Clause 18 was ordered to stand part of the Bill without amendment. Schedule 13 was subject to a Government amendment relating to judicial diversity. At Third Reading in the House of Lords, Lord McNally, indicated that a “tipping point” principle could be applied to appointments to the Supreme Court where two candidates were of equal merit. He stated that the Government’s view was that the tipping point provision contained in s159 of the Equalities Act 2010 already applied to such appointments, but that if there could be a contrary legal view, he could see merit in putting the matter beyond doubt and that the Government would therefore give further consideration to a proposed amendment on that issue.58
Damien Green proposed an amendment to take this forward. He stated that the amendment would:
[A]llow a selection commission to take diversity into consideration when making the final selection decision between two candidates of equal merit. However, I stress that the provisions will come into play only when two candidates for a Supreme Court appointment have satisfied the merit criteria.59
A further Opposition amendment was proposed by Jenny Chapman which would have had the effect of imposing a duty on the Lord Chancellor and Lord Chief Justice to lay before Parliament an annual report describing:
55 PBC Deb 29 January 2013 c211-2 56 PBC Deb 29 January 2013 c215-6 57 PBC Deb 29 January 2013 c224 58 HL Deb 18 December 2012 c1507 59 PBC Deb 31 January 2013 c230
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(a) their performance of the duty in this section;
(b) the contribution made towards a more diverse judiciary in the preceding year; and
(c) the composition of the judiciary, including the number of part-time and full-time judges, gender, educational background and other relevant demographic data.
Damien Green responded he was not persuaded of the necessity of setting out a reporting requirement in primary legislation. He contended that the “majority of the information is already published by both the Lord Chancellor and the Lord Chief Justice, through their work as joint leads on the judicial diversity taskforce”; that the judiciary already published statistical information annually concerning diversity; and, that Parliament had the appropriate mechanisms to invite both the Lord Chancellor and the Lord Chief Justice to discuss what actions they were taking on these matters.60 Jenny Chapman’s amendment was withdrawn and the Government amendment was agreed without a division. There followed an extensive discussion about the role of lawyers in Government and how the Government could encourage those lawyers to apply for judicial appointments.61
6 Enforcement of criminal financial penalties Clause 24 of the Bill62 would provide for the cost of collecting any sums due under a criminal financial penalty imposed on conviction to be borne by the offender, rather than by the state. It would also give the Lord Chancellor the clear ability to contract out the functions of fines officers.
During the clause stand part debate, Andy McDonald asked whether the Government could give any guidance on the likely sums that offenders would be liable to pay in relation to enforcement costs. He asked whether there would be “a risk of heaping debt on debt”.63
On the potential contracting out of the functions of fines officers, Jenny Chapman expressed concern that private operators might “cherry pick” easy cases, which might lead to some cases involving high penalties and victim compensation not being enforced.64 She also said that any contracting out should be delayed until the Government’s proposed reforms to the regulation of private bailiffs had been implemented and had time to bed in.65
In response, Damian Green said that the collection costs covered by the clause “do not apply to the doorstepping enforcement activity undertaken by bailiffs on behalf of Her Majesty’s Courts and Tribunals Service, which are governed for separately”. The costs would instead cover the “labour-intensive processes” that fines officers undertake in pursing fines, such as “sending letter reminders, tracing offenders, validating offenders’ information or arranging deductions from benefits or earnings”.66 He said that it was too soon to say the level at which the collection costs would be set.
Jenny Chapman pressed the clause to a division after reiterating her concerns about the potential contracting out of fines officers’ functions. The clause was ordered to stand part by 10 votes to 7.67
60 PBC Deb 31 January 2013 c236 61 PBC Deb 31 January 2013 cc236-241 62 Previously clause 23 of the Bill as introduced in the Commons 63 PBC Deb 31 January 2013 c242 64 PBC Deb 31 January 2013 c248 65 PBC Deb 31 January 2013 cc247-8 66 PBC Deb 31 January 2013 cc248-9 67 PBC Deb 31 January 2013 c251
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Clause 25 of the Bill68 would enable the courts to access financial information held by HM Revenue and Customs in order to assist the court and fines officers in enforcing financial penalties (for example by accessing details of employment earnings). Jenny Chapman asked whether this would enable private sector organisations to access this information in the event that the functions of fines officers are contracted out, and whether appropriate safeguards would be in place.
Damian Green confirmed that contracted-out staff would be able to use the new “information gateways”, but would be subject to the same safeguards as court staff and to the new criminal offence (set out in the clause) of processing the data in a manner inconsistent with the provisions.69
Jenny Chapman said that the Opposition would not vote against the clause in Committee, but might want to return to it on Report. It was ordered to stand part without division.
7 ‘Enforcement by taking control of goods’: bailiffs The term ‘bailiffs’ and ‘enforcement agents’ are interchangeable. Although the public generally use the term ‘bailiff’, in some legislation and Government documents, the term ‘enforcement agent’ is used to mean all types of bailiffs and enforcement officers.
Enforcement action is necessary when a debtor fails to pay a debt or negotiate a reasonable instalment payment regime with the creditor. There are various debt enforcement methods, including: an attachment of earnings order70; a charging order on the debtor’s property71; or a third party debt order.72 Alternatively, bailiffs may be instructed to collect payment of a proven debt. This is done by the bailiff seizing the debtor’s goods and selling them at auction; using the sale proceeds to settle the debt and costs. This type of enforcement action is used to recover both criminal and civil debts.
Detailed information on the problems identified with the current system of regulation of bailiffs and full background information on the 2012 consultation paper, ‘Transforming bailiff action’, is provided in a separate Library standard note, SN/HA/6230.73 A second Library standard note provides an outline of the current regulation of bailiffs, SN/HA/4103.74
7.1 Background to bailiff reform In recent years, the issue of aggressive bailiff action and the need to protect vulnerable people in society has been raised. It is generally recognised that the current regulatory structure for bailiffs is fragmented.75 It is contained in numerous statutes, secondary legislation and common law and its language is archaic. The fact that there are different types of bailiffs, depending on the type of debt being recovered, creates confusion. Whilst
68 Previously clause 24 of the Bill as introduced in the Commons 69 PBC Deb 31 January 2013 cc252-3 70 If granted by the court, an attachment of earnings order allows for monies to be deducted directly from the debtor’s salary by an employer, who then forwards the money to the court. 71 With a charging order the debt is paid on the eventual sale of the debtor’s property. In most cases, a charging order will be obtained against a debtor’s interest in land (freehold or leasehold) but it could also be against stocks or shares owned by the debtor. 72 A third party debt order is usually made to stop the judgment debtor taking money out of a bank or building society account. The money owed to the judgment creditor is then paid to them from that account. 73 ‘Crime and Courts Bill [HL] – reform of bailiffs’’, Library standard note, SN/HA/6230, 5 March 2013, [online] (accessed 29 February 2013) 74 ‘The current regulation of bailiffs’, Library standard note, SN/HA/4103 ,18 May 2012, [online] (accessed 29 February 2013) 75 Ministry of Justice, ‘Transforming bailiff action – How we will provide more protection against aggressive bailiffs and encourage more flexibility in bailiff collections’, ‘consultation paper CP 5/2012, 17 February 2012,[Online] (accessed 14 February 2013)
10 RESEARCH PAPER 13/18 the law and costs structures relating to enforcement by the seizure and sale of goods are complex, unclear and confusing.76 There is also anecdotal evidence that some bailiffs may use unacceptable methods, including:
Misrepresenting their legal authority - such as threatening the use of force; inappropriately entering a property; threatening to seize goods they are not entitled to; or seizing goods with a value disproportionate to the debt. Charging excessive fees - such as charging for ‘phantom’ visits or charging for activities not carried out. Using threatening behaviour – such as the unnecessary use of force; pushing someone aside to get in the door; or threatening imprisonment.77
This has led to a number of significant Government initiatives, which are outlined below.
