Professor Penney Lewis gave evidence.

We will now hear oral evidence from Professor Penney Lewis, commissioner for criminal law at the Law Commission. We have until 4.30 pm for this panel. Could you please introduce yourself for the record?

Professor Lewis:

I am Professor Penney Lewis; I am the commissioner for criminal law at the Law Commission of England and Wales.

Q You are very welcome this afternoon, Penney. What does the Law Commission see as the major benefits of this Bill in better serving justice?

Professor Lewis:

We are extremely pleased that there are measures from four of our projects in the Bill. Those are the provisions that I can speak about today. Those four projects are intimate image abuse; modernising communications offences; corporate criminal liability; and confiscation of the proceeds of crime. If I say a little about each of those—[Interruption.]

I beg your pardon—my phone was making a noise.

Can we all check that our phones are on silent, please, and that they haven’t got a mind of their own?

Professor Lewis:

I will start with confiscation, because that is the largest area of the Bill; the provisions are in schedule 4. The review aimed to simplify, clarify and modernise the post-conviction confiscation regime—in other words, the confiscation of the proceeds of crime after someone has been convicted.

We know that the current regime works in some cases, where it can result in funds being allocated to victims through compensation that can be paid out of confiscation, but there is still a fairly strong consensus among stakeholders that the current regime is inefficient, overly complex and in some cases ineffective, with weak enforcement methods. Our recommendations were aimed at improving the current system to give courts more powers to enforce confiscation orders and seize offenders’ assets, but also to limit unrealistic orders that can never be paid back and to speed up confiscation proceedings, thus allowing victims to receive compensation more quickly.

I will touch on the other three projects, which have a smaller number of measures in the Bill. As I think most of you will know, some of the recommendations that the Law Commission made on intimate image abuse were implemented in the Online Safety Act 2023: the offences of sharing an intimate image without consent and with no reasonable belief in consent; and threatening to share an intimate image. The other recommendations that we made were taking an intimate image without consent; and installing equipment in order to take an intimate image without consent. Those offences could not be included in the Online Safety Act because they are not communications offences, so this is really the second half of the implementation of our recommendations.

We aimed to provide a clear, coherent and cohesive set of offences that would cover all types of sharing and taking without consent, that would have one consistent definition of an intimate image and that would reflect different motivations that defendants might have for sharing and taping intimate images without consent, including cases where the defendant apparently has no motive. We recognise more serious culpability with motives of intending to cause humiliation, alarm or distress, or for the purpose of obtaining sexual gratification, but we also recommended criminalising cases where those motives cannot be proven. We are very pleased that those offences have now been included in the Criminal Justice Bill.

Briefly, corporate criminal liability is another example of the completion of implementation—something that we discussed in our options paper. It was not a full report, so it did not have recommendations, but it had a number of options. One was reform of the identification doctrine. You may know that the Economic, Crime and Corporate Transparency Act 2023 included reform of the identification doctrine, which allows for the attribution of personal criminal liability to the corporation in certain circumstances where the person is a senior manager, so it expands that form of attribution. That could only be done in relation to economic crime in the Economic Crime and Corporate Transparency Act, so the reform in this Bill basically expands that to include all types of crime for which a corporate liability may be appropriate.

Finally—yes, I am getting to the end of my answer—one offence in the Bill, which is encouraging or assisting a serious self-harm, is again the expansion of something that was the implementation of a recommendation for the Online Safety Act from our modernising communications offences project. That offence was included in the Act insofar as it was a communications offence, but it is also possible to encourage self-harm by handing somebody a knife, so this expanded offence in the Criminal Justice Bill includes that kind of more physical assistance. It is not restricted to assistance by way of communication.

Q That is a pretty full answer, thank you. May I ask you about clauses 23 and 24 and the aggravating factors in relation to grooming and the end of relationship? Do they go far enough?

Professor Lewis:

Those clauses are not the implementation of any Law Commission recommendations, I am afraid. The Law Commission does not take a position on those parts of the law that we have not had the opportunity to investigate or to speak to stakeholders about. I am afraid I cannot help on that.

