Police, Crime, Sentencing and Courts Bill (Eleventh sitting)
The Committee consisted of the following Members:
Chairs: † Sir Charles Walker, Steve McCabe
† Anderson, Lee (Ashfield) (Con)
† Atkins, Victoria (Parliamentary Under-Secretary of State for the Home Department)
Baillie, Siobhan (Stroud) (Con)
Champion, Sarah (Rotherham) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Clarkson, Chris (Heywood and Middleton) (Con)
† Cunningham, Alex (Stockton North) (Lab)
† Dorans, Allan (Ayr, Carrick and Cumnock) (SNP)
Eagle, Maria (Garston and Halewood) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
† Higginbotham, Antony (Burnley) (Con)
Jones, Sarah (Croydon Central) (Lab)
† Levy, Ian (Blyth Valley) (Con)
† Philp, Chris (Parliamentary Under-Secretary of State for the Home Department)
† Pursglove, Tom (Corby) (Con)
† Wheeler, Mrs Heather (South Derbyshire) (Con)
Williams, Hywel (Arfon) (PC)
Huw Yardley, Sarah Thatcher, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 10 June 2021
[Sir Charles Walker in the Chair]
Police, Crime, Sentencing and Courts Bill
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of the Committee, except the water provided. I remind Members to observe physical distancing. Members should sit only in the places that are clearly marked, and it is important that they find their seats and leave the room promptly to avoid delays for other Members and staff. Members should wear face coverings in Committee unless they are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to firstname.lastname@example.org.
We now resume line-by-line consideration of the Bill. The selection list for today’s sitting is available in the Room. I remind Members wishing to press a grouped amendment or new clause to a Division that they should indicate their intention when speaking to their amendment.
Diversionary and community cautions
With this it will be convenient to discuss the following amendments:
12, in clause 76, page 71, line 2, leave out “diversionary” and insert “conditional”.
13, in clause 76, page 71, line 7, leave out “Diversionary” and insert “Conditional”.
14, in clause 76, page 71, line 10, leave out “diversionary” and insert “conditional”.
15, in clause 76, page 71, line 16, leave out “diversionary” and insert “conditional”.
18, in clause 77, page 71, line 24, leave out “diversionary” and insert “conditional”.
19, in clause 77, page 71, line 31, leave out “diversionary” and insert “conditional”.
20, in clause 77, page 72, line 3, leave out “diversionary” and insert “conditional”.
21, in clause 77, page 72, line 6, leave out “diversionary” and insert “conditional”.
22, in clause 77, page 72, line 8, leave out “diversionary” and insert “conditional”.
23, in clause 78, page 72, line 11, leave out “diversionary” and insert “conditional”.
24, in clause 78, page 72, line 15, leave out “diversionary” and insert “conditional”.
25, in clause 78, page 72, line 20, leave out “diversionary” and insert “conditional”.
26, in clause 78, page 72, line 34, leave out “diversionary” and insert “conditional”.
27, in clause 79, page 72, line 38, leave out “diversionary” and insert “conditional”.
28, in clause 79, page 72, line 42, leave out “diversionary” and insert “conditional”.
29, in clause 80, page 73, line 36, leave out “diversionary” and insert “conditional”.
30, in clause 81, page 74, line 7, leave out “diversionary” and insert “conditional”.
31, in clause 81, page 74, line 14, leave out “diversionary” and insert “conditional”.
32, in clause 82, page 74, line 25, leave out “diversionary” and insert “conditional”.
34, in clause 83, page 74, line 29, leave out “diversionary” and insert “conditional”.
35, in clause 83, page 74, line 34, leave out “diversionary” and insert “conditional”.
36, in clause 84, page 74, line 39, leave out “diversionary” and insert “conditional”.
37, in clause 84, page 75, line 36, leave out “diversionary” and insert “conditional”.
38, in clause 84, page 75, line 42, leave out “diversionary” and insert “conditional”.
39, in clause 85, page 76, line 23, leave out “diversionary” and insert “conditional”.
40, in clause 85, page 76, line 26, leave out “diversionary” and insert “conditional”.
41, in clause 85, page 76, line 31, leave out “diversionary” and insert “conditional”.
42, in clause 85, page 76, line 34, leave out “diversionary” and insert “conditional”.
43, in clause 85, page 76, line 39, leave out “diversionary” and insert “conditional”.
44, in clause 85, page 77, line 15, leave out “diversionary” and insert “conditional”.
45, in clause 85, page 77, line 18, leave out “diversionary” and insert “conditional”.
47, in clause 86, page 77, line 36, leave out “of the”.
This amendment is consequential on Amendment 13.
48, in clause 86, page 77, line 41, leave out first “the” and insert “any”.
This amendment is consequential on Amendment 13.
It is a pleasure to serve under your chairmanship this morning, Sir Charles. First, I especially thank Unlock, Transform Justice, and the Centre for Justice Innovation for their considerate and constructive scrutiny of the proposals.
The Opposition are generally supportive of the changes to the statutory framework for out-of-court disposals, and we recognise the work that the Government have done to move in that direction. Three forces took part in a year-long pilot of the two-tier framework in 2014, and the Ministry of Justice commissioned an independent evaluation of that pilot, which was published in 2018. Fourteen police forces—a third of all forces in England and Wales—have already adopted the two-tier framework, and the National Police Chiefs’ Council has endorsed the two-tier framework through its strategy for charging and out-of-court disposals.
We do appreciate the need to simplify the six-option cautions menu, and we recognise the Government’s attempt to streamline the use of out-of-court disposals for police forces. We would like those reforms to go further, however, and I will go on to discuss those areas in speaking to our amendments. We would like much more to be done to incentivise the use of out-of-court disposals in appropriate cases. It is important to note that although the Government hope that the new system will reduce reoffending, current data does not suggest that short-term reoffending rates are likely to go down. The evaluation of the 2014 pilot found no statistically significant difference between the short-term reoffending rates of prisoners who were given out-of-court disposals in two-tier framework areas and those in comparable areas that were not using the new framework.
I understand that the Government also hope that the new system will improve victim satisfaction because more victims will be involved in the process, but it is important to recognise that victim satisfaction with the current out-of-court-disposal framework is already good. In 2019-20, 84% of victims whose offender was issued a caution said that they were satisfied with the police action. That is a similar rate to victims whose offenders were charged, 83% of whom said that they were satisfied with the police.
Although we support the principle of simplification for the purposes of enabling the police to work more effectively, we have to be realistic about the likely impact of that change to the system.
I most certainly agree: the more that victims are involved, the easier the process is for them. Talking about victims goes well beyond what we are debating today. The Opposition have published a victims’ Bill and hope that one day soon, the Government will finally come up with their victims’ Bill to address some of the issues that need to be addressed if life is to be just a little easier for the people who fall victim to criminals in our society.
Although we support the simplification of the cautions system, we have concerns about the removal of the simple caution, which seems to be an extremely effective and non-resource-intensive disposal for police officers to choose to use. Indeed, the simple caution has the lowest rate of reoffending of any sentence or sanction.
The Bar Council has said that it, too, is concerned about the removal of the simple warning:
“The existence of a simple warning, which the Bill proposes to abolish, is useful in many ways, not least because it requires fewer resources from police forces.”
The Bar Council went on:
“To insist that cautions are imposed in all cases does not give sufficient flexibility to the judiciary. A national framework that is too rigid is likely to be unworkable in a courtroom.”
As the Chair of the Bar Council—Derek Sweeting, QC —said in one of the evidence sessions on the Bill:
“It would be useful to have something that was a more general tool that the police could use, that would not turn up in criminal records later on and so on, and that would give the police the option effectively just to give what is now the simple caution.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Public Bill Committee, 18 May 2021; c. 87, Q141.]
There is a range of low-level offences for which the simple caution is supremely suitable and in response to which it would not necessarily be appropriate to initiate a more formal engagement with the justice system, so how does the Minister envisage this very low-level offending now being dealt with?
Another area on which we would appreciate further reassurance from the Minister is the funding system. The system being proposed is likely to be significantly more costly than the existing system. The evaluation of the 2014 pilot found that the criminal justice system in pilot areas was estimated to have spent around 70% more on administering out-of-court disposals than the system in non-pilot areas. It concluded that the increased spending was the result of using conditional cautions in place of simple cautions, because conditional cautions require more police time to administer and monitor.
The Government estimate that this change will cost around £109 million over 10 years and think the criminal justice system will incur extra operational costs of around £15.58 million every year. They further estimate that the new cautions system will cost the police around £30.7 million to implement over the first two years.
The actual costs are likely to be even higher than those estimates, because the estimates are based on data from a pilot of the current two-tier framework carried out in 2014, which did not include some of the costly features of the proposed system set out in the Bill, such as proposed restrictions on the use of out-of-court disposals for certain offences. That is a significant cost and, as I noted earlier, it does not necessarily come with the offsetting benefit of reduced reoffending rates.
The impact assessment refers to £1.5 million for a three-year programme aimed at supporting police forces to access local intervention services, identify gaps in available provision and help to prioritise what services are needed that are not currently available.
I certainly do agree with my hon. Friend, particularly when it comes to youth services. We have seen youth services being devastated over the last 10 or 11 years, and all manner of other services in the community have also gone, all of which could have contributed to reducing crime, better engaging young people and diverting them from crime. Nevertheless, this three-year programme is welcome all the same, and I am glad that the Government are providing some resource to identify and fill support gaps, which can help to keep people out of the criminal justice system all together.
However, as my hon. Friend has suggested, £1.5 million seems a small amount of money indeed when stretched across our 43 police forces, which all serve different and diverse community needs. I would be grateful if the Minister told us more about how his Department sees that £1.5 million being spent and what criteria he will set for its allocation.
I am interested to know whether there are any plans to boost funding for these types of programme, especially as they might save the Government significant amounts of money by diverting appropriate low-level cases from prosecution altogether.