Schedule 12 to Part 3 of the Tribunals Courts and Enforcement Act 2007 (TCEA 2007) provides for a new procedure, ‘taking control of goods’, to replace existing bailiff powers. The stated aim is to provide clarity for debtors and creditors. This procedure would govern, among other things:
when and how a bailiff can enter somebody’s premises; what goods they can and cannot seize and sell; and what fees they can charge
This procedure would also be underpinned by independent regulation of the enforcement industry. However, Part 3 is not in force (see below).78
On 17 March 2009, the previous Government implemented the following measures in advance of full independent regulation of bailiffs:
an online certificated bailiff register allowing debtors to check bailiffs’ certification status; an extension to the certification process to ensure that all bailiffs provide a Criminal Records Bureau check with their application; and requiring minimum training requirements and skills as part of the certification process
The Coalition Agreement included a commitment to provide more protection against aggressive bailiffs while at the same time making sure debts could still be collected fairly and proportionately. In the Mid-Term Review, the Government reaffirmed this commitment.
On 13 January 2012, the Government updated the voluntary ‘National Standards for Enforcement Agents’. This code sets out the minimum standards of behaviour expected by bailiffs, in order to protect people from rogue bailiffs who use unsound, unsafe or unfair methods.79
On 17 February 2012, Jonathan Djanogly, then Justice Minister, announced the publication of a consultation paper, ‘Transforming bailiff action’.80 As already mentioned, Part 3 of the TCEA 2007 would codify the current disparate legislation and common law in relation to
76 Ibid 77 Ibid 78 HC Deb 17 March 2009 c 46-47WS 79 Ministry of Justice press notice, Bailiff rules tightened in first step of reform’, 13 January 2012 , [online] (accessed 13 February 2013) 80 Ministry of Justice press notice, Government announces legal regulation of bailiffs’, 17 February 2012, [online] (accessed 13 February 2013)
11 RESEARCH PAPER 13/18 bailiff activities. However, it is the Government’s view that Part 3 contains some inadequacies which need to be rectified before it can be brought into force. The proposed changes were amongst the issues addressed in this consultation.81
The Government’s response, published on 25 January 2013, set out a number of proposed amendments to Part 3 (and Schedules 12 and 13) of the TCEA 2007.82 It is now the Government’s intention to use the Crime and Courts Bill to give effect to these amendments. Once these changes are made, it will be able to bring Part 3 into force and with it a new framework for the regulation of enforcement agents.83
7.2 ‘Enforcement by taking control of goods’: its progress in the Bill As originally drafted, bailiff reform was not part of the Crime and Courts Bill. However, an amendment on bailiffs moved by Baroness Meacher at Third Reading was agreed on division (then clause 26 - Enforcement Services).84
In moving this amendment, Baroness Meacher said her objective was to provide protection for vulnerable people (such as the disabled or mentally ill, or mothers with young children or the elderly) from aggressive bailiffs. The amendment would provide complainants with access to the Legal Ombudsman if bailiffs’ internal complaints processes fail to resolve a dispute. Baroness Meacher assured the House that the Legal Ombudsman was both able 85 and willing to take on this role.
During the Bill’s Second Reading in the Commons, there was no debate on bailiff reform. However, Yvette Cooper expressed her hope that the Government would accept the Lords amendment on the regulation of bailiffs, creating a safeguard to prevent abuse.86
The Government is of the view that the introduction of a statutory complaints regime for bailiffs is unnecessary and disproportionate. Accordingly, it sought to replace clause 26 (Enforcement Services) whilst the Bill was still in Committee with its own amendments to reform bailiff powers. On 25 January 2013, Jeremy Browne tabled a tranche of Government amendments embodied under the heading ‘Enforcement by taking control of goods’.
The Government believes that by amending, and then implementing, Part 3 of the TCEA 2007 (and introducing the other non-legislative reforms set out in the consultation response) it will deal with the great majority of the concerns in relation to aggressive bailiffs and thus remove the case for a statutory complaints regime.87
As amended in Public Bill Committee Clause 26 (Enforcement Services) as the Bill went into Committee was deleted and replaced by the Government’s proposed new clause 23, Enforcement by taking control of goods. Clause 23 seeks to amend Part 3 of the TCEA 2007 by introducing the following provisions:
81 The consultation ended on 14 May 2012 82 ‘Transforming bailiff action – How we will provide more protection against aggressive bailiffs and encourage more flexibility in bailiff collections – The Government Response’,’ response to Consultation CP(R) 12/2013, 25 January 2013, [online] (accessed 1 February 2013) . The Impact Assessment published alongside this consultation was also updated to take account of evidence gained during and following the consultation period. 83 Memorandum submitted by Ministry of Justice, ‘Crime and Courts Bill: Government amendments for commons Committee Stage’, 30 January 2013 84 On Report, Baroness Meacher had moved a more ambitious amendment that would have introduced independent regulation, but this was not pressed 85 HL Deb 18 December 2012 c1475 86 HC Deb 14 February 2013 c647 87 Memorandum submitted by Ministry of Justice, ‘Crime and Courts Bill: Government amendments for commons Committee Stage’, 30 January 2013
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Subsection (3) inserts a new paragraph 18A into Schedule 12. This creates a statutory power to use reasonable force on entry to commercial premises to take control of goods for the enforcement of debts under a High Court or County Court judgment. Subsection (4) inserts a new paragraph 19A into Schedule 12. This creates a statutory power to use reasonable force on re-entry to all premises where the enforcement agent has already taken control of the debtor’s goods (i.e. where a controlled goods agreement has already been entered into) in order to inspect the controlled goods or to remove them for storage or sale. Subsection (5) repeals the provisions empowering regulations to enable the use of force against the person. subsections (6) and (7) repeal the two provisions which create the possibility that the definition of "abandonment" of goods might lead – contrary to the common law position and the policy intention - to controlled goods unsold at auction being deemed to be abandoned and no longer subject to control.
Importantly, the amendments to Schedule 12 include the creation of two new delegated powers to be used by the Lord Chancellor. New paragraph 19A makes provision in relation to the power of an enforcement agent to re-enter premises following a controlled goods agreement (known as ‘walking possession’) for the purpose of inspecting the goods subject to the agreement or removing them for storage or sale. One of the conditions for the new paragraph 19A to apply is that the debtor has been given notice of the enforcement agent’s intention to enter for this purpose.88 New paragraph 19A(2) requires regulations to stipulate the following:
the minimum period of notice; the form of the notice; what the notice must contain; how the notice must be given; and who must give the notice89
The power to make these regulations is exercisable by the Lord Chancellor90 by statutory instrument subject to negative resolution procedure.91
In addition, new paragraph 19A(4) of Schedule 12 to the TCEA 2007 confers on the Lord Chancellor a power to authorise the court to order that this notice period may be less than the minimum stated in the regulations, and to prescribe the circumstances in which the court may make such an order. This new power is also exercisable by the Lord Chancellor by statutory instrument subject to the negative resolution procedure.92
88 Sub-paragraph 1(e) 89 The provision relating to the notice of intention to re-enter mirrors that in paragraph 7(2) of Schedule 12 to the TCEA 2007, which provides in sub-paragraph (1) that the enforcement officer may not take control of goods unless the debtor has been given notice (this requirement is mirrored by the new paragraph 19A(1)(e)), and then in sub-paragraph (2) (mirrored by the new paragraph 19A(2)) that regulations must state the matters there listed (identical to the list in the new paragraph 19A(2)) 90 Section 90(1) 91 Section 90(5) 92 This power exactly mirrors that in the existing paragraph 7(4), and bears to paragraph 19A(2) exactly the same relationship as paragraph 7(4) bears to paragraph 7(2)
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Compatibility with the ECHR A Supplementary Memorandum93 submitted by the Ministry of Justice on 30 January 2013 considered the compatibility of the new bailiff provisions embodied in ‘Enforcement by taking control of goods’ with the following Articles of the ECHR:
Article 1 of the First Protocol (the right to peaceful enjoyment of possessions); Article 6 (the right to a fair hearing before an independent tribunal); and Article 8 (the right to respect for private and family life and the home)
The Government considers that the provisions are compatible with the Convention rights. The relevant arguments and case law taken into account by the Government in arriving at this view are outlined in detail in the Supplementary Memorandum.
