The House of Lords concluded report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill with three votes on Tuesday. The session on this fifth day went on until past midnight.

Lord Beecham (Labour) moved an amendment on referral fees. He said: “The amendment deals with the position of not-for-profit organisations. We are entirely at one with the Government in seeking to ban referral fees made to commercial organisations simply for the purpose of making profits. However, some organisations – be they charities or membership organisations – receive referral fees from firms of solicitors and perhaps from others…whose contributions help those organisations carry out their main purpose.”

For the government, Lord McNulty called the amendment “wrong headed” and said it would make a mockery of the ban on referral fees. The House agreed, and the amendment was defeated by 257 votes to 173.

Five years ago Baroness Corston (Labour) produced a report on a review of women with particular vulnerabilities in the criminal justice system. In moving a proposal for a new clause to set up a Women’s Criminal Justice Policy Unit she said that, in her report, “I called for a joined-up response across government to address the multiple and complex issues in the lives of women offenders and – I emphasise ‘and’ – women at risk of offending.” After a detailed and, at times, passionate debate, the House divided and arrived at an “equality of votes” with members voting 217 – 217. As there was no majority, the vote meant a government win.

Moving a new clause to cover a duty to release certain prisoners serving a whole life sentence, Lord Lloyd of Berwick (Crossbench) said: “I can see no good reason why the noble Lord should not accept this anodyne amendment. Anodyne it is. It cannot possibly do any harm. The only purpose of it is to give back to whole life prisoners the expectation of a review.” The House disagreed by 90 votes to 60.

There was a rare moment of agreement when Lord Pannick (Crossbench) moved a new clause covering payments in respect of pro bono representation before the Supreme Court. Minister of state Lord McNally said: “We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.”

Many other matters were discussed, including proposed amendments on such subjects as the offence of squatting in a residential building, scrap metal theft and disclosure of information about convictions of violent abusers to members of the public (Clare’s Law), which were withdrawn .

One such debate gives a flavour of the Lords. A noble lady proposed a new clause about awareness of sentencing options. First she thanked those noble Lords who had added their names to the amendments, “in particular my hero the noble and learned Lord, Lord Woolf.” The minister welcomed her input but hoped that she would feel able to withdraw her amendment. The proposer replied “My Lords, I cannot thank everybody who has contributed to this debate warmly enough”, and she was encouraged by the minister’s response. And of course she withdrew her amendment, because this is the House of Lords.

Third reading next Tuesday is the final chance for the Lords to debate and change the contents of the bill. Amendments at third reading in the Lords are often used to clarify specific parts of the bill and to allow the government to make good any promises of changes to the bill made at earlier stages. But don’t hold your breath.

The government’s controversial legal aid bill has suffered its ninth defeat in the House of Lords. The bill has now suffered more defeats in the Lords than either the health or welfare reform bills.

On Monday, the third day of Report, the government seemed to have hit on a strategy to reduce potential defeats by the simple expedient of not starting the debate until after six o’clock, a ploy bitterly objected to by the opponents. The government won two battles – on legal aid for immigration (198 to 179) and debt management and relief (194 to 151). The session continued till well past eleven o’clock, and proposers of amendments felt forced to withdraw rather than press to a division with attendance reducing as the evening progressed.

Reading ‘Hansard’ it was like the last movement of Haydn’s Farewell symphony where, during the final adagio, one by one, each musician stops playing, snuffs out the candle on his music stand, and leaves in turn, so that at the end there are just two muted violins left – in this case the indefatigable minister of state Lord McNally and Lord Thomas of Gresford.
The debate on day four, Wednesday, commenced at the more civilised time of mid-afternoon, and the government promptly lost three votes. Baroness Grey-Thompson (Crossbench), the former Paralympic athlete, proposed amendment 119 against the mandatory use of telephone advice lines. She said of the amendment: “It seeks to remove the provisions for both a mandatory telephone gateway and the delivery of legally aided services exclusively by telephone. Instead, the amendment would insert a duty to promote the plurality of provision and the delivery channels in order to have regard to the needs of clients when procuring services. The Government risk excluding vulnerable people from accessing meaningful and effective legal advice.”

Lord Phillips of Sudbury said that “where the person needing help is poor, confused and deprived, the notion that one should add to that catalogue of disadvantage the inability to access the only advice that will work for them – face-to-face advice – would be a terrible indictment of our claim to be a democracy where we are equal before the law.” The House agreed by 234 votes to 206.