I would appreciate further information from the Minister on training officers in this particular area. Adrian Crossley, head of the criminal justice policy unit at the Centre for Social Justice, raised that issue at an evidence session:
“Drawing from the 2014 audit, there are some learnings from the two-tier system, most notably the training of officers so that they can refer people to the intervention that is appropriate and useful, better inter-agency communication, and sufficient time for implementation.”––[Official Report, Police, Crime, Sentencing and Courts Bill Public Bill Committee, 18 May 2021; c. 45, Q63.]
Will the Minister tell us what resources will be made available to train officers in such a way? Or will that also come out of the £1.5 million?
We know that keeping people out of the formal justice system can have a really positive impact, so the Opposition would like to see growing use of out-of-court disposals, but the matter needs to be dealt with across Government—everything from youth services to the development of support services in the community.
Given the energy and time that the Minister’s Department has put into the proposals, I know it recognises the need for greater numbers of out-of-court disposals. However, I have reservations about the fact that the available evidence suggests that the proposals might result in a further decline in the use of out-of-court disposals. In 2019, approximately 192,000 out-of-court disposals were issued in England and Wales. That is the lowest number in a year since 1984 and around 28,000 fewer than in 2018.
The Ministry of Justice evaluation of the 2014 pilot found no change in the volume of out-of-court disposals issued by police forces using the system. It seems that officers in the pilots switched to the disposing of offences with conditional cautions when they would have used a simple caution, so we can assume that police officers will not make significant changes to their use of those disposals as a result of the proposed changes.
Features introduced in the proposals were not in the two-tier framework pilot, which I worry will contribute to an even greater decline in the use of out-of-court disposals. For example, under the new system there will be more restrictions on the use of out-of-court disposals for certain offences, as police officers will need the consent of the Director of Public Prosecutions to issue out-of-court disposals for indictable-only offences. They will also be prohibited from disposing of some cases involving repeat offenders by out-of-court disposal.
While data is not available on how many cautions are issued for indictable-only offences or repeat offenders, we cannot estimate exactly how the changes might affect out-of-court disposal volumes, but we do have data to show that 55% of cautions issued in 2019 were for indictable and either-way offences, which suggests that restricting their use for those offences is likely to have some impact on out-of-court disposal volumes.
I am sure the Minister recognises the value of out-of-court disposals and would not want to see a further serious decline in their use, so it would be good to hear of any plans he has to safeguard against any such decline. Perhaps he has other data that we are not aware of that demonstrates the fact that he would expect the decline to be not only halted, but even reversed. I look forward to hearing his thoughts on that.
I will come to other concerns when I speak to the Opposition amendments with respect to other clauses, but there is one other issue that I want to deal with here and now: the admission of guilt. First, this requirement will place a further administrative burden on police officers by preventing them from administering community cautions on-street, which could restrict their use in otherwise suitable cases. It is important that in simplifying the system for the police’s use, we also ensure that the flexibility needed to deal with the range of offending across England and Wales is retained and that we do not cause difficulties for the police by putting in place restrictions that would be unhelpful.
More importantly, many organisations, including EQUAL, have raised concerns about the impact that requiring an admission of guilt will have on disproportionality in our already extremely disproportionate justice system. In the current framework, a person has to make a formal admission of guilt to receive an out-of-court disposal. If someone does not admit guilt, they will be charged and sent to court. Evidence cited in the Lammy review shows that black, Asian and minority ethnic people are more likely to plead not guilty owing to a lack of trust in the criminal justice system among BAME communities, which makes suspects less likely to co-operate with the police.
That is most certainly the case. We have seen a breakdown in those relationships in recent years, but funding for work in that area has also suffered considerably. The real point of this—I do not think we can say it often enough—is that BAME individuals are less likely to admit guilt and receive an out-of-court disposal. They are more likely to face prosecution; if they face prosecution, they are more likely to end up in prison; and if they end up in prison, they could be there for much longer under some of the legislation that the Government are promoting.
During the evidence sessions, that issue was raised by a series of witnesses as an area of concern. Phil Bowen of the Centre for Justice Innovation said that
“we would strongly argue that it should be possible to offer the community caution—the lower tier of the two tiers—to individuals who accept responsibility for their behaviour, rather than requiring a formal admission of guilt. This is an idea that was raised in the Lammy review and has subsequently been raised in the Sewell report. We think it would be better if that lower tier could be offered to people, who are required only to accept responsibility for their actions. As the Lammy review suggests, that may encourage the participation of people from groups who tend to have less trust in the police and the criminal justice system.”––[Official Report, Police Crime Sentencing and Courts Public Bill Committee, 18 May 2021; c. 44-45, Q63.]
The hon. Gentleman makes an interesting point. Yes, if the police believe that they need to proceed to court because someone refuses to take responsibility, the case should be moved on. However, the fact remains that if the person admits responsibility rather than making a formal guilty plea at that stage, they could have an out-of-court disposal rather than having to be dragged through the criminal justice system again. The Victims Commissioner told us that this was one reservation she had about the proposed changes to the caution system, saying that
“something needing a bit of looking at is the obligation to admit guilt in order to get an out-of-court disposal. Sometimes something like a deferred prosecution might be something that a person would be readier to accept, and it should be no more of a problem for a victim.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 114, Q180.]
Perhaps the Government might consider out-of-court disposals that do not require a formal admission of guilt, only individuals to accept responsibility. That might encourage the participation of people from groups that tend to have less trust in the criminal justice system, and who might therefore be more reluctant to make a more formal admission of guilt.
On the issue of deferred prosecutions, there is an excellent organisation in Lambeth called Juvenis that gets referrals from people in agreement with the police, via a panel. Those people are referred to Juvenis for help, and if they keep safe, prosecution does not follow. Is that not a good way to divert people from being criminalised and processed in the criminal justice system?
It most certainly is. The Government should be looking at examples of that best practice and rolling it out across the country, because in the longer term, support for organisations such as that will reduce the number of people who end up in the formal criminal justice system. That will mean fewer people in prison, and the cost to society will be all the lower as a result. The Opposition share the serious concerns that have been raised, and would like to hear the Minister’s thoughts on the issue, because I know that tackling inequalities in our justice system and crime outcomes is something he takes very seriously. We would particularly like to hear his thoughts on the possibility of removing the requirement of an admission of guilt from the lower-tier disposal, at the very least.
Let me turn my attention to the amendments standing in my name. These amendments might seem rather cosmetic, but they address an important issue as to how we think about the handling of lower-level offending. Amendments 11 to 15, 18 to 32, and 34 to 45 would change the name of the diversionary caution to the conditional caution, while amendments 47 and 48 are minor consequential amendments that would result from that change. The Opposition are concerned that calling the upper-tier disposal the diversionary caution is potentially and unnecessarily confusing. Diversion is commonly used as a term to describe specific activity moving people away from any contact with the formal justice system altogether, regardless of whether that means diverting them from a prosecution or from a statutory out-of-court disposal. It matters what we call these things, because the diversionary caution is not diversion as the term is currently used across the criminal justice system. A third of police forces are already using the two-tier framework, which includes the conditional caution.
We are concerned that the name change will needlessly confuse police forces, even though the intention is to simplify the framework. It could also cause needless confusion for others who work in, engage with or come into contact with the justice system, but who are not consistently involved with it as police officers are. It is a small change, and I hope the Government can see the sense in it. I would be grateful for the Minister’s thoughts on it. If the Government are set on opposing the measure, I would welcome a further explanation as to why “diversionary” was chosen as the name for the upper-tier statutory out-of-court disposal.
Do any other Members wish to speak before the Minister rises to his feet? I do not see you all jumping up and down, so I call the Minister.
It is a pleasure, as always, to serve under your chairmanship, Sir Charles, and it is a pleasure, as always, to respond to the shadow Minister. Let me start by saying how glad I am to hear that he and the Opposition generally welcome the principles that lie behind the changes in these clauses. We intend to reduce the number of cautions from the current six to the two contemplated in the Bill, following, as he rightly said, the initial pilot with three police forces, which has now expanded to 14 or 15 police forces. The feedback that we received from those police forces is that they find the simpler structure of cautions much easier to follow and much more helpful. Broadly speaking, it sounds as though we are all on the same page—both sides of the House, and the police as well. I am glad that we are starting from a very similar place.
The shadow Minister asked a number of questions about the involvement of victims in the administration of cautions. Of course, victims should be at the heart of the criminal justice system—we all believe very strongly in that. On victims, I draw the Committee’s attention to paragraph 6.7 of the victims’ code, which says:
“Where the police or the Crown Prosecution Service are considering an out of court disposal you”—
“have the Right to be asked for your views and to have these views taken into account when a decision is made.”
The police and CPS must make reasonable efforts to obtain the views of victims, and they must communicate with victims on the topic. As the shadow Minister rightly said, it is clear that victims need to be part of this endeavour, and paragraph 6.7 of the victims’ code ensures that.
The shadow Minister asked a second series of questions about the fact that both levels of caution—the diversionary caution and the community caution—have a requirement for conditions to be attached. He expressed some concern that that might impose additional bureaucracy on police forces. He also asked about the cost of the whole scheme more generally and mentioned the estimate that the whole of the criminal justice system cost might be in the order of £15 million a year.
On the conditions, it is important that the cautions have some effect. It is important that where someone has committed an offence and admitted guilt—I will come to the point about admission of guilt in a moment—there should be some sort of follow-up action to ensure remedial activity and that an appropriate step is taken. If we simply let someone go with no follow-up step, it undermines and diminishes the seriousness of the fact that they have committed an offence and admitted to it. It perhaps misses an opportunity to take a step that will reduce reoffending in future. In general, taking steps to stop people reoffending is a good thing. There are some opportunities that we are very keen to embrace via these conditions and sentences passed by the court. For example, if someone has a drug addiction, an alcohol addiction or a mental health problem, we want that to get treated. These cautions are an opportunity to impose a condition—seeking treatment, for example. Of course, in a court setting, there are community sentence treatment requirements, alternative dispute resolutions, mental health treatment requirements and so on. These cautions have an important role to play in ensuring that the underlying causes of offending get addressed.
I will just finish the point, and then I will take the intervention in a moment.