8 Broadcasting of court proceedings Clause 28 of the Bill would give the Lord Chancellor powers to bring forward secondary legislation which would allow the recording and broadcasting of court proceedings. In Committee the Government proposed an amendment to strengthen the judiciary’s veto to stop or suspend filming or to prohibit the broadcasting of filmed material. The Minister, Damian Green, explained that the amendment would broaden the test the court used when deciding whether particular proceedings should be filmed or broadcast. Instead of the judicial veto being available where necessary to ensure the fairness of proceedings or to ensure that any person involved in the proceedings is not unduly prejudiced, the test would be broadened to allow the veto to be used where any person may suffer undue prejudice as a result of filming or broadcast. This would include, for example, the court considering the impact on the families of victims and offenders. The courts would also be able to stop or suspend filming or broadcast in the interests of justice, rather than just to ensure the fairness of proceedings. The Minister said this would enable the judiciary to look at the wider impact beyond that on just the proceedings in question when deciding whether to permit filming or broadcasting.94 The amendment was welcomed by the Opposition and agreed.
9 Scandalising the judiciary Clause 29 of the Bill, which would abolish scandalising the judiciary as a form of contempt of court in England and Wales, was ordered to stand part without debate or division.
10 Self Defence Clause 30 would introduce a new test for determining whether a householder had acted lawfully in using force in self defence at his or her place of residence. The degree of force used by a householder would not be regarded as reasonable if it was “grossly disproportionate” in the circumstances as the householder believed them to be. The new test would apply to anyone lawfully present in a dwelling who used force in self defence against an intruder. It would also apply to those who live in buildings which serve a dual purpose (e.g. a shopkeeper who lives above the shop) in both the residential and commercial parts of their premises.
The Committee considered an amendment, moved by Shailesh Vara, which sought to extend the application of the new test to anyone present in the commercial part of a dual purpose premises, whether or not that person dwells in the premises. Shailesh Vara posed the scenario of a carpenter doing work in a home who helps a householder overpower a burglar;
93 Supplementary Memorandum, submitted by Ministry of Justice, Crime and Courts Bill [HL], European Convention on Human Rights, 30 January 2013, [online], (accessed 27 February 2013) 94 PBC Deb 31 January 2013 c264
14 RESEARCH PAPER 13/18 in that scenario the carpenter would be covered by the new, higher test. However, if the carpenter were doing some work in a shop (which had living quarters attached) and helped the shopkeeper overpower a burglar the shopkeeper would be covered by the new, higher test but the carpenter would not. He described this as a clear anomaly and argued that the limit of the provision should be geographical and related to the dwelling or commercial premises associated with the dwelling.95
The Minister responded by stating that the provision is “first and foremost about householder defence”. He clarified that friends and visitors, for example, a child minder, who were lawfully in the dwelling would be covered by the higher test if they used force in self defence against an intruder.96 People who live in buildings that also serve as a workplace would be also be covered – for example a shopkeeper and his or her family in living quarters connected to the shop. The Minister said that the difficulty with the amendment was that it would mean that people visiting a shop or other workplace that happened to have living quarters attached to it could benefit from the heightened defence, regardless of whether they lived in the building. If the defence was widened to cover, for example, customers visiting a shop it would be difficult to justify not extending the defence to other scenarios (such as a person under attack on the street). The Minister said that the new heightened defence was designed to focus on householder defence only, because those are the cases the public are most concerned about.97 The amendment was withdrawn.
Shadow Justice Minister Jenny Chapman repeatedly expressed the view that a change in the law is unnecessary, arguing that there is already clarity in the law and in police guidance. She stated that the proposed change would add confusion rather than protection because the line between disproportionate and grossly disproportionate is not clear.98 Echoing a comment made in the House of Lords, she asked if the Minister could clarify “how many stamps on the head is grossly disproportionate and how many is just disproportionate”.99 She also raised the concern that the change would encourage confrontation and result in burglars arming themselves to a greater degree than they do currently. She spoke of a wide- ranging consensus that the Government’s changes are at best unnecessary and that they could increase risk and confusion. She noted that concerns had been raised by the Director of Public Prosecutions and by other prominent members of the legal profession including Michael Wolkind QC (the barrister who acted on behalf of Tony Martin).
In response to these concerns the Minister stated that the purpose of the provisions “is to give not only greater protection to householders, but greater clarity about the protection they can seek, not least that judges know what Parliament intends”.100 In response to the various scenarios put to him by members of the Committee the Minister said that each individual case would have to be decided by a judge on its own merits, as is required by the police guidance. He said:
The provision gives the individual a greater level of protection because of the likelihood that people are not taking calm and rational decisions about what is happening in such terrifying circumstances, but in the end it is for the courts to decide.101
Jenny Chapman asked the Minister what a householder will be able to do that they cannot do now and what difference the change to the law would make. The Minister refused several
95 PBC Deb 5 February 2013 c 271 96 PBC Deb 5 February 2013, c 277 97 PBC Deb 5 February 2013 c 278 98 PBC Deb 5 February 2013 c273 99 PBC Deb 5 February 2013 c276 100 PBC Deb 5 February 2013 c278 101 PBC Deb 5 February 2013 c279
15 RESEARCH PAPER 13/18 times to engage with individual hypothetical scenarios or to give examples, maintaining that it is not for Ministers to tell individual judges how to do their jobs in future hypothetical situations.102
The Minister addressed concerns that the provision is a vigilantes’ charter saying that people would still be prosecuted if their use of force was unreasonable in the circumstances.103
11 Dealing non-custodially with offenders Clause 31 and Schedule 15 would make changes to the way offenders are dealt with non- custodially. Debate in Committee focussed on the provisions relating to the requirement that all community sentences include an element imposed for the purposes of punishment, the use of restorative justice at the pre-sentence stage and the use of electronic monitoring. A Government amendment removing provisions added in the Lords (following a Government defeat) regarding the delivery of services to female offenders was debated and agreed.
11.1 Punitive elements Part 1 of the schedule would require a court to include in a community order at least one requirement imposed for the purposes of punishment. Jenny Chapman argued that the provision would not result in any change as courts already consider punishment in every case as the first statutory purpose of sentencing. She noted that the Government were not offering the courts any new punishments to impose on offenders.104 Mrs Chapman spoke to an amendment that would have required, alongside the punishment element, a rehabilitation element. She asked the Minister whether he was concerned about the effect that the duty to impose a punishment element would have on a court’s ability to effectively sentence for rehabilitation as well as punishment.
