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Sentencing (Pre-consolidation Amendments) Act 2020 (Exception) Regulations 2020

Volume 805: debated on Wednesday 16 September 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Sentencing (Pre-consolidation Amendments) Act 2020 (Exception) Regulations 2020.

My Lords, this draft instrument will ensure that the victim surcharge payable by an offender sentenced under the forthcoming sentencing code will not be higher than the amount which would have applied at the time they committed the offence.

For those not familiar with the surcharge, it is imposed by the court on offenders following sentence to ensure that offenders hold some responsibility for the cost of supporting the victims and witnesses of crime. The amount imposed varies, depending on the age of the offender and the type of sentence they received. Income from the surcharge contributes to the victims and witnesses budget, which funds support to help victims and witnesses of crime.

The sentencing code is a consolidation of sentencing procedural law in England and Wales. It will bring much-needed clarity and accessibility to this area of law by providing sentencing courts with a point of reference for the procedural provisions which govern the sentencing process. The Law Commission’s Sentencing Bill, which creates the sentencing code, is currently before Parliament.

Let me turn to the purpose of this instrument. In April, the Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2020 came into force. That order increased the surcharge payable by an offender in particular circumstances. Importantly, these increases apply only where a court deals with someone who committed an offence after that order came into force. Since then, the Sentencing (Pre-consolidation Amendments) Act 2020 received Royal Assent on 8 June. That Act makes amendments to existing sentencing legislation to facilitate the consolidation of sentencing procedural law in the sentencing code. The pre-consolidation Act gives effect to a clean sweep of sentencing law. This removes the need for sentencing courts to identify and apply historic versions of sentencing law and, as a result, the current law as enacted in the sentencing code will apply to all sentencing decisions when an offender is convicted after its commencement, irrespective of the date that the offence was committed.

To protect the fundamental rights of offenders, the clean sweep is subject to certain exceptions. They are set out in Schedule 1 to the pre-consolidation Act. The Act also allows for further exceptions to the clean sweep to be made by statutory instrument. These regulations are made under that power. In accordance with the provisions of the pre-consolidation Act, the clean sweep will apply to the 2020 order unless steps are taken to exempt it. This would mean that the increased surcharge amount specified in the 2020 order would apply to certain offenders sentenced under the sentencing code who committed offences before that order came into force. That is clearly unfair and would run contrary to the aim of Article 3 of the 2020 order, which states that those increases apply only where a court deals with someone who has committed an offence after that order came into force.

This draft instrument therefore exempts Article 3 of the 2020 order from the clean sweep, meaning its effect will be preserved after the sentencing code is commenced. As a result, whenever a court deals with an offender under the sentencing code for an offence committed before the 2020 order came into force, the amount of surcharge payable by the offender will remain the amount that applied when the offence was committed.

It is in no way to disrespect the noble Baroness, who has made a good fist of explaining this very simple measure, to say that I am extremely sorry that the Advocate-General, the noble and learned Lord, Lord Keen, was not able to be with us, for reasons we understand. I put on record that it is critical that we applaud those who show such a principled and moral stand. I have no idea what the response will be from Downing Street, but our thoughts are with him.

I am participating in this very simple instrument because I took part in the debate on the consolidation Act and raised one or two questions about whether it would be possible to use the exemption facility we are debating this evening to deal with one outstanding anomaly. I do not expect the Minister to respond in detail, but I would be very grateful if she would take this back to the Ministry of Justice with a view to trying to examine it.

Taking the regulations before us, I am slightly mystified as to whether someone who commits or committed an offence that duly warranted a surcharge under the sentencing code before the measure came in, and committed a similar offence afterwards, would be charged two different rates. Perhaps that is an esoteric point, but it seems to me that there was some ambiguity in how it was outlined in the Explanatory Memorandum.

I particularly want to raise IPP prisoners with indeterminate sentences. I was responsible for both the surcharge and the subsequent mistaken implementation of the IPP. The surcharge has held; the IPP sentence was abolished eight years ago. However, people are being sentenced now for minor breaches of the terms laid down by the Parole Board under the previous legislation and are therefore subject to exactly the same terms of incarceration as they were prior to the abolition of the Act in 2012, even though the minor offence or breach might warrant a very small sentence—including, perhaps, regulations of this sort, with surcharge and reparations. Could the noble Baroness go back and see whether some of the outstanding issues here could be resolved in this way?