There are opportunities to take a more calibrated approach if police officers or the Crown Prosecution Service think it is appropriate. First, in the code of practice that we will be tabling to accompany these new diversionary and community cautions, there will be significant latitude and quite a lot of flexibility for police officers and the CPS to set appropriate conditions. They could be quite low level. For a low-level offender, where it is not appropriate to impose an onerous condition, or where the police feel it would impose an unreasonable burden on police officers themselves, a much lower, light-touch condition could be applied. That would address the concern that the shadow Minister raised.
There is also the option of a community resolution, which the NPCC says it will retain. There will be the two cautions set out in statute, and there will be the community resolution option too. Although the community resolution comes with conditions, there is not an obligation for them to be followed up, so the administrative burden would not apply.
On the cost point, of course we should be aware that the police are generally receiving a great deal of extra funding as part of the recent police settlements in order to support the police uplift programme—the extra 23,000 police officers. It would be a good use of a bit of that time if it were spent on following up the conditions that have been imposed to try to prevent reoffending. We all agree that reoffending is too high; that is bad for the individual and society as a whole. That is a good use of a bit of the additional police resources.
I am grateful to the Minister. On the issue of addressing the root of the offending in the first place, I am chair of the all-party parliamentary group on attention deficit hyperactive disorder, and people with ADHD are disproportionally represented in the prison population. That is partly because of screening—they are not screened early enough and are sometimes not aware that they have ADHD. Has the Minister given any thought to whether some of the conditions could involve screening for people with ADHD if that is one of the roots of the offending?
That is an extremely good point. That is the sort of issue that we should take up in the code of practice that accompanies the statutory framework. That is exactly the kind of thing that should be picked up. Where someone has a need for treatment of some kind, whether for drugs, mental health—ADHD in that example—or alcohol addiction, we need to try to get the underlying cause of the offending sorted out. That is something that we can and should pick up in the accompanying code of practice, and I am very grateful to the hon. Gentleman for raising it.
The Minister is talking a lot of good sense, and I take issue with very little of what he has to say. I am keen to understand whether he is content that we are seeing lower numbers of out-of-court disposals. He talks about reoffending, which we all want to see reduced, but there is no evidence that this measure will contribute to that. Would he suggest otherwise?
Clearly recent data, over the past 15 months or so, has been significantly distorted because of the effect of the pandemic on the criminal justice system, policing and everything else, so we need to be careful about post-dating data from February or March 2020.
The reoffending point links to the comments of the hon. Member for Enfield, Southgate. We need to ensure that, in the code of practice, we are guiding police forces and the CPS to the follow-up activities and conditions that are most likely to deliver a reduction in reoffending. The shadow Minister is right that, although the police preferred the new system that we are introducing, there was not evidence of a reduction of reoffending in the pilots areas. We have an opportunity via the code of practice to ensure that the conditions are proposed and designed, like the one that the hon. Member for Enfield, Southgate just proposed, with the purpose of reducing reoffending. This is an opportunity that we should seize, along the lines just suggested.
Another question that the shadow Minister asked had to do with the admission of guilt. He made the point well: should we drop the admission of guilt and instead have the person take responsibility? Because these two cautions have a significant effect in law, I think we need a formal admission of guilt, because the consequences of breaching one of them are potentially serious. Let us take, for example, the diversionary caution. First, it is disclosable for a period—only for three months. I know there is a later amendment on this, but for three months, it is disclosable when a criminal record check is done. And a breach of the condition can lead to prosecution. Even at the lower level of community caution, a breach can lead to a fine, which obviously is then enforceable in the normal way. I think that if someone is going to sign up to a caution, which carries with it those potentially serious implications should the condition be breached, it is right that there is a formal admission of guilt.
There is still the option of the community resolution, which I mentioned a few minutes ago. In the community resolution, a formal admission of guilt is not required; there is just the “take responsibility” requirement that the shadow Minister mentioned. It is open to the police or CPS, if they consider it appropriate, to go down the community resolution route, which has only a “take responsibility” requirement. That is appropriate because, as I said, there is no legal consequence if someone breaches the condition attached to a community resolution. By accepting that, the alleged perpetrator is not putting themselves into the criminal justice system, whereas if they accept one of the two statutory cautions, they are potentially putting themselves into the criminal justice system, and therefore I think that a formal admission of guilt is required.
There is none the less an important point, which the hon. Member for Enfield, Southgate made in, I think, an intervention on the shadow Minister. He mentioned the issues with BME suspects being reluctant to engage with cautions because they do not trust the system and therefore opting for formal prosecution. I think there is an issue there to do with—I was going to say “education”, but that is patronising. Let me say instead “confidence building”—a better phrase. Clearly, if the alleged perpetrator goes down a prosecution route, it could end up worse for them, because if they get convicted, they could end up with a significantly higher sentence, so we need to work with these communities to explain how the system works and how it might actually serve their interests better to accept the caution, rather than going into a more formal court process, which will take longer and may end up in a significantly higher penalty for them. Of course, the CPS or police may choose to charge them, because they think that the offence may merit it, but we need to ensure that the suspect or the alleged perpetrator properly understands what they are getting themselves into. That is something that I will take up with my hon. Friend the Minister for Crime and Policing.
Does the Minister agree that the regulatory framework of diversionary and community cautions will prevent many young people from entering the formal criminal justice system—including having their fingerprints and photographs taken—which could affect their life chances and employment chances in later years for a mistake that they made at a very young age; that these measures will be welcomed by the parents who see their children perhaps having a second opportunity to live a crime-free life; and that this will allow rehabilitation within the family and the community?
Therefore the hon. Gentleman’s comments are based on that long experience of public service in the police force. It is clearly better if we can get people to stop their offending by way of early intervention such as this, rather than having them end up in a young offenders institution or somewhere similar, which often leads to a pretty bad outcome. We should take this opportunity to stop that pattern of behaviour developing and worsening. That is why these conditions are important —to ensure that that prevention and rehabilitation take place. I fear that otherwise we are missing an opportunity —an opportunity that the shadow Minister is poised to grasp.
I am really interested in what the Minister said about working with ethnic minority and BME communities. We have seen a tremendous cut in services over the last 10 or 11 years, so does he see the potential of legislation such as this to increase even further the need for the Government to think again and invest more in organisations that can help people to understand what the Government are about and how young men in particular—it is young black men who tend to be affected most—can avoid the criminal justice system and move on with their lives?
Exactly—avoid the criminal justice system by desisting from criminal behaviour.
Obviously, a lot of initiatives are under way, particularly via the funding for serious violence reduction units, which has increased a great deal in the last couple of years. The work of serious violence reduction units with those communities, talking about issues exactly like this, is the right way to do that. I will make sure that my colleague the Minister for Policing is appraised of our discussions this morning—this afternoon, now—so that he can ensure that that is reflected as he works with SVRUs and the police on issues such as this.
I am very grateful to the Minister for giving way, and I am sure that he will excuse me for being parochial about this. In Cleveland, we have the third-highest rate of serious violent crime in the country, but the Cleveland Police force has been passed over in the past when it has come to funding for the initiatives he is talking about. Will he remind the Policing Minister of the particular issues that we face in Cleveland, and perhaps secure us some more funding?
Well, I am afraid that in the case of Croydon, there is quite a lot of crime. I will add Cleveland to my communication.
I turn to the large group of amendments starting with amendment 11, which the shadow Minister moved. He proposes replacing the word “diversionary” with the word “conditional”. I understand entirely what he is trying to do with that amendment, but unfortunately there are technical and legal reasons why that does not work. Essentially, the reason—as he touched on when moving the amendment—is that the concept of a conditional caution already exists in the current form of statutory out-of-court disposals for adults, which were enshrined in part 3 of the Criminal Justice Act 2003.
We cannot change the name because there would be transitional provisions when the old cautions may still apply, and that may lead to confusion about which type of caution is being referred to, whether that be the old conditional caution, which may still apply in some cases—depending on the time of the offence—or the new conditional caution, which would be called a “conditional caution” if we adopted the amendment. It would lead to confusion about which caution was in force. As the new diversionary caution is different from the old conditional caution, we think that, both for legal reasons and for reasons of general confusion and clarity, the use of a different word—“diversionary”, in this case—is the right thing to do.
Amendments 46 and 48 are in the shadow Minister’s name but I do not think that he moved them. Should I defer replying to them?
I appreciate the Minister’s response. As far as the amendment is concerned, I accept that we are perhaps all looking at different levels of confusion within the system. It is just a shame that we have to have any confusion at all. I do not intend to press the amendment to a vote, but I repeat to the Minster what I said before: we need to address disproportionality across the whole justice system. There is no doubt that these particular measures will add to that, and it is important that the Government take measures to ensure that young people—and even older people—coming into the system have a full understanding of what they are getting into as a result of the Government’s proposed changes to the law. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment 46, in clause 76, page 71, line 7, leave out from “Diversionary” to end of line 8 and insert—
“cautions must have one or more conditions attached to them.
(4A) Community cautions may have one or more conditions attached to them.”
This amendment would remove the requirement for community cautions to have conditions attached to them, and instead make such conditions discretionary.
The amendment would remove the necessity to attach conditions to the community caution, which is the lower-tier disposal. The Opposition are concerned that the provision in clause 76 means that both the diversionary and community cautions must have conditions attached to them. We believe it should be possible to offer the community caution to individuals without the imposition of conditions. There are a range of circumstances in which an offence has occurred but in which the police may judge that no conditions should be imposed.
I will reiterate what I said earlier: in simplifying the process to help police forces, we need to ensure that we do not unhelpfully restrict them by removing useful tools. The current framework contains the simple caution, in which no conditions are attached. As I mentioned earlier, the current simple caution is a very effective sanction, with the lowest reoffending rate of any sentence or sanction.
In the Government’s evaluation of the two-tier system, the conditional caution was shown to be effective in reducing reoffending, but it was no more effective than the simple caution. We are concerned that if all cautions have to have conditions imposed on them it may unhelpfully limit the police’s ability to effectively dispose of offending. The effect, at least in the adult regime, is that only conditional cautions are available. Conditional cautions are more expensive to administer and monitor than disposals with no conditions attached. There is a relatively in-depth process of paperwork to set and monitor conditions and to ensure compliance.