Amendments 132AA and 132AB, covering proposals to alter ‘no win, no fee’ agreements for damages for respiratory and industrial disease, led to two more defeats. Lord Alton of Liverpool (Crossbench) moved a new clause in amendment 132AA, to exclude victims of the asbestos-related condition mesothelioma from the bill’s reforms. It was supported by 189 to 158. By the narrower margin of 168 to 163, peers voted to exclude victims of all industrial diseases from the changes on an amendment proposed by Lord Bach (Labour).

The government got one back when Lord Beecham’s amendment, on the conditional fee agreements system and qualified one-way cost-shifting and uplift in general damages, was defeated by 237 votes to 189.

Battle recommences next Tuesday. By my reckoning the government are currently down 9 – 4 overall. But the victories could be pyrrhic if the government just reverse them in the Commons.

Wednesday was the second day of Report stage for the Legal Aid, Sentencing and Punishment of Offenders Bill in the Lords. Four divisions took place during the debate, resulting in three government defeats and one government win.

Baroness Doocey (Liberal Democrat) moved amendment 11. She said: “The amendment concerns the proposals in the Bill to remove legal aid for appeals against official decisions about entitlement to welfare benefit. These proposals will seriously inhibit claimants’ access to justice, will not deliver the savings that the Government hope for and will create very serious problems for some of the most vulnerable people in our society.” She added: “The loss of legal aid will mean that the not-for-profit sector will lose £51 million per year. Of that, the CAB’s element would be £20 million a year. I find it difficult to believe that whatever the Government can do to ease that burden it will be anything like adequate in order to make up the shortfall.” The debate was long, committed and, unusually for the Lords, occasionally tetchy. On division, 237 voted for and 198 against.

Amendment 12, covering social welfare, was moved by Lord Bach (Labour). It carried on from amendment 11 and concerned appeals. He argued that “of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in matters that are about law only, and have to argue their case. It would be impossible and would not help the court in any way.” The House agreed by 222 votes to 194.

The third defeat came on amendment 13, moved by Lord Lloyd of Berwick (Crossbench), which scrutinised civil legal services provided for clinical negligence reporting and proceedings. The amendment covered only the cost of expert reports, and Lord Lloyd claimed that it will actually save money. He posed the question: “What is the best way of funding expert reports in clinical negligence cases?” and concluded that at the very least they should be covered by legal aid. The House agreed by 178 votes to 172. Baroness Grey-Thompson (Crossbench) put her name to amendment 15, which asked for clarification over the meaning of ‘clinical negligence’ and ‘clinical negligence proceedings’. She expressed her pleasure that the Government have conceded that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid, but her amendment sought to retain all clinical negligence cases within the scope of legal aid. The amendment was defeated by 175 to168.

The rest of the day’s business saw 5 amendments not moved, 8 amendments withdrawn (including consumer law, education, vulnerable young people and people in a vegetative state) and 41 amendments agreed – mostly government proposed for tidying up and clarification. There was still time for something of a tour de force by Baroness Butler-Schloss (Crossbench). First she had three amendments extending and clarifying the definition of abuse agreed without division. She then withdrew two amendments, concerning child abduction within the UK and victims of human trafficking, but only after assurances from the government minister that her concerns on both subjects would be covered at Third Reading.

The government suffered three defeats on the first day of Report stage of its legal aid, sentencing and punishment of offenders bill in the Lords on Monday. Despite almost universal hostility during the ten days of Committee stage, ministers had hoped that it would not translate into parliamentary defeats. The bill now seems destined to endure the same difficult passage through the Lords suffered by the proposed changes to health and welfare.

The first defeat came on amendment 1, proposed by crossbencher Lord Pannick, looking at the wording behind the Lord Chancellor’s functions. He said: “This amendment is a very simple one. It does not undermine the heart of the Bill at all. It ensures that individuals, rich and poor alike, have access to legal services that effectively meet their real needs” and “seeks to ensure that the Bill contains a statement of this uncontroversial and fundamental purpose of legal aid.” He quoted Ken Clarke who, in a recent newspaper article, wrote: “Access to justice is a fundamental part of a properly functioning democracy.” He stressed that the amendment does not require any further expenditure by the Government. The vote followed, with 235 members for the amendment and 190 members against.

Amendment Two focused on the provision of legal services in cases of domestic violence. Proposed by shadow attorney general Baroness Scotland it requested that: ‘…the Lord Chancellor must ensure that victims of domestic violence are able to access civil legal services in accordance with the financial eligibility criteria in Section 20 (financial resources).’ She said: “The simple truth is that if the current proposal is brought into force, genuine victims are going to be excluded from obtaining the help and support they desperately need to bring themselves and their children into a place of safety.” The Lord Chancellor had received a sharply worded letter signed by ten leading clerics and heads of faith organisations, criticising the narrow definition of domestic violence. The House agreed, the vote resulting in a government defeat with 238 for and 201 against the amendment.