Q I assume that the same applies to clause 30 on coercive behaviour offenders, where the language in the Bill refers to an “intimate or family relationship”. I was going to ask for your view on whether that expression is too wide—the intimate relationship. Is that something you would comment on or not?

Professor Lewis:

It is not something we have looked at in relation to that clause. I would take a very small opportunity here to mention that we are about to start a project on defences for victims who kill their abusers, so we will be looking at the kind of relationship that should qualify in relation to defences. We are aware that if, for example, one restricts it to intimate-partner violence, then one risks excluding “honour-based” killing, which can also happen in a family context. We are planning to look at that, but we have not looked at it yet.

Q Have you done any work on homelessness and people on the streets—aggressive beggars and things of that nature? I wanted to ask you your opinion on whether the measures proposed by the Government—I think there are 30 clauses in this particular area—are proportionate, workable and fair. Is that something you would comment on?

Professor Lewis:

I am really sorry to disappoint, but it is not something we have looked at. We did look at homelessness as a possible protected characteristic for the purposes of hate crime law when we did the project on hate crime law a few years ago, which you may remember. That was a really interesting and revealing experience, because when we first started talking to stakeholders, some of them, including Shelter, were quite opposed to the idea of including homelessness as a protected characteristic—they thought that it entrenched homelessness when we should be trying to remove it and prevent it.

When Shelter spoke to homeless people on our behalf, which was really helpful, and when we spoke to homeless people, they actually described a lot of very horrific criminal behaviour perpetrated against them, and they experienced that as a hate crime. They experienced it as involving hostility towards them because they were homeless. We have some experience of looking at that. Ultimately, we did not recommend the expansion of hate crime law; as you may remember, there was a lot of opposition to its expansion. But we certainly saw the benefit of making sure we spoke to homeless stakeholders in order to really understand their lived experience.

Q You will not comment on the begging issues?

Professor Lewis:

I am afraid that is not something that we have looked at.

Q Penney, welcome to the Committee. Thank you for joining us this afternoon. Sorry if you got stuck in security downstairs. Can I start by asking about the proceeds of crime measures referred to in clause 32 and expanded on in the extremely long schedule 4, which takes up about 38 pages? Can I just check that those follow your recommendations and that you are happy with them? Can you give the Committee some sense of the impact you think the Bill will have if passed?

Professor Lewis:

Many paragraphs of the schedule do implement our recommendations. We are extremely pleased to see our recommendations implemented extremely swiftly. This project only reported over a year ago. We obviously do think that the changes we recommended would make a difference in the ways I mentioned earlier, which included improving enforcement and the ability to seize offenders’ assets, limiting unrealistic and in some cases unfair orders, and allowing victims to receive compensation more promptly.

We estimated at the time that the reforms could lead to an extra £8 million in funds being retrieved from criminals in England and Wales every year. That obviously helps to return more money that can be used on public services, for instance. I am happy to talk in more detail about specific recommendations if that would be helpful.

Q Were there any in particular you would like to draw the Committee’s attention to?

Professor Lewis:

One of the things we thought was most important, in addition to trying to make the system more efficient, was to balance it with also making it more fair. In terms of efficiency, we recommended things like expediting the setting of a confiscation timetable, which is in paragraph 12, and creating a settlement process, which already happens informally—we call it EROC, which stands for early resolution of confiscation. That has been implemented in paragraph 13. We note also that better enforcement will improve the recovery of funds.

There have been several recommendations that have been implemented in order to improve enforcement. Enforcement plans, which largely implement our recommendations for contingent orders, are in paragraph 16; and allowing enforcement to take place in the Crown court as well as the magistrates court is in paragraph 17. We think that those will make the system much more efficient and will radically improve enforcement.

In terms of fairness, it is really important that orders accurately deflect a defendant’s benefit from crime. There are two ways in which we have recommended, and the Government have introduced clauses to implement, improving the fairness of confiscation orders. One concerns where someone has made only a temporary gain—for example, a money launderer who allows their bank account to be used to transfer £1,000,000 but gets paid £10,000 for doing that. When the gain is only temporary their benefit from crime is not really £1,000,000, given that they do not get to keep that. At the moment, orders can be made in the amount of the temporary gain and that recommendation has been taken up. I will find the paragraph for you in a moment.