This is an issue that police forces are concerned about too. In an evidence session, Phil Bowen of the Centre for Justice Innovation said that
“in consultation events that we have already held with a number of police forces, they strongly suggested that they wanted to retain the flexibility to issue the community caution—the lower tier—without conditions. In the existing framework, they are able to issue a simple caution that does not involve conditions. Police forces want that flexibility, and the new framework proposed by the Government does not allow that in the lower tier.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 44, Q63.]
Does the Minister think it is necessary to always have the additional stringent burden of necessary conditions on the lower-tier disposal, in spite of the fact that the police would welcome flexibility in this area?
Another issue of serious concern for the Opposition was raised in the evidence sessions by Sam Doohan from Unlock. On the additional administrative and time burden placed on the lower-tier disposal, he said:
“As a result, forces will be much more hesitant to use a caution. Whereas in the past, they might have been quite content to give a simple caution and send someone on their way with a formal warning or reprimand, now the force in question will have to take on the burden of monitoring, compliance and potentially re-arresting someone if they breach conditions. They will be forced either to go above the caution and see more cases through to prosecution, even though it would not necessarily be in the public interest to do so, or not to take action at all.
As we know with the criminal justice system as a whole, when we start having these slightly weighted decisions about who falls into what tier of disposal, those who are from disadvantaged backgrounds, along the lines of race and religion, almost universally fall into the harsher end, and those who are not do not. We are creating a system that incentivises busy working police officers to say, ‘Actually, I am going to make this the CPS’s problem, not mine, and I have the choice of who to do it to.’ Is that going to lead to good criminal justice outcomes? We think it may not. We do not know yet—I stress that—because it has not been studied, but it does have the characteristics of a system that will not have the desired outcomes.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 104, Q164.]
I have already raised some of the serious issues of disproportionality that may come from the proposed system, but I would welcome reassurances from the Minister that his Department plans to monitor, and safeguard against, any such unintended perverse outcomes. Far more of our concerns will be allayed if the Government agree to retain a level of flexibility in the lower-tier disposal. We are not asking for there to be no conditions attached to the community caution; the amendment would still allow for police to attach conditions in appropriate cases, but it would provide an important safeguard against further disproportionality in the criminal justice system and allow police forces to retain the flexibility they need to properly serve their community needs, which we believe they are best placed to know about.
Right, who would like to speak? Are there any colleagues catching my eye or touching their face masks to indicate that they wish to speak? No. It is the Minister, smiling, who wants to speak.
Smiling as always, Sir Charles. I thank the shadow Minister for his speech. I made a number of the points that I would make in response in my comments a few minutes ago, so I do not want to re-elaborate on them at too much length, lest I wear thin the patience of colleagues. I will just reiterate briefly the two or three key points in response to the shadow Minister.
First, the Government think that having some level of conditions is an inherently good thing because it means there is a mechanism by which follow-up can take place, and it provides an opportunity for rehabilitation. Secondly, in the code of practice, which we have discussed already, there will be considerable latitude over how the conditions are calibrated. It could therefore be possible to have quite light-touch conditions. What we will take away is that, in the code of practice that gets drafted, and subsequently tabled and approved by Parliament, there is a wide range of conditions, including some at the lower end that are not unduly onerous on the police to monitor and follow up. Thirdly, the community resolution is still an option available to the police, and although it has conditions, it does not require follow-up.
A combination of those three considerations makes the approach being taken the right one. The key point is that the code of practice is very important. We will no doubt debate it when it gets tabled and voted on in a Delegated Legislation Committee. I hear the shadow Minister’s point, and the code of practice will reflect that.
On the final point, about disproportionality, which the shadow Minister and the hon. Member for Enfield, Southgate raised, we will certainly be mindful of disproportionality considerations. As the hon. Member for—help me out—
Ayr, Carrick and Cumnock.
There we go. Mr Dorans, are you happy with that description of your constituency?
As the hon. Gentleman said in his intervention, this is an opportunity to divert people from a path towards more serious crime and into a regular life. That is important for everyone, including some of these communities, which get themselves into more trouble than we would like. That point is well made.
I beg to move amendment 8, in clause 76, page 71, line 21, at end insert—
“(8) The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, and every 12 months thereafter, lay before Parliament a report on the use of cautions in accordance with this Part.”
I will not keep the Committee long on this simple amendment, which would compel the Secretary of State to report annually to Parliament on the use of cautions, as established under this clause. As I said earlier, in 2019 only about 192,000 out-of-court disposals were issued in England and Wales, which is the lowest number in a year since 1984. I bear in mind what the Minister said but, of course, those figures refer to 2019, not the time covered by the pandemic.
The use of out-of-court disposals has been in decline since 2008, after it peaked at 670,000 disposals in 2007. Their use has fallen nearly three quarters since then. In 2008, community resolutions were introduced, and they remain the only type of out-of-court disposal that has been used at a similar rate in each of the past five years. That has happened while recorded crime has increased by more than 1 million offences, from about 4.3 million in 2010 to about 6 million last year. I mentioned earlier that we have concerns that the new restrictions on using out-of-court disposals for certain offences are likely to have some impact on out-of-court disposal volumes, driving down their use further. I again ask the Minister to clarify whether he thinks there will be more or fewer out-of-court disposals in the future.
It is all the more important that we monitor the new system to ensure that the use of out-of-court disposals does not continue to decline significantly. Although I appreciate that there has been a pilot and evaluation done of a two-tier framework, this is the one that is already in use. There has not been such an assessment of this new proposed two-tier framework. I have already mentioned the reservations that we have about attaching conditions to all cautions and the potential impact that that will have on disproportionality. Again, these changes need to be monitored to ensure that they do not have unwanted, perverse consequences. We are all keen to see the use of effective out-of-court disposals increase, not decrease. They can allow police to deal quickly and proportionately with low-level, often first-time offending and help to keep people out of the formal criminal justice system, which in many cases is preferable for their communities and for the Government in the long run.
An annual report to Parliament would allow for the necessary scrutiny of the new system and help to stem the decline in the use of out-of-court disposals. I hope that the Minister agrees that that would be a useful exercise. It will be good to hear more generally from him about Government plans to monitor and scrutinise the new system.
On the review of how out-of-court disposals are used and are going, they are, as the shadow Minister said, already recorded by all forces in England and Wales and reported to the Home Office and the MOJ for statistical purposes. The figures appear in criminal justice statistics, published quarterly, which include performance data tables for each individual police force, as well as trends in use—figures from which the shadow Minister was likely quoting a few minutes ago.
There is therefore already complete transparency on the numbers, which enable Parliament, the Opposition and the Departments—the Ministry of Justice and the Home Office—to look at them, take action, call parliamentary debates and so on. Those figures are all in the public domain.
In addition to that, however, all police forces are already required to have an out-of-court disposal scrutiny panel, led by an independent chairperson. Those panels are extremely important in holding the police to account and ensuring that disposals are being used appropriately, to provide assurances that difficult decisions are being made properly and to provide effective feedback to police officers and their forces.
Already, therefore, we have two levels of scrutiny: the data being reported, aggregated by police force and reported nationally to the Home Office and the MOJ, so we can debate it in Parliament; and, for each individual force area, a scrutiny panel. In addition, a standard review of legislation takes place after a Bill receives Royal Assent. I suggest to the Committee that those three mechanisms between them are sufficient.
The shadow Minister, however, is right to point to the figures. We in Parliament should be vigilant about them. If we, the Opposition or any Member of Parliament are concerned about how those quarterly figures look, there are a lot of ways to express those concerns in Parliament—by way of a Westminster Hall debate, an Opposition day debate or any of the usual mechanisms. I suggest that the existing mechanisms are adequate. I invite everyone in Government and in Parliament to use them.
On this occasion, we are in a different place. I appreciate what the Minister said about the various methods through which information is available and about the opportunities to debate the issues, but I cannot understand why the Government are reluctant to have a formal report on the new system. We have discussed at some length the considerable reduction in the number of cautions used over the past 10 or 15 years. That decline is continuing. There is no evidence that the new system will result in any increase in the use of the cautions. For that matter, it is important for us to hold the Government particularly to account, so I will press for a vote on the amendment.
Question put, That the amendment be made.
Clause 76 ordered to stand part of the Bill.
Giving a diversionary caution
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clauses 78 to 85 stand part.
Clauses 77 to 85 essentially provide for the statutory basis on which the diversionary caution—the higher of the two new cautions—will be introduced. We have already discussed at some length the principles that underpin the diversionary caution, and clauses 77 to 85 simply provide for the details necessary to facilitate their introduction. Given that we have already had a fairly extensive discussion on the principles, I will go through the clauses relatively quickly.
Clause 77 specifies the criteria for giving a diversionary caution, as introduced in clause 76, which we have just agreed. An authorised person may give a diversionary caution to a person over 18 years of age, subject to the specified conditions being met. The clause specifies key safeguards whereby an authorised person or prosecuting agency can authorise the use of this caution. They must establish that there is sufficient evidence to charge, that the recipient admits the offence and that the recipient signs and accepts the caution, along with understanding the effect of non-compliance. Those requirements mirror the provisions in the Criminal Justice Act 2003 that apply to existing conditional cautions. The requirements are important safeguards, given the consequences that can flow from the breach of a condition attached to a diversionary caution, as we have discussed.
Clause 78 establishes the types of conditions that may be attached to a diversionary caution. We will expand on that in the code of practice that we discussed. The provision is similar to the existing conditional caution. Again, as we have already discussed, it requires reasonable efforts to be made to ensure that the victim’s views are sought before the conditions are set out. We have talked about the importance of taking victims’ views into account.
Clause 79 provides for the rehabilitation and reparation conditions that may be attached to a diversionary caution. Further to the point made by the hon. Member for Ayr, Carrick and Cumnock, we talked about the importance of rehabilitation as well as reparation. The clause specifies the sort of activities that may be undertaken.