Finally, as everyone here and online knows, today the Government published a White Paper on sentencing. It included some of the things I talked about 17 years ago, such as the importance of a victims’ code, which also went through the Domestic Violence, Crime and Victims Act in the same year. It talks about trying to sort out issues relating to low-level offences, as we might call them, and the sentencing appropriate for them, and the strengthening of sentences for more heinous crimes. We went through all this, and I would like the noble Baroness to take back to the Lord Chancellor and Justice Secretary one simple thing: is any sentencing code to be left to those participating in the judiciary, with the Lord Chancellor chairing that, or is it to be laid down rigidly? This was quite a contentious issue 17 years ago, and I erred on the side of allowing the Sentencing Council to determine the guidance and therefore the terms on which the law would be implemented. Having been severely rapped over the knuckles since for not having been more prescriptive, I put on record that I hope the present Justice Secretary gets the balance right.

My Lords, I add my personal tribute to the noble and learned Lord, Lord Keen of Elie, the Advocate-General for Scotland. Over the past number of years, he has held some very difficult briefs and has done so with great professionalism and aplomb. I have admired him for it, although I must say that I have not envied his position. It so happened that a year ago, when I was ill at home, I had the opportunity of watching the whole of the Prorogation proceedings before the Supreme Court, when he was in charge of a very difficult and, ultimately, losing case and he did that very well. On a personal level, he has always been extremely polite and pleasant, and I am glad that he has taken the route of honour, which I hope will be followed by the Lord Chancellor, Robert Buckland, who I also know to be, both personally and professionally, a very decent man. I imagine that he will be tortured in the same way as the noble and learned Lord, Lord Keen, has no doubt been in the past few months.

I must confess that I am a little puzzled by the regulations, as is the noble Lord, Lord Blunkett. We all applauded the clean sweep provisions of the Sentencing (Pre-consolidation Amendments) Act 2020. The regulations appear to maintain the level of a surcharge ordered by the court at the level which was appropriate at the time of the offence. As I understand it, the surcharge was designed to transfer some of the costs of a court hearing, including support for victims, to an offender, and it varies according to the nature and seriousness of the offence and the overall sentence passed. It seems that under the regulations the clerk of the court will have to maintain a record indefinitely of the level of historic surcharges as they apply from time to time, and thus lose the benefit of the clean-sweep principle. Since the cost to the public purse of the court hearing and of support for victims is at the time the court hearing takes place, not at the time of the offence, I fail to see the logic of this.

My understanding of the situation has not been helped by the fact that my search for the Statutory Instrument 2020/310, the effect of which this order purports to retain, produced a nil return on the government website. I hope, therefore, I will be forgiven if my understanding is at fault, but it seems to me that the simple question is: why should an offender not contribute towards the current cost of a court hearing and of support for victims, rather than the cost at the time they committed an offence? In any event, what discretion does the court have in fixing the amount of the surcharge and does it vary in accordance with the offender’s ability to pay? I would be grateful for a response from the Minister on these points.

My Lords, I, too, pay a personal tribute to the noble and learned Lord, Lord Keen, who has always been extremely courteous and helpful to me.

These regulations relate to the Sentencing (Pre-consolidation Amendments) Act 2020, which is a precursor to the introduction of a sentencing code and consolidates all previous sentencing legislation into a single code for the ease and convenience of both the judiciary and the public. There are, however, some exemptions, to which the noble Lords, Lord Thomas and Lord Blunkett, have referred. This instrument creates a further exemption in relation to victim surcharge, which has recently been increased by 5%. Specifically, this instrument means that any offence committed before the change to the victim surcharge should be charged at the old rate. I have a few questions for the Minister.

First, why has this instrument been created after the passing of the sentencing Act? Could it instead have been included in the Bill and thus afforded further scrutiny? Secondly, the revenue from the victim surcharge forms part of the Ministry of Justice’s victim and witness programme, which is largely sent directly to the police and crime commissioners. Can the Minister confirm that the changes in this instrument have been communicated to the PCCs so that they can better budget how much they will receive from the programmes?