The Minister assured the Committee that the Government did not intend anything in the provision to jeopardise the prospect of rehabilitation for offenders. He stated that the provisions would not prevent courts from imposing requirements that are focused on the offender’s rehabilitation or from imposing a combination of requirements that is most suited to the offender’s needs.105
The opposition also moved a probing amendment to clarify the provision in the Bill that the punishment element does not apply in exceptional circumstances. The Minister was asked what was meant by ‘exceptional’.
The Minister stated that the Government believes that removing the ‘exceptional circumstances’ provision would dilute the proposal so much as to defeat its purpose. The Minister said that whether there are exceptional circumstances is a decision for the court in each individual case.
11.2 Deferring the passing of sentence to allow for restorative justice Paul Goggins introduced a group of amendments to part 2 of the schedule which deals with restorative justice. He said that the purpose of the amendments was to provide greater clarity about the framework and the processes required to achieve the Government’s aim of placing restorative justice on a strong statutory footing.106 He stated that his amendments were based closely on the existing legislative provision for youth conferencing in the Justice (Northern Ireland) Act 2002.
102 PBC Deb 5 February 2013 c281 103 PBC Deb 5 February 2013 c283 104 PBC Deb 5 February 2013 c 287-288 105 PBC Deb 5 February 2013 c 292 106 PBC Deb 5 February 2013 c300
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Damian Green responded that he was not sure amendments in such a form were the best way in which to deliver restorative justice in England and Wales. He stated that he was worried that if a prescriptive scheme was set out under primary legislation this would stifle innovation and the wider natural development of restorative justice in England and Wales. He said that the Government was working closely with the Restorative Justice Council and other key partners to ensure that supporting guidance would be detailed, substantive and cover the points raised by the amendments. He stated that the Ministry of Justice had recently published an action plan for restorative justice across the criminal justice system.107 Paul Goggins said that he was deeply disappointed by the Minister’s response and pressed the lead amendment to a vote. The amendment was negatived on division (by 9 votes to 8). In debate following the division the Minister agreed to meet with Paul Goggins to discuss the amendments.
11.3 Electronic monitoring Part 4 would introduce electronic location monitoring as part of sentence rather than as an ancillary measure to another requirement. Jenny Chapman expressed concern that there is no evidence that ‘tagging’ without supervision makes much impact on either reoffending or rehabilitation.108 Speaking to an amendment that would have provided that an electronic monitoring requirement could be imposed only with a supervision requirement she said:
It is our concern that the Government may consider electronic monitoring as an easy, non labour-intensive alternative to requirements, such as supervision that do the genuine heavy lifting of probation work.109
The Minister stated that the Government was not attracted by restrictions which would risk fettering the court’s discretion about which requirements to impose in a particular case, unless there was a compelling reason for them.110 Mrs Chapman indicated that although she was tempted to press the matter, she would wait until Report and the amendment was therefore withdrawn.
11.4 Provision for female offenders A Government amendment concerned a part of a schedule which had been introduced into the Bill as a result of a Government defeat on division at Third Reading in the Lords. The part would have required contracts between the Secretary of State and probation trusts to place an obligation on trusts to make appropriate provision for the delivery of services for female offenders, including making provision for women to carryout unpaid work and to participate in rehabilitative programmes designed with the particular needs of women in mind. The Minster stated that the Government is committed to addressing the factors associated with women’s offending and that it understands the concerns that promoted the insertion of the part. However, he went on to say that the Government did not believe the provisions were helpful:
Given the ongoing consultation and proposed changes to the structure of service delivery and probation trust, it could be unhelpful to introduce legislation specifying commissioning duties for women’s services.
(...)
With changes on the horizon, we must be mindful that introducing additional statutory provisions could have unintended consequences.
107 See Ministry of Justice, Restorative Justice Action Plan for the Criminal Justice System, November 2012 108 PBC Deb 5 February 2013 c319 109 PBC Deb 5 February 2013 c320 110 PBC Deb 5 February 2013 c322
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The Minister sought to reassure the Committee that the removal of the part from the Bill would not undermine the delivery of appropriate service for female offenders. He pointed to additional Government funding provided to probation trusts to fund women’s community service in 2012-13. Jenny Chapman was not reassured, stating that the part had been added by a consensus in the Lords and that the Government could not continue to provide “words but no action”. She said:
The government keep saying that legislation is not needed because a strategy is coming, but it has not come. We now need the pressure of legislation to make the Government take the issue seriously.111
The Committee divided on the issue and the Government’s amendment, removing the part, was agreed (10 votes to 7).
12 Deferred prosecution agreements Clause 32 and Schedule 16 of the Bill would introduce deferred prosecution agreements (DPAs), a new tool for prosecutors to use in tackling corporate financial and economic crime. The clause and Schedule were added to the Bill without amendment or division, although the Committee considered a number of Opposition amendments.
12.1 Sentencing guidelines Jenny Chapman moved an amendment that would have required the Sentencing Council to produce a sentencing guideline on the financial penalties and remedial measures appropriate for a DPA.112 She said that a DPA-specific guideline would bring transparency to the process, which would in turn encourage public confidence.
In response, the Solicitor-General Oliver Heald said that the Government had originally considered asking the Sentencing Council to produce a DPA-specific guideline.113 However, it had ultimately concluded that producing such a guideline would not be within the Sentencing Council’s statutory remit unless this was altered by primary legislation. He added that the Sentencing Council had also indicated that it intended to produce sentencing guidelines on the appropriate penalties for a number of the offences to be covered by DPAs, such as fraud, money laundering and bribery. The Government considered that these guidelines would serve the purpose of the guidance it had originally envisaged and that a DPA-specific guideline was therefore no longer necessary.114
The amendment was withdrawn.
12.2 Code for prosecutors Schedule 16 of the Bill would require the Director of Public Prosecutions and the Director of the Serious Fraud Office to publish a joint code for prosecutors on the use of DPAs. Jenny Chapman moved a probing amendment that would have required the code to be published in draft, consulted upon and laid before Parliament before coming into effect.115 She said it was
111 PBC Deb 5 February 2013 c330 112 PBC Deb 5 February 2013 c331 113 PBC Deb 5 February 2013 c333. See also Ministry of Justice, Consultation on a new enforcement tool to deal with economic crime committed by commercial organisations: Deferred prosecution agreements, Consultation Paper CP9/2012, May 2012, paras 96-103 114 Ministry of Justice, Deferred Prosecution Agreements: Government response to the consultation on a new enforcement tool to deal with economic crime committed by commercial organisations, 23 October 2012, paras 60-68 115 PBC Deb 5 February 2013 cc334-5
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“vital” to extend consultation best practice into the area of DPAs, given it was “unchartered territory” for the prosecution service.
In response, the Solicitor-General said that the code would principally be an operational document, and that it was important to preserve prosecutorial discretion in operational matters. He assured the Committee that the code would be consulted on in the same way as the Code for Crown Prosecutors (issued by the Director of Public Prosecutions) currently is. The Government did not, therefore, think it necessary to make the code subject to a statutory requirement for consultation or parliamentary approval.
The amendment was withdrawn.
12.3 Distribution of profits Jenny Chapman spoke to two amendments that would have required any money received by a prosecutor under a DPA term requiring the company concerned to disgorge profits from the alleged offence to be paid into the Home Office’s asset recovery incentive scheme (ARIS) instead of the Consolidated Fund.116
Under ARIS, assets recovered under (for example) the Proceeds of Crime Act 2002 by asset recovery agencies such as the police, the Crown Prosecution Service, the Serious Organised Crime Agency and HM Revenue and Customs are paid over to the Home Office. Half of these receipts are then redistributed by the Home Office to frontline agencies, which use the money to develop their asset recovery capabilities or for other crime prevention work.117 The Home Office retains the other half.