Clause 80 introduces a financial penalty condition. Clause 81 deals particularly with conditions that might attach when the offender is a foreign national. Clause 82 introduces a method whereby an authorised person or prosecution authority may, with the offender’s consent—should that be necessary subsequently—vary the conditions attached to a diversionary caution.
Clause 83 deals with the effect of failure to comply with a condition attached to a diversionary caution. As I said earlier, criminal proceedings can be instituted against the offender for the index offence in the event of any breach. That is why a formal admission of guilt is so important.
Clause 84 grants a constable power to arrest the offender without a warrant where the constable has reasonable grounds for believing that the offender has failed, without reasonable excuse, to comply with any condition attached to a diversionary caution. Clause 85 clarifies how the Police and Criminal Evidence Act 1984 will be applied in the event that an offender is arrested under clause 84 if a breach has occurred.
The clauses essentially implement the principles that we discussed when we considered clause 76 a few moments ago.
The new diversionary caution that these clauses introduce is extremely similar to the existing conditional caution. The same authorised persons would be able to issue them, issuing officers would have to meet the same requirements before applying them, and the range of conditions that could be attached would be extremely similar. They will still be used only in cases where officers have sufficient evidence and offenders admit guilt—we still have a problem with that—and the consequence of breaching conditions would be the same, in that the offender would be arrested and prosecuted for the initial offence.
However, there are two differences that would be helpful for the Committee to consider. The first is the range of offences for which the diversionary caution can be given. I raised this as a point of concern earlier when discussing whether we might see a further decline in the use of out-of-court disposals in appropriate cases as a result of clause 77, which sets out the restrictions on giving diversionary cautions for indictable-only offences. I will not repeat our concerns, but now that we are looking at the specific clauses, I would be grateful for some further information from the Minister.
Clause 77(3)(a) allows a diversionary caution to be given to an offender for an indictable-only offence
“in exceptional circumstances relating to the person or the offence”.
It would be helpful if the Minister could provide some illustrative examples of what such an exceptional case might be. The restriction for indictable-only offences existed only for the simple caution before, but it did not apply to conditional cautions. Has the Minister made any assessment of what impact the change might have with regards to up-tariffing for disposals given at this level of offending?
The second key difference is a change in the maximum amount that an offender can be fined through a financial penalty condition. For the current conditional caution, fine levels are set by the Secretary of State but cannot be above £250, and this limit is set in primary legislation. However, the Bill will not provide a limit for diversionary caution fines, and the value of any such fine will be set using rules from future secondary legislation made under the powers in the Bill. Although I appreciate that the secondary legislation would require parliamentary approval by a yes/no vote, and so Parliament could reject the fine limit, it would not be able to amend the proposals for the fine value.
The summary that my hon. Friend offers is certainly to the point. Young people could find themselves unable to meet a fine and end up in court or with further fines as a result—poverty heaped upon poverty in that situation.
It would be helpful at this stage to hear any more information that the Minister has about what level the Government may intend to set the fines at. Perhaps he could just tell us what the motivation is behind changing the limit.
I am sure it is the Minister’s intention to be helpful. Does he want to respond to the shadow Minister in winding up this part of the debate?
I have already made the points that I wanted to make, but I will respond to one or two of the shadow Minister’s questions.
Indictable-only offences are by definition extremely serious. They are the most serious offences, so there would be an expectation of proper prosecution in such cases.
The shadow Minister asked what the exceptional circumstances might comprise. I cannot give him speculative examples, but the meaning of the term “exceptional circumstances” is well understood in law, and it is a very high bar. It is not a test that would be met readily or easily.
On the fact that the limit on the fine may be specified by a statutory instrument, there is a desire to retain a certain measure of flexibility. I understand the shadow Minister’s concern that the fine may end up escalating to an unreasonably high level, but as he acknowledged in his questions, it is subject to a vote in Parliament. If Parliament feels that the level of fine is inappropriately high, it is open to Parliament to simply vote it down. Then the Government would have to think again and come back to the House with a fine at a more reasonable level. On that basis, I recommend that the clauses stand part of the Bill.
Question put and agreed to.
Clause 77 accordingly ordered to stand part of the Bill.
Clauses 78 to 85 ordered to stand part of the Bill.
Giving a community caution
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clauses 87 to 93 stand part.
Rather like the previous group of clauses, which implemented the diversionary cautions, clauses 86 to 93 lay out the details of the proposed scheme for community cautions, implementing the principles that we have already debated pursuant to clause 76. As I did a few minutes ago, I will go through each clause quickly.
Clause 86 specifies the criteria for giving a community caution. It must be given by an authorised person to someone over the age of 18. The clause specifies the key safeguards whereby an authorised person or prosecuting authority can authorise the use of the caution: establishing sufficient evidence to charge, and an admission of guilt from the offender, who signs and accepts the caution and understands the effect of non-compliance. That mirrors precisely the provisions of clause 77, which we discussed a few minutes ago.
Clause 87 establishes the type of conditions that can be attached, specifying that they should be rehabilitative or reparative—that is very important for the reasons that we have already discussed. It requires that reasonable efforts are made to ascertain victims’ views.
Clause 88 introduces the permissible rehabilitation and reparation conditions, which must have the objective of facilitating rehabilitation in those cases. The clause provides that such conditions may be restricted in some cases and contain unpaid work conditions or attendance conditions.
Clause 89—again, mirroring the previous group—introduces the financial penalty condition. Clause 90 provides the framework for registering and enforcing financial penalties as part of this regime.
Clause 91 provides a framework for court proceedings arising from the enforcement of the financial penalty, essentially to ensure that it gets paid if someone does not pay it. Clause 92 introduces a method for an authorised person or prosecuting authority to vary the conditions, which, again, mirrors the previous group of clauses.
Clause 93 deals with the effect of community cautions where criminal proceedings may not be instituted against the offender for the offence. In particular, if the offender fails to comply with the condition under community caution without a reasonable excuse, the condition may be rescinded and a financial penalty order may be imposed instead, so the consequence of breach here is financial penalty rather than prosecution.
I hope that gives the Committee adequate oversight of the effect of clauses 86 to 93.
Although we were on relatively familiar ground with the new diversionary cautions, the community cautions, on which clauses 86 to 93 set out the detail, are very different from the lower-tier out-of-court disposals currently in use. In fact, they are much more similar to the existing conditional cautions that the diversionary cautions are already designed to replace. There are lots of cautions here—cautions and cautions and cautions.
I spoke earlier about our concerns about the necessity of attaching conditions to the community cautions, so I will not tread the same ground again, but that is an important point. We very much support the simplification of the out-of-court disposal system and the introduction of the two-tier framework, but why are the Government introducing two tiers that are so similar? We should be able to get rid of the confusion of the current system of six out-of-court disposals without so severely restricting the choices of police officers who deal with such a wide range of low-level offending for which a range of penalties may be appropriate.
I understand that the community caution is intended to replace the community resolution. There are two major differences between the two. A community caution will be formally administered by the police, like other cautions, so it will appear on an offender’s criminal record in the same way that other cautions do. There will be a clear statutory rule about the conditions that can be attached to it. That is quite a jump from the community resolution. Community resolutions are voluntary agreements between the police and an accused person. They do not appear on an offender’s criminal record, and the actions agreed to are not legally enforceable.
My colleague is right to raise the issue of disproportionality in the system. Anything that increases that is not good for us as a country and is certainly not good for the young people involved. It is important that the Government bear that in mind as they bring the measure forward. More importantly, as I said, the Government can get into a situation where they recognise that communities—ethnic minority communities, call them what we will—need to have an understanding of the changes that the Government are proposing, so that we do not find more young people, young black men in particular, with criminal records when that is not necessary.
Secondly, the community cautions will now involve financial penalties. Officers will be able to attach a fine to a community caution as a punitive condition. Failure to meet any of the conditions, including a financial penalty condition, could result in a police-issued fine. Again, that would be quite a departure from the community resolution. Offenders might be asked to pay damages to their victims as part of a resolution, but community resolutions are not used to fine individuals.
Will the Minister tell me, therefore, whether the intention is to replace the community resolution entirely with community cautions? I ask, because Transform Justice has rightly called for some clarity in this area:
“The status of community resolutions under the proposed legislation is not clear. Clause 96 ‘Abolition of other cautions and out-of-court disposals’ states that ‘No caution other than a diversionary or community caution may be given to a person aged 18 or over who admits to having committed an offence’. We are unsure what this means for community resolutions, although we understand the intention is that they will remain available to police if they wish to use them.
Given the value of community resolutions, as an out of court disposal that does not require a formal admission of guilt, the legislation and accompanying regulation should make clear in Clause 96 that use of community resolutions will not be prohibited under the new framework.”
I have already discussed our concerns about the need for a formal admission of guilt for the community caution and the potential that has to deepen disproportionality in our criminal justice system. My hon. Friend the Member for Enfield, Southgate just raised that issue. We all know that there are benefits to having a light-touch disposal to deal with low-level offending in some cases where appropriate. Keeping people out of the formal justice system at this level can help keep them out of it for good and so I wonder whether the Minister thinks that we might be losing a helpful method of disposal here. Finally, how does he anticipate that the low-level offences that benefited from community resolutions before will now be handled?
I thank the shadow Minister for his speech and his questions. For clarity, in answer to his principal question, the community resolution will still be available to use. It will not be removed by the Bill. As he said, community resolutions have conditions attached to them, but they do not require the admission of guilt— they simply require someone to take responsibility—and, should the conditions not be adhered to, there is in essence no consequence to follow that.
That low-level entry provision will therefore still exist and be available to police officers to use. Because that will still exist, it is appropriate to pitch the community cautions—the ones we are debating—somewhere in between the community resolution, which will remain, and the diversionary caution that we just debated. That is why it is pitched where it is.
There are three principal differences between the diversionary caution and the community caution. The first is on disclosure. We will talk about this when we consider an amendment later, but the community caution is not disclosable in a criminal record check and so on from the moment that the condition ceases, whereas for the diversionary caution a spending period goes beyond that.