As some noble Lords may know, I also sit as a magistrate, so I regularly apply the victim surcharge to various cases I sentence. It is very unclear—certainly from the court’s point of view, or, I suspect, from the Government’s—where the money goes for the victim surcharge. We know that it goes to the PCCs but, as far as I know, there is no central government assessment of the effectiveness of the money spent to support victims and witnesses. I have pursued that in other forums through the Magistrates’ Association and more widely in London. It is very unclear how this money is spent, and it seems that there is no central assessment of the effectiveness of using it to support victims.

I therefore hope that the Minister will undertake in some way to look at the effectiveness of the victim surcharge and making the PCCs accountable for the money passed through to them.

My Lords, I am grateful for the limited but good contributions to this debate. Before I answer some of noble Lords’ questions, I reiterate that the purpose of this instrument is to ensure that offenders sentenced under the sentencing code for offences they committed before the Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2020 came into force will not be liable for the increased surcharge amounts specified in that order.

I will address a couple of the points. In response to the noble Lord, Lord Blunkett, I will look at Hansard, particularly the outstanding issues that he brought up from previous debates, and I will ask the department to look at how we might respond to him.

There is a difference between this and the sentencing White Paper, which I believe was published yesterday. This paper will look at sentencing policy. The Government are serious about fighting crime and protecting the public from its devastating consequences. Under this Government, the most serious offenders are more likely to go to prison and for longer, helping to protect the public and keep communities safe. That is what the White Paper will hold, and we expect that it will eventually come through as legislation. However, the legislation we are talking about that this instrument applies to is the Law Commission’s Sentencing Bill. That will consolidate all the sentencing procedural law in England and Wales into a sentencing code, which will provide courts with a point of reference for procedural provisions which govern the sentencing process. The Sentencing Bill does not introduce any new sentencing law, amend the maximum penalties available for criminal offences or increase the scope of minimum sentencing provisions. They are therefore very different pieces of legislation. It is important to understand that, and that this small instrument needs to be laid just before the sentencing code comes in so that we are fair to all offenders in future.

I am sorry that the noble Lord, Lord Thomas of Gresford, is puzzled but I am sure we can help. He says that there is a discrepancy over surcharge levels. A factsheet on surcharge levels is available and we can let him have it; it makes it very clear that, depending on the type of sentence, whether you are a young person, an adult or an organisation, there are different amounts and the courts will use those surcharge levels to determine how much has to be paid by the offender.

On the point of the noble Lord, Lord Ponsonby, I talked about the sentencing Act—not the Sentencing Bill. On the PCCs, the whole issue of what happens to the surcharges is important—I asked the same question. However, the Government feel that it is an important charge on offenders, both individuals and organisations, by the court. It is collected alongside all other criminal impositions by the National Compliance and Enforcement Service, which is part of HMCTS.

The purpose of the victim surcharge is to make sure that offenders hold some responsibility for the cost of helping the victims cope with and recover from the impact of their crimes. The level of surcharge imposed is dependent on the severity of the sentence the offender receives, whether they were under the age of 18 or an adult when the offence was committed and whether they are an individual or an organisation.

The victim surcharge contributes, as I have said, to the victim and witness budget, which is used to fund support services for victims and witnesses of crime. In 2019-20, about a third of the victim and witness budget, which was just over £92 million, came from the victim surcharge.

The noble Lord, Lord Ponsonby, asked about the ability to pay. We estimate that around 65% to 70% of all victim surcharges imposed are collected. However, collection rates vary considerably from year to year. In 2018-19, £46 million of the victim surcharge was imposed on offenders and £34 million was collected. Therefore it differs, but the Government feel that it is important for offenders to understand their responsibility to victims and witnesses. However, this is a small piece of regulation that will also be fair to the offender as we move forward into a different way of working.

With that, I commend this instrument to the Committee.

Motion agreed.

That completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room. The Committee stands adjourned. Good afternoon.

Committee adjourned at 5.24 pm.