Jenny Chapman said that channelling disgorged profits recovered under a DPA to ARIS instead of the Consolidated Fund could “support an important revenue stream for prosecuting and law enforcement agencies, in particular in the light of the current budget cuts being sustained in criminal justice”.118
In response, the Solicitor-General said that ARIS was a non-statutory scheme and, as such, for technical reasons it would inappropriate to make direct reference to it in Schedule 16. In addition, he said that as a DPA would be entered into voluntarily, neither the prosecutor nor the court would be required to enforce the payment of any moneys due under it. Failure to comply would instead result in the consequences set out in the Schedule, which could ultimately include termination of the DPA and prosecution of the organisation. There was therefore no need to incentivise asset recovery work in the same way as is needed in relation to the Proceeds of Crime Act 2002.
Jenny Chapman withdrew the lead amendment but indicated that the Opposition might return to it at a later point.
12.4 Sunset clause The Committee considered an Opposition amendment that would have added a five year sunset clause to Schedule 16. It would also have introduced a statutory requirement for the legislation on DPAs to be reviewed by the Secretary of State before the end of that five year period.
116 PBC Deb 5 February 2013 c336 117 See the written PQs at HC Deb 23 February 2009 cc176-180W for an example of allocations made under ARIS in 2009 118 PBC Deb 5 February 2013 c337
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Jenny Chapman said that this would “ensure a review of how well the provisions were performing before they assumed permanency”.119
In response, the Solicitor-General said that the Government was already committed to reviewing all new primary legislation within five years of Royal Assent in line with the Government’s policy on post-legislative scrutiny. He added that if the provisions had a fixed expiry date, there would come a point at which no DPAs could be entered into because of the uncertainty that the legislation might expire during the term of the DPA.120
The amendment made no further progress.
13 Proceeds of Crime The Government moved a series of amendments on proceeds of crime at Committee stage. These included new Clause 12 and 13 and new Schedule 2 and 3.121 The Home Office submitted a memorandum (C&C 15) from Jeremy Browne to the Public Bill Committee setting out the Government’s reasons for introducing the amendments. Mr Browne, noted that the amendments had been foreshadowed by the Home Secretary at Second Reading.122
He highlighted the fact that the amendments sought to deal with the judgment of the Supreme Court in the case of Serious Organised Crime Agency v Perry.123 The issues in the case of Perry were whether the court’s jurisdiction to impose property freezing orders under s.245A of the Proceeds of Crime Act 2002 (POCA) applied exclusively to property within the UK and also whether the jurisdiction to impose disclosure orders under s.357 of that Act applied only to persons within the UK. The memorandum stated that the Supreme Court had ruled in favour of Perry in an appeal and had determined that property freezing orders (and by implication orders under Chapter 2 of Part 5 of POCA) could not extend to property outside the territorial jurisdiction of the court, and that disclosure orders were only available in respect of persons who were within the territorial jurisdiction of the court. The Court also commented on whether a disclosure order could go beyond property already known.
The Minister indicated that:
This adverse decision has a significant impact on the effectiveness of the civil recovery regime. The original intention of POCA was that civil recovery should extend beyond the jurisdiction of the court and that there should be no bar to civil recovery on the basis of extraterritorial location of property, possession or control because the proceeds of crime, in particular organised and large scale crime, are rarely held in one country and are often placed in jurisdictions where recovery is difficult. However, it was intended that there should be or have been a connection between the case and the United Kingdom before a civil recovery claim is brought.
As originally enacted, the legislation assumed that the fact that the statute referred to property wherever situated allowed such reach, but the Supreme Court ruling has made it clear that this is not the case. The amendments seek to reverse, as far as possible, the effect of the Perry judgment by making express provision for the extra- territorial reach of the powers in POCA.
119 PBC Deb 5 February 2013 c339 120 PBC Deb 5 February 2013 c339 121 Now Clauses 33and 34 and Schedules 17 and 18 122 HC Deb 14 January 2013 c636 123 [2012] UKSC 35, [2012] 3 W.L.R. 379 (SC). See also: D. Lightman,” Case of the Week: Criminal Procedure”, The Lawyer, 8 August 2012. For a discussion of some of the issues prior to the judgment of the Supreme Court, see for example: Y. Johnson, “Civil recovery: is the erosion of individual rights justified?”(2011) Vol 30 No. 2 Civil Justice Quarterly 136-142
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The memorandum also stated that:
The provisions, insofar as they amend Chapter 2 of Part 5 of POCA, will have retrospective effect and early commencement which will mean that on Royal Assent POCA is returned to the position we believed it had since the time of enactment.
The amendments would make a number of changes to Parts 5 and 8 of the POCA in order to achieve the abovementioned aims. In addition to memorandum C&C15, the Government also submitted a Supplementary ECHR Memorandum (C&C16) on issues that arose under the European Convention on Human Rights. This addressed the retrospective effect of the measures and certain other issues that arose under Article 6124, Article 8125 and Article 1 of the First Protocol to the Convention.126
At the Committee, Jeremy Browne contended that the Government was:
[N]ot trying to break new ground; we are trying only to recover ground that we had not realised, until the judgment, that we had lost. There is no new policy. The provisions do not extend the reach of the Proceeds of Crime Act beyond that envisaged in 2002.127
He stated that the provisions provided:
[A] non-exhaustive list of the connections whereby property located overseas can be subject to freezing, recovery and investigation in civil recovery proceedings in the United Kingdom. Those connections include that the unlawful conduct took place here, that the property is or has been here, and that the person who carried out the unlawful conduct, the victim or the persons who hold or have held the property are or have been here, or are a British citizen.128
Mr Browne noted that a devolution issue had arisen, insofar as:
[T]he Northern Ireland Executive have failed to reach agreement on a legislative consent motion for our amendments in response to the judgment. We are carefully considering the implications of the Executive’s decision with a view to bringing forward any necessary amendments to these provisions on Report so that the UK Parliament only legislates on matters within the legislative competence of the Northern Ireland Assembly with the consent of that Assembly.129
Ian Paisley expressed concerns about the fact that the provisions might be undermined if they did not extend UK wide.130
David Hanson stated that the Opposition supported the measures in principle.131 He also queried the steps that would be taken on Northern Ireland. Jeremy Browne responded that the Government was “working with politicians in Northern Ireland” and that if necessary the Government would “table amendments on Report.”132
The new clauses were agreed without a division.
124 Right to a Fair Trial 125 Right to Private and Family Life 126 Protection of Property 127 PBC Deb 12 February 2013 c429 128 Ibid 129 PBC Deb 12 February 2013 c430 130 PBC Deb 12 February 2013 c431 131 PBC Deb 12 February 2013 c432 132 PBC Deb 12 February 2013 c433
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14 Extradition The use of both the European Arrest Warrant (EAW) system and extradition outside the EU (particularly under the UK/US Extradition Treaty) has proved contentious in recent years. The House of Commons Library Standard Note Extradition and the European Arrest Warrant – Recent Developments (SN 6105) provides a comprehensive history of these issues. In short, however, the Government commissioned an independent review into extradition which reported in October 2011. The Home Secretary responded to that report in October 2012, when she announce that a new ‘forum bar’ to extradition would be introduced, and that decisions relating to whether extradition would amount to a breach of a suspect’s human rights would now be a matter left to the judiciary. These two issues are addressed in more detail below.