The triple whammy came with amendment three to clause four, looking at the role of a Director of Legal Aid Casework. Proposing the amendment, Labour’s Lord Hart said: “Everybody agrees that this individual will be independent but the Government appear unable or unwilling expressly to say so. Every noble Lord who spoke in the debate wanted there to be some unequivocal statement in the Bill that this individual will be independent.” Again the House agreed, voting 212 for and 195 against.
This first day of five at Report also included consideration of eleven other amendments. Two were agreed, two were not moved and seven were withdrawn. One of these amendments was proposed by Lord Bach, who was concerned that the Lord Chancellor would have the power to take extra matters out from legal aid by regulation but not have the power to put them back in, when it should be the other way around. He withdrew the amendment when Lord McNally for the government said: “I give a clear undertaking to the House to bring back our own amendment at Third Reading which I think will meet the concerns that have been expressed.”

Meanwhile there was a late concession by the Ministry of Justice last week, ensuring that children who suffer brain damage at birth retain entitlement to legal aid.

West Midlands and Surrey police forces have invited bids from G4S and other major security companies to take over the delivery of a wide range of services previously carried out by the police.

According to the ‘Guardian’, “the breathtaking list of policing activities up for grabs includes investigating crimes, detaining suspects, developing cases, responding to and investigating incidents, supporting victims and witnesses, managing high-risk individuals, patrolling neighbourhoods, managing intelligence, managing engagement with the public, as well as more traditional back-office functions, such as managing forensics, providing legal services, managing the vehicle fleet, finance and human resources.” The list does not include those activities that involve the power of arrest and the other duties of a sworn constable.

Senior police officers have strongly defended the involvement of private companies in policing, saying they should be involved in protecting the public and bringing offenders to justice. Greater Manchester chief constable Peter Fahy, Acpo’s spokesman on workforce development, said that there were elements in a criminal investigation that did not need to be done by a police officer. He added that the office of constable restricted the power of arrest to a warranted officer, but that did not mean that others could not help protect the public and bring offenders to justice. He said all forces were closely watching the £1.5bn West Midlands/Surrey tendering process, which has strong backing from the Home Office.

Writing in the ‘Guardian’ Sir Ian Blair, former Commissioner of the Met., said that the question that should be asked is which functions currently carried out by sworn, fully warranted, fully trained police officers do not need to be. “On this, swaths of police tasks, such as guarding prisoners in custody, searching woodlands, preparing routine witness statements and providing intelligence analysis to murder inquiries, swing into view” he said.

But alarm bells are ringing. Ben Priestley, Unison’s national office for police and justice, said: “Privatisation means that the police will be less accountable to the public. And people will no longer be able to go to the Independent Police Complaints Commission if they have a problem. When a critical incident happens, a force’s ability to respond will be severely compromised. The only winners are private companies and shareholders who make profits at the expense of local services.”
Former Deputy Prime Minister and prospective Humberside Police Crime Commissioner, Lord Prescott, said: “This is an extremely alarming, fundamental change to our police system. It needs to be nipped in the bud now. This is about replacing bobbies on the beat with security people.”

In Britain, we are policed by consent. We rely on the impartiality of senior officers when making decisions whether or not to pursue a prosecution, investigate a crime or make an arrest. Were these activities to be passed over to private companies, the overriding factor in any decision would be made on the basis of what is best for shareholders, rather than what is best for the public. To what extent will the vital regulatory requirements of PACE apply to private firms? When major slip-ups in outsourced investigations occur, as they surely will, where will accountability reside, and at what point might contracts be subject to suspension?

Given the track record of other privatisations this one is unlikely to save money, improve accountability or performance, or reduce crime. But it will for sure make a small number of individuals very wealthy. Is it right that people will get rich on the back of policing?

Sir Ian Blair concludes that the modernisation of policing within a public sector ethos “is not a shock, horror idea.” Oh yes it is.

A joint review by the inspectorates of police and crown prosecutors has found that intelligence failings lead to police missing evidence of serial rapists, who may be escaping justice as a result.