The second difference is that, as the shadow Minister said, the consequence of breaching the community caution is the imposition of a fine, whereas for the diversionary caution it can lead to substantive prosecution. Thirdly, the range of offences is somewhat different.
I hope that reassures the shadow Minister that the community resolution will remain—it is not being abolished—and therefore we have a sensible hierarchy of provisions available for the police to choose from. I hope that provides him with the reassurance that he was asking for.
Question put and agreed to.
Clause 86 accordingly ordered to stand part of the Bill.
Clauses 87 to 93 ordered to stand part of the Bill.
Code of practice
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clauses 95 and 96 stand part.
The clauses in this group apply to both types of caution and provide an overarching framework in which the new cautions will sit. Each clause has a particular function, and I will address them in turn.
Clause 94 introduces a general code of practice and requires the Secretary of State to prepare it—we have talked about that already. It specifies the kind of matters that such a code will include, such as the circumstances within the clauses, the procedure, the conditions that may be imposed and the period of time. We talked about that earlier. It is very important that we get that right for the rehabilitative purposes that we have discussed and to cover issues such as the one that the hon. Member for Enfield, Southgate mentioned. That includes who may give the cautions, the manner in which they may be given, the places where they will be given, how the financial penalty should be paid, how we monitor compliance, the circumstances in which a power of arrest may arise, and so on. I should add that the code cannot be published or amended without the prior consent of the Attorney General. We need this clause to ensure the code can exist.
Clause 95 enables the Secretary of State to make regulations placing restrictions on the multiple use of diversionary and community cautions. They should have reference to the number of times a particular individual has received cautions previously. The regulations made under this clause will be laid in draft form before Parliament for scrutiny and will be subject to an approval resolution of both Houses. That provides a key safeguard and ensures that the out-of-court disposal framework is being used as intended and is not being used inappropriately—for example, where there is repeat offending that should be handled through more serious means, such as prosecution.
Clause 96 abolishes the previous caution regime, as the shadow Minister said, but does not abolish community resolutions. That obviously follows the widespread consultation that we had previously and lays the groundwork for the new system that we debated in the previous two groups.
Question put and agreed to.
Clause 94 accordingly ordered to stand part of the Bill.
Clauses 95 and 96 ordered to stand part of the Bill.
Consequential amendments relating to Part 6
Question proposed, That the clause stand part of the Bill.
Clause 97 introduces schedule 10, which makes various consequential amendments to existing legislation to ensure the proper operation of the new two-tier system, which we have just discussed, and the removal of the existing out-of-court disposals. Clause 97 and schedule 10 make those technical changes.
Question put and agreed to.
Clause 97 accordingly ordered to stand part of the Bill.
Cautions: consequential amendments
I beg to move amendment 117, page 228, line 15, in schedule 10, leave out sub-paragraphs (2) and (3) and insert—
‘(2) In paragraph 1(1)—
(a) for “—“ substitute “at the time the caution is given.”, and
(b) omit sub-sub-paragraphs (a) and (b).”
This amendment would remove the spending period for cautions.
We have discussed a number of important matters over the course of the morning, all of which impact on the lives of young people and older people. They have all been extremely important issues, but for me this amendment is particularly important, because it would make life a lot easier for a lot of people, and probably contribute more than some of the other things that we have discussed to keeping them out of the criminal justice system.
Amendment 117 would remove the spending period for cautions. It would revise the text of the Rehabilitation of Offenders Act 1974 to the following:
“For the purposes of this Schedule a caution shall be regarded as a spent caution at the time the caution is given.”
Currently the upper-tier disposal of a conditional caution has a spending period that is the earlier of three months or the completion of the caution, and the Bill will maintain that spending period for the diversionary caution. We believe that the spending period associated with diversionary cautions should be removed so that those who receive one are not forced to disclose this record to potential employers. The effect of the spending period attached to cautions is to increase the barriers to employment for those who are diverted from court.
Given the Government’s commitment to reform of rehabilitation periods elsewhere in the Bill—at part 11—we believe that this is a good opportunity to continue the direction of travel that the Government are on, make another positive change in this area and remove the rehabilitation period for cautions as well. The Government may believe that a three-month spending period is required for a diversionary caution in order to support public protection. However, there is strong evidence, of which I am sure the Minister is aware, that employment is one of the most important factors, if not the most important, in enabling people to cease offending. Research has also found that employers discriminate against people with criminal records and that many do not differentiate between a caution and a conviction.
A three-month rehabilitation period is short enough to have little impact on public protection, but its existence requires people in employment to declare the caution and so risk losing their job. It acts as a barrier to those seeking work, education, insurance and volunteering opportunities. It is also important to remember that criminal record disclosure in itself is not really a public protection measure: the general public cannot check a person’s record or require them to disclose it. In any event, under present guidance, if the police or CPS believe that someone is a legitimate risk to others, they would never meet the public interest test for caution instead of charge.
On the issue of accepting a caution, if people think that it might lead to this being on the criminal record, they might be less inclined to accept a caution and might therefore take their chances by going to court. Does my hon. Friend think that it would potentially lead to more cases going to court if this matter stayed on the criminal record?
Indeed. My hon. Friend is correct in saying that it could lead to greater congestion in the courts system, but the most important thing in all this is that it removes the person’s opportunity to move on with their life in an appropriate way. If they are able to have a caution and they do not have to tell their employer that they have had their knuckles rapped in such a way, they will be able to continue in employment, whereas otherwise they may well lose their job.
In some cases, cautions are appropriate for individuals who pose a low level of risk, but only when combined with other supervision measures. In such cases, that often means the sex offenders register. But in these cases, it is the sex offenders register—or other supervision measure—that acts as the public protection measure, not the spending period attached to the caution.
The spending period also introduces unnecessary confusion for those given cautions. The rehabilitation period will be the same as for the conditional caution, so it will be the earlier of three months or when the diversionary caution ceases to have effect. This is quite a perplexing element of the current system, because those who receive conditional cautions often do not understand the disclosure regime and have no way of knowing whether their conditions are judged as completed before three months. Officers often do not explain disclosure related to cautions comprehensively and offenders do not know that there is a link between meeting conditions and their becoming spent. The situation is so confusing that some third sector organisations that support offenders universally tell them that the spending period is three months from caution, because this is the only way for them to be certain that the caution is completely spent and, therefore, that the offender will not unintentionally fall foul of the disclosure process.
We think it would be preferable to have a “cautions are spent when given” standard. Otherwise, we will end up with a situation in which the criminal justice system is giving out more of the new cautions than prison sentences, but Parliament will have given the cautions a more complex disclosure regime. Perhaps the Government think that a spending period is necessary because of the seriousness of the diversionary caution, but we must remember that rehabilitation periods are not part of the punitive aspect of a disposal, and the knock-on effect on someone’s life from having to disclose should not be used as a punishment. Under current guidance, magistrates and judges are specifically precluded from considering disclosure periods when giving sentences, and they must always give the correct disposal, regardless of the criminal record impact.
With all that said, I would welcome the Minister’s thoughts on the need for the spending period for the diversionary caution and other cautions outside the adult regime. We believe that introducing a spending period for the diversionary caution will hamper people’s efforts to gain employment, while doing little for public protection. That is true for the spending period for all cautions. The Government are doing good work in reforming the criminal records disclosure regime and, by extension, helping people to stay out of the offending cycle and rebuild their lives. The amendment has been tabled with the same intention, and I sincerely hope that the Government can support it.
Can I just look a Whip in the eye? We are making good progress, and it is nearly 1 o’clock. Some of us—perhaps even myself—would like to have lunch. We do not want to cut the Minister off in full flow, so perhaps it is now time for a break.
Adjourned till this day at Two o’clock.
Police, Crime, Sentencing and Courts Bill (Twelfth sitting)
The Committee consisted of the following Members:
Chairs: † Sir Charles Walker, Steve McCabe
Anderson, Lee (Ashfield) (Con)
† Atkins, Victoria (Parliamentary Under-Secretary of State for the Home Department)
Baillie, Siobhan (Stroud) (Con)
Champion, Sarah (Rotherham) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Clarkson, Chris (Heywood and Middleton) (Con)
† Cunningham, Alex (Stockton North) (Lab)
Dorans, Allan (Ayr, Carrick and Cumnock) (SNP)
† Eagle, Maria (Garston and Halewood) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
† Higginbotham, Antony (Burnley) (Con)
Jones, Sarah (Croydon Central) (Lab)
Levy, Ian (Blyth Valley) (Con)
† Philp, Chris (Parliamentary Under-Secretary of State for the Home Department)
† Pursglove, Tom (Corby) (Con)
Wheeler, Mrs Heather (South Derbyshire) (Con)
Williams, Hywel (Arfon) (PC)
Huw Yardley, Sarah Thatcher, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 10 June 2021
[Sir Charles Walker in the Chair]
Police, Crime, Sentencing and Courts Bill
Cautions: consequential amendments
Amendment proposed (this day): 117, in schedule 10, page 228, line 15, leave out sub-paragraphs (2) and (3) and insert—
“(2) In paragraph 1(1)—
(a) for ‘—’ substitute ‘at the time the caution is given.’, and
(b) omit sub-sub-paragraphs (a) and (b).”— (Alex Cunningham.)
This amendment would remove the spending period for cautions.
Question again proposed, That the amendment be made.
I trust that everyone has returned from lunch re-energised and refreshed. I want to respond to one or two of the points made prior to lunch by the shadow Minister, the hon. Member for Stockton North. In moving the amendment, he argued that the diversionary caution should not have a rehabilitation period of three months from the date of the caution being given or, if earlier, the date on which the caution ceases to have effect because the conditions have been met.
I understand the hon. Gentleman’s point, but none the less I respectfully disagree with him, for the following reasons. First, the offences for which a diversionary caution might be given include offences of a certain degree of gravity. They are offences where there was sufficient evidence available to prosecute, and had that prosecution proceeded, a far more serious penalty, including a longer spending period, would have been applicable. There is a balance to strike between a desire to let the offender move on with their lives and public protection, and the relatively short spending period—only three months, which is not very long—aims to strike that balance.