At Second Reading of the Crime and Courts Bill, the House Secretary stated that amendments to the Extradition Act 2003, to meet the abovementioned concerns, would be introduced at Committee Stage. The Minister of State, Jeremy Browne, wrote the members of the Public Bill Committee on 5 February 2013 explaining the proposed new clause and schedule to the Bill.133
The letter indicated amongst other things, that:
The introduction of a forum bar to extradition responds to the widespread concern in Parliament, and amongst the public, that insufficient safeguards are currently built into cases of concurrent jurisdiction (that is, where two or more courts from different countries simultaneously have jurisdiction over a specific case).
It also said:
At present, the Home Secretary is obliged to consider human rights issues raised after the person has exhausted their statutory appeal rights because she is a ‘public authority’ for the purposes of the Human Rights Act 1998 (HRA) and section 6(1) makes clear that public authorities must not act in a way which is incompatible with the European Convention on Human Rights (ECHR).
If a person raises new human rights matters that have not been considered previously during the progress of an extradition case, the Home Secretary must consider them to ensure that the person’s extradition would be compatible with those rights. This can lead to significant delays while cases are considered, and any decision to uphold the extradition may be challenged in the courts.
By specifically preventing the Secretary of State from considering whether extradition is compatible with the ECHR and transferring consideration of such matters to the courts, the amendments to the 2003 Act will strike the correct balance between, on the one hand, ensuring late human rights issues which are deserving of the court’s attention are considered and, on the other hand, ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last minute, specious human rights points which can then be the subject of Judicial Review. This change will also significantly reduce delays in cases which are currently referred to the Home Secretary and will ensure that decisions about judicial issues such as these are, rightly, taken in the courts.134
133 Home Office, Crime and Courts Bill, Supplementary Memorandum C&C 15, February 2013 134 Ibid
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The new Clause 11 and new Schedule1135 were duly proposed by Jeremy Browne. Mr Browne gave the Committee a fairly detailed description of the ‘forum provision’ proposed by the Government. In particular, he stated that the provisions were “designed to minimise delays while still providing greater openness and safeguards for those who are subject to extradition proceedings.” He said that the forum amendments would “allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice.” He went on to explain how this would work in practice:
In considering whether or not to bar extradition, a judge will have to consider whether a substantial measure of the alleged offences occurred in the UK. The judge must also, and only, consider where most of the harm occurred or was intended to occur; the interests of any victims; whether the Crown Prosecution Service or its equivalent considers that there should be no prosecution in the UK; whether the evidence is available in the UK; the desirability and practicability of all prosecutions relating to the offence taking place in one country; and the person’s connections with the UK. Those factors broadly reflect the issues that the CPS has to consider under its published guidelines for handling concurrent jurisdiction cases.
Importantly, the judge must have regard to the desirability of not requiring the disclosure of any matter that is subject to restrictions on disclosure in the requesting state. The provision is deliberately worded broadly so as to ensure that the judge places weight on the views of the requesting state that material that is sensitive in their jurisdiction is not disclosed in open court.136
The new provisions allowed for the issuing of a ‘prosecutor’s certificate’ in circumstances where the prosecutor has taken a formal decision not to prosecute in the United Kingdom because there was insufficient admissible evidence available; because it was not in the public interest for such a prosecution to take place; or, because there were concerns about the disclosure of sensitive material in any UK proceedings. The issuing of such a certificate would prevent extradition being barred on forum grounds. Mr Browne explained that:
The purpose of the prosecutor’s certificate is to ensure that the subject of the extradition request—perhaps somebody wanted for a very serious offence—does not escape prosecution altogether because a domestic prosecution is not possible [...]. Although the issuing of the prosecutor’s certificate means that forum will not be considered as part of the extradition proceedings in the magistrates court, the decision to issue one can be judicially reviewed as part of any extradition appeal to the High Court. These new measures will apply to European arrest warrant and non-EAW cases covered by the Extradition Act 2003.137
He went on to note that Part 2 of the new Schedule related to the Home Secretary’s consideration of ECHR matters. Mr Browne argued that by preventing the Secretary of State from considering whether extradition is compatible with the ECHR and transferring examination of such cases to the courts, the new Schedule would:
[S]trike a better balance between the two competing considerations of ensuring that there is consideration of late human rights issues that are deserving of the court’s attention and ensuring that people cannot abuse the system and endlessly delay extradition through last-minute, specious human rights points that may be subject to judicial review.138
135 Now Clause 35 and Schedule 19 136 PBC Deb 12 February 2013 cc413-4 137 PBC Deb 12 February 2013 c414 138 PBC Deb 12 February 2013 c415
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He added that the change would “significantly reduce delays in cases that are currently referred to the Home Secretary.”139
In response, David Hanson noted that the new provisions on extradition had been published very late and that “important matters that were highlighted in October last year have been brought late to Committee, in the twilight of the Committee stage.”140 He indicated that it had not been possible to table amendments in Committee.141 He raised a number of concerns about the forum bar that had been put forward by the NGO Liberty142 He also raised an issue, which had been highlighted by the NGO Fair Trials International143, as to whether the Government would give consideration to proposals as part of a package so that no extradition would take place until a case was ready for trial, “to prevent the many cases of premature extradition currently blighting the system.”
Some members questioned what the effect of the removal of the Home Secretary’s duty to consider ECHR representations would have on a case such a Gary McKinnon’s.144
In respect of the issue of the forum bar, Jeremy Browne replied that the use of an alternative forum bar (which had been inserted by the Police and Justice Act 2006, but never brought into force) was inappropriate because it was “too cumbersome” and “too widely drafted” and would “not have the desired effect of striking this correct balance between preventing inappropriate extraditions and not allowing perfectly reasonable requests to be unduly thwarted.”145 In response to questioning, the Minister noted that a devolution issue arose, stating that
[E]xtradition is a reserved matter, and the fact that certain functions of the Home Secretary are being transferred to Scottish Ministers in part 2 of the Bill does not change that position. However, because Scottish Ministers and courts have a role in the process, we have decided that the provisions should be commenced only with their consent.146
Similar issues arose in Northern Ireland.147 The new clause was added to the Bill without a division.