The review, published on Tuesday, says that rape problem profiles, tracking all attacks in a particular area, are only being kept up to date in three out of 43 police forces, making it difficult to draw connections between attacks. It highlighted two examples which it said showed police failing to use intelligence properly. In the first, potential links between a number of attacks, all in the same area on the same day of the week, were only discovered because of a chance conversation between two detectives. In the second, an offender moved towards rape through increasingly serious sex attacks, but the links were initially missed because different officers were investigating different incidents.

The review also warns that police investigators are not fully exploiting other sources of information such as DNA samples, national intelligence material on serious sex offences and the overseas records of foreign nationals. It accepts that the criminal justice system has made progress in the way it meets the needs of rape victims, but urgent improvements are needed in the way police gather and analyse intelligence material if rapists are to be identified and prosecuted.

The review states that the number of rapes recorded by the police has risen by 3,261 (26%) over the last three years. This it attributes to victims having more confidence that police and prosecutors will deal with offences sensitively and professionally, improved recording, and better links between the police and other agencies to whom rape victims turn, rather than an increase in actual offending. Nevertheless, one in eight reported rapes are written off as if no crime ever took place, with considerable variation between police forces. It makes a number of practical recommendations aimed at improving the way intelligence is gathered in rape investigations and cases are built against suspects, adding that implementing the changes should not require significant investment in time or money.

The review concludes: “No intelligence system is infallible; but there are systems and practices in place that could be improved to support frontline investigators and prosecutors so that they can forge links across offences to identify offenders and enhance public protection; and these are the focus of this report. Strengthening the intelligence systems at local and national levels will enable police forces to catch perpetrators quickly and provide strong cases for prosecution. These are our strong recommendations – greater clarity of definitions for rape cases, a new focused analysis on outcomes at a national level and improved compliance with the systems.”

The full text of ‘Forging the links: Rape investigation and prosecution – A joint review by HMIC and HMCPSI’ can be found at:

http://www.hmic.gov.uk/media/forging-the-links-rape-investigation-and-prosecution-20120228.pdf

The ninth and tenth days of line-by-line consideration of the Legal Aid, Sentencing and Punishment bill brought the Committee stage in the House of Lords to a conclusion last week.

In general the pattern was the same as the first eight days of the Committee stage. Subjects discussed included bail, remand, electronic monitoring, life sentences, early release, a new women’s justice strategy commission, youth cautions, offensive weapons and squatting. In all, over 200 amendments have been considered during the ten days. The only amendments agreed were those proposed by the government, a raft of technical and textual amendments. All the other amendments were either not moved or were withdrawn after debate.

So far the only concession made by the government is the withdrawal of clause 12 which would have required the means testing of defendents in the police station. The only other movements of note concerned a new provision to allow appeal against release on bail (Jane’s Law) and the consideration of disclosure of information to members of the public about convictions of violent abusers (Clare’s Law?), the subject of earlier blogs.

The bill will now move on to Report stage for further detailed examination. This process will commence on 5 March. This stage in the chamber gives all members of the Lords opportunity to consider all amendments, with detailed line by line examination of the separate parts and voting. Many amendments were withdrawn at Committee stage on the understanding that the government would look again at the particular aspect of the bill before Report. How the government responds will determine whether or not opponents divide the House.

The government has signalled that it may make some concessions – perhaps on child clinical negligence cases and the definition of domestic violence – if only to avoid the bruising they have received on the Welfare Reform and NHS bills. We shall see.

The ninth day of line-by-line consideration of the Legal Aid, Sentencing and Punishment bill at Committee stage in the House of Lords last week, which was midwife to the birth of Jane’s Law, might also lead to Clare’s Law.

Baroness Gale moved an amendment to the bill which would insert a new clause providing for ‘disclosure of information about convictions etc. of violent abusers to members of the public’. As with Jane’s Law, the amendment results from shocking events. Baroness Gale said that in 2007 Clare Wood began a relationship with George Appleton, a man she had met through Facebook. She ended the relationship after a year, but then became the target of a sustained campaign of violence and harassment. Over the next six months Appleton stalked Clare, sexually assaulted her and threatened to kill her. In February 2009 he strangled her, killing her before setting her body on fire. After a six-day manhunt he fled to an abandoned pub and hanged himself.

Baroness Gale went on to say: “Appleton had a long background of violence against women, including repeated allegations and convictions of harassment, threats to kill, and kidnapping one of his ex-girlfriends at knifepoint. Clare had no way of knowing this. Had she had that information, it could have saved her life.” She said that, at the inquest into Clare’s death, the coroner recommended that “consideration should be given to the disclosure of such convictions and their circumstances to potential victims in order that they can make informed choices about matters affecting their safety and that of their children”.”