Secondly, it is important that we distinguish between the diversionary caution and the community caution. One of the ways in which we do so is the fact that the diversionary caution has a three-month spending period until rehabilitation, whereas the community caution does not. Were we to remove that, it would diminish the difference between those two forms of caution. That sort of hierarchy, as I put it before lunch, is important, and we should seek to preserve it, reflecting the fact that diversionary cautions are more serious that community cautions.
There is also a third reason, which occurred to me during the shadow Minister’s speech. Given that the caution can be extinguished, in terms of the need to disclose it, the offender has an incentive to meet the conditions early within the three months. The conditions might include the need to attend a particular training course or to commence a treatment programme if they have a drug or alcohol problem. Saying that the offender has been rehabilitated at the point at which they meet the condition creates an incentive for them to meet it sooner rather than later. We should bear that in mind. Although I understand where the shadow Minister is coming from, for all those reasons I urge the Opposition to withdraw the amendment.
I am a little saddened and disappointed that, for all he has said, the Minister does not recognise the real impact that disclosure can have on people, perhaps preventing them from getting a job or even resulting in them losing their job. That is a great sadness. He says that three months is not a very long time, but a person has to report a caution to their employer on the day they receive it, and it could result in their dismissal. Similarly, anyone applying for a job would have to disclose it to the employer, which may well result in them losing that employment opportunity and the chance to turn their life around. Moreover, if an officer is content that a caution is appropriate, why on earth is the additional punishment of a disclosure period being sought? I intend to press the amendment to a Division, simply because I think it is in people’s best interests and represents for the individual given a caution the best chance to change for the better.
Question put, That the amendment be made.
Schedule 10 agreed to.
Regulations under Part 6
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to consider clause 99.
These clauses essentially assist with the implementation of the measures we have debated. Clause 98 sets out that regulations under part 6 are to be made by statutory instrument and the parliamentary procedure applicable. It also provides that regulations may make different provisions for purposes and consequential, supplementary, incidental, transitional and transitory provisions and savings. It would not be possible, or indeed appropriate, for all the detail to be set out in the Bill; there is simply too much, and doing so would entail a certain lack of flexibility, as we often discuss. The clause provides the appropriate parliamentary procedure to fill in those details as appropriate, which we will of course debate as they arise. However, the key principles are clearly set out in the Bill, as we have debated.
Clause 99 sets out certain definitions that are relevant for part 6 of the Bill—the out-of-court disposal provisions. The clause is essential to provide clarity in making sure that the new framework, which we spent this morning debating, is properly, accurately and precisely interpreted.
Question put and agreed to.
Clause 98 accordingly ordered to stand part of the Bill.
Clause 99 ordered to stand part of the Bill.
Minimum sentences for particular offences
With this it will be convenient to consider schedule 11.
Clause 100 amends the criteria applied for when a court may depart from imposing a minimum sentence. Minimum sentences are rare in this jurisdiction, and generally speaking, but not always, they apply to repeat offences. These minimum sentences are not, technically or legally speaking, mandatory or completely binding on the court, but it is mandatory that the court must consider passing that minimum sentence. The court may depart from imposing that minimum sentence only by having regard to the particular circumstances of the offender and the nature of the case, so an element of judicial discretion is retained.
However, given that Parliament has legislated to set out these minimum sentences, we think it right that the court should depart from the minimum sentences specified by Parliament not by having regard to the particular circumstances of the case but only in exceptional circumstances. In effect, the clause raises the bar for when a judge can depart from these minimum sentences; it tells the judge that circumstances must be exceptional before the minimum sentence is disregarded, to make sure that Parliament’s will in this area is better reflected by the sentences the court hands down.
Clause 100 will cover four offences: threatening a person with a weapon or bladed article, which carries a minimum sentence of four years; a third offence in relation to trafficking a class A drug, which carries a minimum sentence of seven years; a third domestic burglary offence, which carries a minimum sentence of three years; and a repeat offence—a second or higher offence—involving a weapon or bladed article. The clause strengthens the minimum sentences in those cases and makes it harder for the judge to depart from the minimum, or reduces the range of circumstances in which such a departure might occur. Three of the four offences are repeat offences; the fourth is a first-time offence. They are fairly clearly defined offences for drug trafficking or domestic burglary, where Parliament clearly decided in the past that there was less necessity for judicial discretion.
Schedule 11 makes consequential amendments to existing legislation as a result of clause 11, to give effect to what we have just discussed. The amendments are to section 37 of the Mental Health Act 1983 and to the Armed Forces Act 2006.
These offences are serious. In the past, Parliament has taken a view that a minimum sentence is appropriate, particularly for repeat offences. It is therefore appropriate that we today make sure that the courts follow Parliament’s view as often as possible.
I asked for figures on how often judges depart from the minimum sentences. For the burglary offence, the data is a couple of years old, but it looks like the court departed from the minimum sentence in that year in about 37% of cases, so in quite a wide range of cases. It is on that basis—to tighten up the strength of minimum sentences—that we are introducing clause 100 and schedule 11 today.
As the Minister said, clause 100 would change the law so that for certain offences a court is required to impose a custodial sentence of at least the statutory minimum term unless there are “exceptional” reasons not to. This is a change from allowing the court to impose a custodial sentence of at least the minimum unless there are “particular” reasons not to.
The offences and their statutory minimums are: a third-strike importation of class A drugs, with a seven-year minimum sentence; a third-strike domestic burglary, with a three-year minimum sentence; a second-strike possession of a knife or offensive weapon, with a six-month minimum; and threatening a person with a blade or offensive weapon in public, with a six-month minimum.
As the Minister has pointed out, the effect of clause 100 is relatively simple, although the Opposition are concerned that it will also be profound. The law currently allows for minimum custodial sentences to be handed down to those who repeatedly offend. As things stand, judges can depart from the minimum sentences when they are of the opinion that there are particular circumstances that would make it unjust not to do so.
Despite what the Minister says about judicial discretion, the proposition put forward by the Government seems to be that the Government are concerned that the judiciary has been too lenient when imposing minimum sentences, and therefore the law needs to be strengthened in this area. The Government’s solution is to change the law so that for certain repeat offences, a court is required to impose a minimum term unless there are exceptional circumstances not to. In a nutshell, clause 100 seeks to make it harder for judges to exercise their discretion and moves away from the statutory minimum sentence for a small number of offences.
The offences that clause 100 applies to are the trafficking of class A drugs, domestic burglary, possession of a knife or offensive weapon, and threatening a person with a blade or an offensive weapon in public. The Opposition have two main concerns with clause 100. The first is why the change is being made now and what evidence exists that it is actually necessary. When the Sentencing Council considered the Government’s intention to make changes to mandatory minimum sentences for these offences, it was clear in its response:
“We would however counsel strongly against any substantive changes to these mandatory sentences. At present, the regime is quite clear, and courts have been applying the criteria without difficulty…Parliament should not try and pre-empt this exercise of judicial discretion. At the very least, the Government should undertake or commission research into the ways that courts have exercised their discretion in this regard. Until, and unless, the Government can demonstrate that judges have been excessively indulgent, or that the provisions are misfiring in some way, amendments are unnecessary and inappropriate. To date, the Government has offered no such demonstration.”
The Sentencing Council is not the only body concerned about the reasoning behind this move. The Bar Council also advised against it, arguing that clause 100
“will prevent judges from being able to exercise the necessary discretion to hand down a sentence based on the circumstances of the case.”
It said that the clause will also
“increase the prison population, which is already under significant strain.”
My hon. Friend is making an excellent point. Judges know the case and the circumstances of it, so they are better placed to use their discretion, taking into account the particular set of circumstances, which we cannot know about when we are passing something that gives carte blanche on a particular sentence minimum.
Yes, that is very much the case. These organisations all make the same point: we are limiting the judges’ discretion. We are limiting the discretion of the individual who best knows the case, as they have actually heard the case, so it is certainly worrying. In fact, in the sentencing White Paper, the Government note that “concerns have been raised”, and that some repeat offenders are receiving too-lenient sentences, but they fall short of naming a single body that supports that view.
In the same vein, rather than presenting the evidence for change, the White Paper highlights only a single statistic in relation to those convicted of a burglary who receive a sentence lower than the minimum three-year term. I am sure I do not have to remind the Minister that that is as single statistic relating to a single offence out of his list of four. I ask him a very simple question: what evidence has he brought to the Committee today to show that judges have been unduly lenient when sentencing repeat offenders in relation to the importation of class A drugs, possession of a knife or offensive weapon or threatening a person with a blade or offensive weapon in public?
The second of the Opposition’s concerns is how the proposed changes to clause 100 will further entrench the already shameful levels of racial disparity in our criminal justice system. As the Minister is all too aware, since the Lammy review was published in September 2017, racial disparity in the criminal justice system has got considerably worse. The statistics speak for themselves. Black offenders are 26% more likely than white offenders to be remanded in custody, while the figure for black women is 29% more likely. Offenders from black, Asian and minority ethnic backgrounds are 81% more likely than white offenders to be sent to prison for indictable offences, even when factoring in higher not guilty plea rates. Over one quarter—27%—of people in prison are from a minority ethnic group, despite the fact that they make up 14% of the total population of England and Wales. If our prison population reflected the ethnic make-up of England and Wales, we would have over 9,000 fewer people in prison—a truly staggering figure.
That is before we even begin to touch on disproportionality in the youth system, which is even more pronounced. For the first time, young people from a BAME background now make up 51%—over half—of those in custody, despite that group making up only 14% of the population. The proportion of black children who are arrested, cautioned or sentenced is now twice what it was 10 years ago, and the proportion of black children on remand in youth custody has increased to over a third.
When my right hon. Friend the Member for Tottenham (Mr Lammy) was asked by the then Conservative Government to carry out his review, he did so in the belief that that Government, and successive Governments, would implement the recommendations he made. Sadly, that was not the case. At the last count, fewer than 10 of the 35 recommendations had been fully implemented. Perhaps the Minister will explain whether that is still the case today and, if so, why the Government have made so little progress on that in the last four years.