15 Border Control 15.1 Appeals against refusal of entry clearance to visit the UK Amendment 83, tabled by the Opposition, would have required the Home Secretary to introduce provisions for UK Border Agency (UKBA) staff to communicate with applicants in order to obtain additional information before making a decision on an application. Damian Green, Home Office Minister, said that the amendment was not needed, since entry clearance officers are already authorised to contact applicants, and do so in appropriate cases. He argued however that it would be disproportionate to introduce a general requirement to make enquiries, and that it would have significant implications for UKBA
139 Ibid 140 PBC Deb 12 February 2013 c416 141 PBC Deb 12 February 2013 c418 142 Ibid 143 See also: Memorandum submitted by Fair Trials International (C&C 21) 144 PBC Deb 12 February 2013 c420 145 PBC Deb 12 February 2013 c423-4 146 PBC Deb 12 February 2013 c425 147 PBC Deb 12 February 2012 c426
24 RESEARCH PAPER 13/18 resources and the speed of decision-making.148 The Committee divided on the amendment, which was negatived by 9 votes to 7.149
Stella Creasy maintained that the clause, which seeks to remove the full right of appeal in family visitor visa cases, was “unfair and a false economy” and did not have the Opposition’s support.150 The clause (now clause 37)151 was ordered to stand part by 10 votes to 7.152
15.2 Restriction on right of appeal from within the United Kingdom Damian Green emphasised that the power to exclude an individual from the UK is used “very sparingly”, for the highest harm cases involving terrorist-related activity, serious criminality or engagement in unacceptable behaviour. Nevertheless, the Opposition sought assurances about how the power to restrict a right of appeal against a decision to cancel leave would be used.153
In response to the suggestion that a person with refugee status might be put at risk of refoulement if their status was revoked whilst they were outside the UK and they were left with an out of country right of appeal, Damian Green said “that would be the precise argument that would be tested in the courts”, emphasising that in any case the person would have access to an appeal argued in the UK.154 Rejecting “the idea that the necessity to appear in a court should outweigh the necessity to protect public safety”, he outlined various actions which could be taken to enable an excluded person to give evidence from overseas, such as the use of video links.155
The clause (now clause 38) was ordered to stand part of the Bill without a division.156
15.3 Powers of Immigration Officers The Opposition sought further information about how the Government envisaged the new powers being used, through probing amendments. Amendment 84 aimed to clarify that powers to interfere with property and wireless telegraphy would only be available to staff working in the UKBA’s Criminal and Financial Investigation team, by inserting a reference to the teams into the clause. However, Damian Green said that the amendment would reduce the safeguards on the use of those powers, by allowing for staff in the Criminal and Financial Investigation teams to authorise their use. In contrast, the Bill intended that only designated senior officials in the UKBA with equivalent seniority to a chief constable in a police force (in practice, the Director of Operations and Deputy Chief Executive) could authorise the use of the powers.157
Acknowledging the intention behind the amendment, Damian Green gave an assurance that “we will limit the powers to specially trained immigration officers investigating immigration crime”.158 However, he said that the Government did not consider that it was necessary to make this explicit in primary legislation, pointing out that the legislation giving the powers to customs officers is not so specific. Furthermore, referring to the Criminal and Financial Investigation teams in primary legislation would create practical difficulties in the event of
148 PBC Deb 5 February 2013 c350 149 PBC Deb 5 February 2013 c355 150 PBC Deb 5 February 2013 c355 151 Clause 34 of the Bill as discussed in Public Bill Committee. 152 PBC Deb 5 February 2013 c357 153 PBC Deb 5 February 2013 cc358-366 154 PBC Deb 5 February 2013 c362 155 PBC Deb 5 February 2013 cc363-4 156 Clause 35 of the Bill as discussed in Public Bill Committee. 157 PBC Deb 7 February 2013 c371 158 PBC Deb 7 February 2013 c371
25 RESEARCH PAPER 13/18 future organisational changes. He emphasised that immigration officers’ use of the powers would be subject to scrutiny and oversight by the Office of Surveillance Commissioner (as is already the case for UKBA customs officials’ use of covert investigatory powers).159
Amendment 84 was withdrawn. The clause, now clause 40 (and Schedule 20), was agreed to without a division.160
15.4 New clause: Deportation on national security grounds: appeals New clause 39, tabled by the Government at Committee stage, seeks to restrict the availability of in-country appeal rights (i.e. those which are ‘suspensive’ of removal) in national security deportation cases.161
The clause would give the Home Secretary the power to certify that deportation prior to an appeal against the deportation order having begun or been exhausted would not breach the UK’s obligations under the European Convention on Human Rights (ECHR). The clause specifies two grounds in particular on which a decision to certify could be made:
That, before the appeals process had been exhausted, the person would not face a “real risk of serious irreversible harm” if removed; and/or
That the human rights claim is wholly or partly “clearly unfounded”.
The effect of a decision to certify would be that the appellant would have an out of country right of appeal.
The Home Secretary’s decision to certify that deportation prior to an appeal would not contravene the UK’s ECHR obligations would be subject to review by the Special Immigration Appeals Commission (SIAC), in line with judicial review principles. SIAC could direct that the person is not removed from the UK whilst the application for review remains unresolved. Rules for the handling of the reviews would be made by the Lord Chancellor through secondary legislation, under powers granted by section 5 of the Special Immigration Appeals Act 1997. Such rules would provide for the reviews to be handled “expeditiously”.
The clause was briefly discussed at Committee Stage.162 Speaking on behalf of the Opposition, David Hanson said that clear definitions of “serious irreversible harm” and “clearly unfounded” should be placed on record, so that persons resisting deportation could not exploit any ambiguity. In response, Damian Green said that both concepts are already “well-established” and supported by a body of case law at national and European level. The Home Secretary has had powers to certify an asylum or human rights claim as “clearly unfounded” for many years, under section 94 of the Nationality, Immigration and Asylum Act 2002. The “serious irreversible harm” test is intended to mirror the test applied by the European Court of Human Rights (ECtHR) when considering whether states must grant in- country appeal rights and when deciding whether to direct that states do not remove an appellant prior to the ECtHR having determined the appeal application.
A supplementary ECHR memorandum prepared by the Home Office sets out in detail the Government’s view on why the provisions to restrict in-country appeal rights to cases where
159 PBC Deb 7 February 2013 cc371-3 160 Clause 36 and Schedule 17 of the Bill as discussed in Public Bill Committee. 161 New clause 14 as discussed in Public Bill Committee. 162 PBC Deb 12 February 2013 cc434-37
26 RESEARCH PAPER 13/18 there is a risk of “serious irreversible harm” and to certify claims as “clearly unfounded” are compatible with the ECHR.163
The Home Office acknowledges that if the new clause is approved, there will still be significant constraints on its ability to deport before an appeal takes place in national security cases. This is because such cases regularly involve human rights claims where individuals may face a real risk of serious, irreversible harm on return. However, the Government considers that the clause “will support the Government’s ability to deport in cases where individuals raise less fundamental human rights issues, such as the right to a private life”, and address Government and Parliament’s interest in obtaining faster deportations of foreign nationals on nationals security grounds.164
16 Drugs and driving – clause 41 and Schedule 21 Information about the wider issues associated with drug driving, including roadside testing, drug screening devices and other evidential problems, can be found in HC Library note SN2884; information on the proposals in the Bill and comment on debate in the Lords can be found in section 8 of HC Library research paper RP13/4, both available on the Parliament website.165
There is broad cross-party agreement on this issue. No amendments were made to the provision in Committee.