Q While you are looking, Graeme Biggar raised a question in his evidence earlier today. I may have misunderstood his point, so perhaps you can clarify. He raised the concern that there was an absence of deadlines and an absence of penalty if a payment deadline is missed. He cited a case where an order was made in 2018 that got paid only earlier this year—five years later. Is that your understanding? Is there anything in here that addresses that, because he seemed to suggest there is not?

Professor Lewis:

I am happy to address that. The temporary gain issue is in paragraph 8. The other improvement to the calculation of benefit is in circumstances where the defendant has already disgorged some of the proceeds of their crime—so, for example, that may have been forfeited or seized by the state already. That should not be double counted, so that the defendant then has to pay back something that has already been seized by the state. That is in paragraph 5. We are very pleased to see those fairness recommendations, as well as the efficiency gains.

In terms of deadlines, ultimately there is a deadline: it is called the default term of imprisonment. When a confiscation order is made against a defendant, a term of imprisonment in default is set. The defendant may end up serving this period of imprisonment if it is activated by the court, on the basis that the defendant has demonstrated either wilful refusal to pay the confiscation order or culpable neglect in failing to pay it. The defendant can of course secure release from the default term by paying the confiscation debt. In the consultation paper we cite a case where, as the person is being taken off to prison, finally the confiscation debt is settled. So, we do know that that does work—at least, anecdotally.

In the consultation paper we provisionally proposed something that would be even more stringent than that. At the moment the defendant is released halfway through the default term. After that, there is no more threat of imprisonment. We provisionally proposed that the defendant should be released only on licence, similar to the way in which life prisoners are released, for example. I think that was probably our most controversial proposal. There were some people who were in favour of that, but lots of people thought it extremely draconian; another sector thought that it really would not work, and within that was His Majesty’s Prison and Probation Service. In other words, probation is not really designed to get people to pay their confiscation orders; it has another purpose. It has a rehabilitative purpose.

Ultimately, we decided that there are better ways to try to ensure enforcement. So, yes, there is the default term that remains, and that is a real threat to defendants. However, we also recommended confiscation assistance orders, requiring the defendant to attend enforcement hearings after the default term has been served and requiring the provision of financial information with penalties for non-compliance or providing false information. The first two of those—assistance orders and requiring the defendant to attend enforcement hearings after serving the default term—are both in schedule 4.

Q That is very helpful, thank you. I have one further question on a different topic. We have discussed at different times today whether there is any merit in creating a separate offence of assaulting a retail worker. Obviously, in the past we have voted for a separate offence of assaulting an emergency worker, and in the Police, Crime, Sentencing and Courts Act 2022 we made the victim being a public-facing person a statutory aggravating factor. Some people will say that we should go further and have a separate offence for assaulting a retail worker. The contrary argument is clearly that it is already a criminal offence, and where do we draw the line? What about assaulting a teacher or local councillor? You could carry on almost without limitation. What is the Law Commission view on that?

Professor Lewis:

Again, we do not have a view; it is not something that we have looked at. Obviously, in our hate crime project we looked at circumstances where sentences were aggravated because of hostility towards a protected characteristic, and we recommended equalising the protection that the various protected characteristics carry so that every protected characteristic would have aggravated offences, as well as enhanced sentencing for those offences that do not have aggravated versions. However, we have not looked specifically at the individually aggravated offences such as the ones for assaulting a police officer and so on, I am afraid.

Q So you do not have a corporate view, or a personal view, on whether creating extra, specific and bespoke assault offences is merited.

Professor Lewis:

We do not have a corporate view, because we have not done work on it. You are right to worry that one is drawing very fine lines, and once one has added one offence, there is another group of people who are not included in the bespoke offences. One ends up with a proliferation of bespoke offences for different categories of function.

Q Taking all that together, what would be your personal view on the question—speaking for yourself, not the Law Commission?

Professor Lewis:

I do not think that I would go further than that. I think that concern should be considered, but I do not think that I am in a position to have a personal view, having not looked at it in any depth.

Thank you.

I call Jess Phillips. Just be aware of the clock —you have eight minutes.

Q You are very, very defined in the things that you will say, and I appreciate that. What has the Law Commission suggested of late, in one of the things it has written about, that is not in the Bill? You have been grateful for the things that are in the Bill, but what is missing?