Baroness Gale outlined some horrific statistics. In 2009-10 in England and Wales, 21 men and 94 women were killed by a partner or ex-partner. Over the past 10 years, an average of between 111 and 146 people a year have been murdered by their partner or ex-partner. ACPO estimates that there are 25,000 serial perpetrators of domestic violence in the country.

In response, minister of state Lord McNally expressed great sympathy with the proposal, and said that the government are committed to ending violence against women and girls. He went on to say: “However, disclosing information raises serious and complex questions about the appropriate circumstances in which information could be disclosed, particularly for the continued safety of a potential victim.” The Home Secretary has launched a consultation so that everyone with an interest or concern could express their views. He added: “The Government want to consider the wide range of views on this important and sensitive issue before taking matters further. However, I hope that she will accept my reassurance that we intend to take the matter further.”

Baroness Gale responded by withdrawing the amendment, saying: “I am sure that we will eventually get to Clare’s law.”

There was rare consensus between the government and the opposition at the start of the ninth day of line-by-line consideration of the Legal Aid, Sentencing and Punishment bill at Committee stage in the House of Lords last week.

The occasion was an amendment to the bill, proposed by Lord Beecham, to insert a clause allowing the ‘right to appeal bail decisions’. The government had also put down a similar amendment. Lord Beecham said: “This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter.”

He went on to say that there will never be any guarantee that a person granted bail will not commit an offence. “These amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it” he said.

Jane’s parents, Penny and John, were present in the Lords, and in his response, minister of state Lord McNally gently chided Lord Beecham for ‘outraging’ the protocol of the House by recognising people present beyond the Bar. But he added “It is good that Members of the House are aware that Jane’s parents are present to see us in action…It is such an important matter for them, their family and the wider public that we have this debate today. I sincerely hope that within a few minutes they will see Jane’s law passed by this House.”

Lord Beecham withdrew his amendment in favour of the government’s amendment, which differs because it does not permit an appeal against a decision by the Crown Court to grant bail where it was itself made on appeal from the grant of bail by a magistrates’ court. Lord McNally explained that if a defendant was granted bail by the magistrates, the prosecution appealed and the Crown Court granted bail, the prosecution would not be able to appeal further. “This is to stop a continuing series of appeals on a matter that by then would have been considered by two courts” he said.

Lord McNally concluded: “However, I can assure the House that what the Government are doing, supported by Her Majesty’s Opposition and, as the noble Lord, Lord Beecham, made clear, supported firmly by the other place, is approving Jane’s law.”

Home Secretary Theresa May has announced a new initiative aimed at ending gang and youth violence. She said: “Gangs and youth violence have been a serious problem in some of our cities for several years now. This fact is widely known, but we need to accept that over the years not enough was done to deal with the underlying drivers of the violence.”

In the immediate aftermath of the August riots the Prime Minister called for a report into Britain’s street gangs, even though only one in five of those arrested in connection with the riots were known gang members. Since then senior ministers, led by the Home Secretary together with the Secretary of State for Work and Pensions, have undertaken a review of the problem. ‘Ending Gang and Youth Violence: a Cross-Government Report’ is the outcome.

The report includes plans to prevent young people becoming involved in violence in the first place, to provide pathways out of violence and the gang culture for young people wanting to make a break with the past, and to reinforce punishment and enforcement. The report also sets out detailed plans for providing support to local areas to tackle their gang or youth violence problem. Over 20 areas in London, Liverpool, Manchester and the West Midlands are to receive funding of up to a total of £10m.

£400,000 per annum for three years will be provided to improve services to support children and young people under 18 suffering sexual violence and exploitation, including from gangs. Organisations are invited to bid for funding to recruit up to 13 new young people’s advocates who will provide direct and dedicated support to young people who are victims or at risk of sexual violence and exploitation, with a new focus on the girls and young women caught up in gang-related rape and abuse. They will work in areas most affected by gangs.

As reported in the ‘Guardian’, minister for equality Lynne Featherstone, speaking at Lilian Baylis technology school in Kennington last Thursday, said violence against girls in gangs had remained hidden for too long. “I think people would be shocked if they could see the level of violence and abuse against girls in gangs,” she said. She added: “Our first priority is to protect girls who can see themselves as worthless objects to be used in unacceptable ways.”

The full text of ‘Ending Gang and Youth Violence: a Cross-Government Report’ can be found at:

www.homeoffice.gov.uk/publications/crime/ending-gang-violence/gang-violence-detailreport