At Second Reading, the Home Secretary, Theresa May, introduced the proposed new offence as one which would contribute to road safety and support the Government’s “zero- tolerance approach on illicit drugs”.166 However, Mrs May did acknowledge the concerns that had been raised in the Lords about the possible impact of the new offence on those who take controlled drugs on prescription. She said:
... we have no intention of preventing people from driving where they are taking medication in accordance with medical advice, so the Bill includes provision for a medical defence. We will also want to take into account views expressed in response to the required consultation on the draft regulations, but I believe we must take a strong stand against those who would put other lives at risk by driving under the influence of drugs.167
The Shadow Home Secretary, Yvette Cooper, said that the Opposition “support stronger action against drug-driving. People who drive dangerously, and even kill and maim, on our roads because they have taken illegal drugs and cannot control their cars should be caught and prosecuted”.168
In Committee the Opposition tabled four amendments to what is now clause 41. The Opposition Spokesman, David Hanson, stated that amendments 5, 6 and 7 were designed to achieve the following:
The amendments taken together were to delete the proposal in the Bill that once charged with drunk driving, the onus is on the defendant to prove that the exact instructions from the manufacturer were followed. Under amendments 5, 6 and 7, the onus instead is on the prosecution to prove beyond reasonable doubt that the
163 Public Bill Committee, Associated Memoranda submitted by Home Office (C&C 16), February 2013 164 Public Bill Committee, Associated Memoranda submitted by Home Office (C&C 15), February 2013 165 HC Library, Driving: drugs, SN2884, 8 June 2012; and: Crime and Courts Bill, RP 13/4, 9 January 2013 166 HC Deb 14 January 2013, cc640-41 167 ibid., c642 168 ibid., c644
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defendant knowingly took the drugs in a way that the manufacturer did not intend. One of the concerns put to us very strongly—this should not be a strange argument to the Minister, because it was raised in another place—is the argument that some of the drugs that potentially fall under clause 37 could be drugs that are taken for a cold, flu or other illnesses, or else standard drugs which could change, once taken, and impact upon any drug test downstream.169
The Minister, Jeremy Browne, replied that the Government “fully accept that the concerns [about prescription drugs] are legitimate”, and sought to reassure the Committee that: “the medical defence itself provides considerable protection to those taking properly prescribed or supplied medical drugs” because it:
... places what is known as an evidential burden on a person accused of committing the offence. In practice, that means that the accused person must simply put forward enough evidence to raise an issue regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on. In other words, if somebody were to bring forward a prescription, that would be sufficient, unless it could be proven by the other side that they had behaved improperly.170
He also made the point that there was a self evident protection where those taking legal drugs did not drive in a manner which would bring them to the attention of the police. He said:
... in most cases those on prescribed medicine containing specified controlled drugs would only come to notice—this relates to the point made by the hon. Member for Dover—if their driving was impaired or for some other reason requiring police action. It is important that the Committee appreciates that the police can only stop and question an individual driver in very particular circumstances, such as when they have been involved in an accident. People who are taking their medication appropriately and driving safely would no more expect to be stopped under this legislation than they are today.171
Opposition amendment 112 would require the Government to review the implementation of the new offence within 12 months of Royal Assent and present a report to the House.172 The Minister resisted this amendment on the grounds that once the new offence is in operation, it would be subject to the normal post-legislative scrutiny process, the Government would commission research to evaluate the effectiveness of the new offence, and the results would be published. Furthermore, he did not expect that the measure would come into effect until the end of 2014.173
The Opposition withdrew their amendments and indicated that at Report stage they may return to the issue of legal and prescription drugs.
There was a short debate on stand part for what is now Schedule 21, which covers the new offence and the relevant penalties for it. The Minister clarified the fact that someone’s being over the prescribed limit for drugs or alcohol would be sufficient for the prosecutor to be able
169 PBC Deb 7 February 2013, c375 170 ibid., c378 171 ibid., cc380-81 172 ibid., c384 173 ibid., c389
28 RESEARCH PAPER 13/18 to make the decision to charge them with a serious offence and they would not additionally have to independently prove careless driving as the standard of driving.174
On 7 March the Government published the report of the Independent Panel, led by Dr Kim Wolff, on driving under the influence of drugs. In a statement the Transport Minister, Stephen Hammond, said:
The Government will carefully consider the Panel’s recommendations. In doing so, we are clear that the design of the new offence must send the strongest possible message that you cannot take any amount of illegal drugs and drive.
At the same time the Government must consider the position of those who legitimately and safely use medicines which may contain controlled drugs. We recognise that for the purposes of drug testing, distinguishing between those drugs which do have medical uses and those which do not is complex. We must ensure that the new offence would not unduly penalise drivers who have taken properly prescribed or supplied drugs in line with medical advice.
Later in the year the Government will make specific proposals regarding the drugs to be specified in regulations for the new offence. These proposals will be subject to a public consultation. After taking account of any responses received, regulations containing the final proposals would then need to be approved by Parliament before they could become law.175
17 “Insulting” words and behaviour: Amendments to the Public Order Act 1986 Library Standard Note 5760176 sets out the background to a campaign to remove the word “insulting” from section 5 of the Public Order Act 1986. Section 5 makes it an offence to use “threatening, abusive or insulting words or behaviour, or disorderly behaviour” or to display “any writing, sign or other visible representation which is threatening, abusive or insulting” within the hearing or sight of a person “likely to be caused harassment, alarm or distress thereby”. At the Lords Report stage of the Bill,] the Government resisted a new clause which would remove the word “insulting”, but this was agreed to on division. It is now clause 42. However, in the Commons Second Reading debate the Home Secretary said that whilst the Government support the retention of section 5 as currently worded, it is “not minded” to challenge the amendment in the light of assurances from the Director of Public Prosecutions.177 The shadow Home Secretary, Yvette Cooper, called for the Government to provide an assessment of the impact of section 5 on different groups, particularly vulnerable and minority ones.178
In Committee, David Hanson moved an amendment to require the Government to publish an impact assessment within 12 months of the Bill’s enactment. Stella Creasy recognised the broad campaign for change, but said that it was not desirable “to inadvertently open the door to the persecution of minority groups”.179 Jeremy Browne said that the Government were content for the clause to remain in the Bill in the light of advice from the Director of Public
174 ibid., c395 175 Statement by Stephen Hammond, 7 March 2013; the report is available on the DfT website 176 Insulting words or behaviour": Section 5 of the Public Order Act 1986, last updated 15 January 2013 177 HC Deb 14 January 2013 c462 178 Ibic c648 179 PBC 12 February 2013 c402
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Prosecutions, and that the Government would ensure the police had “clear guidance”.180 The amendment was withdrawn.
18 Proposal for reform of criminal law on child neglect A new clause was proposed to replace the current offence of cruelty to persons under sixteen, under section 1 of the Children and Young Persons Act 1933, with a new offence of child maltreatment. The clause was drafted by a panel of experts as part of a campaign by the charity Action for Children. The campaign argues that the current law is out of date because it seeks only to protect children’s very basic physical needs and fails to reflect their emotional and developmental needs. The Minister, Damian Green, stated that the existing section 1 offence already covers a wide range of behaviour and the courts have applied the provisions to cover serious forms of emotional abuse. The Minister stated that he would be meeting with representatives from Action for Children to discuss the issues and officials would work with the charity to consider any evidence it has that the current law is not working. Paul Goggins (Labour), speaking to the new clause, stated that he took the Minister’s point that the courts can interpret legislation over time but said that there had to be a limit to that and a point at which a fresh look is needed. The new clause was withdrawn and Mr Goggins expressed a hope that there would be ‘something to show’ on the issue by the time the Bill reached Report.181 Further background information can be found in the Library Standard Note Calls for reform of the criminal law on child neglect, (SN/HA/6372, 4 March 2013).
180 Ibid c407 181 HC Deb 12 February 2013 c 454
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Appendix 1 Membership of the Committee
The Committee consisted of the following Members:
Chairs: Martin Caton and Nadine Dorries
Gavin Barwell (Croydon Central) (Con)
Mr Jeremy Browne (Minister of State, Home Department)
Mr David Burrowes (Enfield, Southgate) (Con)
Jenny Chapman (Darlington) (Lab)
Stella Creasy (Walthamstow (Lab/Co-op)
Charlie Elphicke (Dover) (Con)
Paul Goggins (Wythenshawe and Sale East)(Lab)
Damian Green (Minister for Policing and Criminal Justice)
Mr David Hanson (Delyn)(Lab
Oliver Heald (Solicitor-General)
Andrew Jones (Harrogate and Knaresborough)(Con)
Jack Lopresti (Filton and Bradley Stoke)(Con)
Steve McCabe (Birmingham, Selly Oak)(Lab)
Andy McDonald (Middlesbrough)(Lab)
Ian Paisley (North Antrim)(DUP)
David Rutley (Macclesfield)(Con)
Mr Robert Syms (Poole)(Con)
Mr Shailesh Vara (North West Cambridgeshire)(Con)
Valerie Vaz (Walsall South)(Lab)
Phil Wilson (Sedgefield)(Lab)
Simon Wright (Norwich South)(LD)
31