Professor Lewis:

Missing from the projects that are implemented or missing from other projects?

Q For example, just to go to your point about hate crime and the aggravated factor, has that been realised in the law?

Professor Lewis:

No. We are still awaiting a Government response on the vast majority of our recommendations in the hate crime report.

For example, women—

Professor Lewis:

No, that is the one they responded to, because we recommended that sex or gender not be added for the purposes of aggravated offences or enhanced sentencing. You may remember that there was a statutory requirement for the Government to respond to that, and they responded accepting our recommendation not to add it. They have not responded to the rest of the recommendations, including our recommendation that there should be an offence of stirring up hatred on the basis of sex or gender as well as equalising the treatment of all the other protected characteristics in relation to stirring up hatred.

Q For example, that could have been in the Bill, but it is not.

Professor Lewis:

I cannot comment on whether it could have been in the Bill.

You can put anything in it if you want— I am going to.

Professor Lewis:

It is not in the Bill, and we await a response from the Government on the vast majority of our recommendations.

Q So you are awaiting a response. Therefore, although you are pleased to see quite a lot of things in the Bill, there are quite a lot of examples of things that the Law Commission has done pieces of work on that do not feature in a Bill—this Bill, the Sentencing Bill or the Victims and Prisoners Bill, which have all been going through at the same time.

Professor Lewis:

I have to accept—in fact, I am pleased to accept—that in terms of projects that I have worked on, more than half of them have been implemented in the last year. The implementation rate of Law Commission criminal law projects at the moment is—

Q High?

Professor Lewis:

Yes. It is fantastic.

That is good to hear.

Professor Lewis:

We are really pleased to be able to work with the Government to implement our recommendations in so many projects; I think it is five in the last year.

Q Okay. Going back specifically to the issue of confiscation, how do you foresee this working with the resources on the ground? I speak as somebody who, in the break between the morning sitting and the afternoon sitting of this Committee, received an email telling me that somebody was going to pay me some compensation for perpetrating crimes against me. Like every other time that I have received such a letter, I have absolutely no expectation of seeing a single penny, nor have I ever seen a single penny of that money.

Professor Lewis:

Compensation for victims is a really important issue and one of the things that we recommended in the confiscation project, because compensation was not part of that project directly, is that there needs to be a separate review of compensation for victims.

None the less, we made recommendations where there is overlap. For example, we described it as giving priority to the payment of compensation. We recommended that where a compensation order is imposed at the same time as a confiscation order, the Crown court should be required to direct that compensation should be paid from the sums recovered under the confiscation order. At the moment, that happens only if the defendant does not have enough money to pay both orders, but we recommended that, even if the defendant does have enough money, the first lot of money should go on compensation.

Similarly, when multiple confiscation orders are imposed, priority should be given to the payment of compensation and after that to the confiscation orders. Paragraph 11 of schedule 4 basically implements those recommendations, saying that the court “must direct” that

“sums recovered under the confiscation order” be applied to “ priority order (or orders)”. Priority orders are defined in the Proceeds of Crime Act 2002 as including compensation orders. Therefore, although you may not see the word “compensation” in that paragraph, it very much is in there, and the paragraph prioritises the application of funds to victims, whether that means that you as an individual victim are seeking compensation funds—

Q I find it highly unlikely. So, you think there needs to be a further review of compensation for victims.

Professor Lewis:

Yes.

Thank you very much. That brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank the witness for the time that she has given us today.

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

Adjourned till Thursday 14 December at half-past Eleven o’clock.

CJB 01 Dr Chris Millard

CJB 02 Manifesto Club

CJB 03 Society for the Protection of Unborn Children

CJB 04 ICANN Business Constituency

CJB 05 Crisis

CJB 06 Margaret Hunter

CJB 07 Dr Tim Coyle

CJB 08 Will DeFraine

CJB 09 Monica Bell

CJB 10 Ann McCloskey

CJB 11 Stop Domestic Abuse

CJB 12 Make Space, Self Injury Support, National Survivor User Network, and Battle Scars. Joint submission.

CJB 13 Dr Josephine Friederich-Thomas