The picture emerging from this Government is that they do not care about reducing racial disparities in our criminal justice system, which is not an accusation I make lightly. Statement after statement recognising the disparities and promising change appears to be no more than lip service. Worse still, many of the measures in the Bill will further entrench racial inequality in the criminal justice system—one of them being the introduction of clause 100. It is abundantly clear that the clause will have a disproportionate impact on offenders from a black, Asian or minority ethnic background.
We know from a Government report published in 2016 that for drugs offences the odds of receiving a prison sentence were around 240% higher for black, Asian and minority ethnic offenders than for white offenders. Even the equalities impact assessment that accompanies the Bill acknowledges an over-representation of certain ethnic groups and the increased likelihood of their being sentenced to custody and given a longer sentence. It states:
“We recognise that some individuals with protected characteristics are likely to be over-represented in the groups of people this policy will affect, by virtue of the demographics of the existing offender population.”
I am not. The point I am making is that the Government are driving an agenda that will result in more black, Asian and ethnic minority people ending up in the criminal justice system and suffering even greater sentences.
The Government’s own equalities impact assessment goes on:
“BAME individuals appear to have high representation in the Class A drug trafficking cohort and possession of or threatening with a blade… As a result, the proposal may put people with these protected characteristics at a particular disadvantage when compared to persons who do not share these characteristics since they may be more likely to be given a custodial sentence and serve longer sentences than before.”
The Minister could do no better than looking to America to see how three-strike drug laws have had a horrific impact on disproportionality rates in the criminal justice system. As he will no doubt be aware, the three-strikes crime Bill that was introduced by Bill Clinton in the 1990s has been roundly criticised by all sides of the American political spectrum. Democrats, Republicans and even Bill Clinton himself have spoken of how the Bill was a grave mistake that contributed to overpopulated prisons and a mass incarceration of BAME offenders in particular.
What makes this all the more astonishing is that this Government have gone to some lengths in recent times to state their commitment to reducing racial disparity in the justice system. In his foreword to the latest update on tackling race disparity in the criminal justice system, the Lord Chancellor made it clear that addressing the over-representation of people from ethnic and racial minorities was a personal focus for him—that was very welcome. Will the Minister explain, then, why the Government chose not to undertake a full equalities impact assessment of how measures in the Bill could have a detrimental impact on minority groups? Given that many of the measures in the sentencing White Paper involve serious sentence uplifts, it is absolutely critical that the Government fully understand how those from minority backgrounds could be disproportionately impacted. As I have explained, failing to do so runs the risk of further exacerbating the already horrendous disparities that we see in the system today. Is the Minister content to see such disparities widen even further, or will he outline today just what the Government will do to address this issue?
Does my hon. Friend agree that being against this kind of disparity is all well and good, but the only way one can reduce it, which I believe is the Government’s policy, is to be very careful—moving policy initiative by policy initiative, and change in the law by change in the law —that new measures take into account the impact of such changes on that disparity?
I most certainly do agree with my hon. Friend. That is why we posed the question: why has there not been a full impact assessment of the impact of these measures on the BAME community? I would go so far as to challenge the Minister and his Government not just to outline the measures they will take to end these disparities but to set themselves some targets to end this injustice once and for all.
The final point I will touch on is how the Government came to a decision on which of the four offences they have included under the scope of clause 100. I remind the Committee that they are trafficking of class A drugs, domestic burglary, possession of a knife or offensive weapon, and threatening a person with a blade or offensive weapon in public. Although those are undoubtedly serious crimes, we have some concerns that focusing on such a small cohort of crimes risks missing the larger criminal forces that are at work in our country.
Take possession of a knife or offensive weapon, for example. All too often when we think of knife crime, the focus of our thoughts is on young men—often young BAME men from a disadvantaged background—carrying knives as part of a gang. Yet this image is deeply simplistic and misses the greater criminal forces at play. As my right hon. Friend the Member for Tottenham pointed out, most of the time knife crime is not being driven by youths but by a sophisticated network of veteran organised criminals. As he wrote in The Guardian so eloquently:
“Young people falling into the wrong crowd in Tottenham, Salford or Croydon know nothing about the trafficking of tonnes of cocaine across our borders every single year. They know nothing of the shipment routes from Central and South America that have made London a cocaine capital of Europe. They know nothing of the lorries, container vessels, luxury yachts and private jets that supply our nation’s £11bn-a-year drug market….This isn’t about kids in tracksuits carrying knives, it’s about men in suits carrying briefcases. It is serious criminal networks that are exploiting our young people, arming them to the teeth and sending them out to fight turf wars.”
I certainly agree with the right hon. Member for Scarborough and Whitby, and I have given his constituency its full title—how on earth could I ever forget Whitby, when it is one of my favourite destinations for a day out? I am sure he will understand why that is the case. For me, this issue is about how we tackle the guys with the briefcases and not just the young men on the streets? How do we make sure that we deal with organised crime? We have seen some great results recently in my own constituency and across the Cleveland police area, where there have been raids on individual houses and the police found large amounts of drugs. However, those drugs are finding their way in through Teesport and through the Tyneside ports as well. We are failing to get to the people who are driving the entire trade and we need to do much, much more to do so.
With the National Crime Agency currently prioritising cyber-crime, child sexual exploitation and terrorism, and the Serious Violence Taskforce having been disbanded recently, I would be grateful if the Minister could explain how anything in clause 100 will tackle serious organised criminality.
To conclude, the Opposition have deep concerns about the introduction of the power in clause 100. We worry that it has been introduced without an evidential basis, without consultation with impacted groups, and without a full equalities impact assessment. Even more importantly, we worry that it will further entrench the already shameful levels of racial disparity in our criminal justice system while failing to tackle the underlying causes of the crimes that we have been discussing. I look forward to hearing the Minister’s response, which I hope will address the issues that I have raised.
Let me respond to some of the questions and points that the shadow Minister raised in his speech. First, I should be clear that in forming the proposals the Government have considered carefully, in accordance with the public sector equality duty under the Equality Act 2010, the impact that these changes in the law might have on people with protected characteristics, including race. The full equality impact assessment was published alongside the draft legislation, and I can confirm that it is publicly available should anybody want to scrutinise it.
The shadow Minister asked why these measures are being introduced, and he asked for the evidence base for doing so. He mentioned evidence that appeared in the original White Paper published last September. I gave a statistic in my speech introducing the clause about the proportion of cases where the minimum is disapplied for the burglary offence. I said it was over a third. I should add that those are unpublished figures. They have not gone through the usual verification process, but it is clearly over a third. That is a single further bit of evidence demonstrating that judges are departing quite a lot.
It is important to specify that departures should be exceptional rather than simply particular, because Parliament has taken the time and trouble to specify these minimum sentences. It has done so after careful and due consideration. It is very unusual, as we might debate later, to have minimum sentences, even for repeat offenders. Having given the matter such careful consideration in the past, it seems reasonable to expect judges to implement that, unless there are exceptional circumstances. We are simply talking about somewhat elevating the test before judges depart.
There is still residual judicial discretion; if a judge thinks there is an exceptional circumstance that means that the minimum is not appropriate, the judge can still not give the minimum—their hands are not completely tied. This is just about making it clear to those handing down sentences that this should be exceptional rather than more routine. There is data that shows that the departures are quite widespread. I have mentioned some, and the shadow Minister referred to the White Paper. But beyond the data there is also the point of principle I mentioned a moment ago about making sure that Parliament’s intent is reflected in the sentences that are, in practice, handed down.
On racial disparity, these measures will in some sense mitigate against any implied systemic bias, which I do not, by the way, accept exists in the sentencing context. They actually make the application of the sentence more mechanistic; they just specify, almost as a formula, that if a particular set of circumstances is met, a certain sentence follows. That makes the system almost automatic and reduces the discretionary element. If someone does not want to have the minimums applied to them, they should not commit the offence in the first place.
But there clearly are issues that the Government want to address. This is a broader topic, and I do not want to dwell on it, because it is probably out of scope. There are obviously wider issues of racial disparity in the criminal justice system, which the shadow Minister referred to. A very good and comprehensive statement was made on this topic by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), a few months ago. I strongly commend his statement, because he went through the recommendations resulting from the Lammy review—I am probably allowed to say that, given that it is the name of the report, and I am not referring to a colleague by their name—demonstrating in each of the various cases what concrete action was being taken to address the concerns that the review uncovered. As the shadow Minister said, the Government do want to take action to make sure the justice system is always fair and is seen to be fair.
Does the Minister accept that despite the Government’s intentions, good as they may be, to reduce disparity, the reality is that it is not reducing and has not reduced since the report was published? Does he therefore accept that the Government need to do more?
I have not seen the up-to-date data for the past year, but I accept that we need to pay continuous attention to these issues. We need to make sure that the justice system always behaves in a fair and even-handed manner. Clearly, we accept that we need to be eternally vigilant on that front.
To return to the topic of this clause, it is simply about making sure that the decisions taken by previous Parliaments are reflected in the way in which judges take their decisions. We also need to ensure that departing from what Parliament has specified happens only in exceptional cases. Believing as I do in parliamentary sovereignty, that seems reasonable to me.
Question put, That the clause stand part of the Bill.
Clause 100 ordered to stand part of the Bill.
Schedule 11 agreed to.
Whole life order as starting point for premeditated child murder
I beg to move amendment 1, in clause 101, page 86, line 41, at end insert—
“(bb) the abduction, sexual assault and murder of a person not previously known to the offender,”.
The amendment would extend the whole life tariff captured by the clause to someone guilty of the murder, abduction and sexual assault of a stranger. Later in my speech I will provide substantial detail on why we should do that.
First, I want to demonstrate the Opposition’s support for what the Government are tyring to do with this particular clause. As the Minister will no doubt point out later, a whole life order is the most severe sentencing option available to members of the judiciary in England and Wales. Only a small number of criminals a year will ever be convicted of a crime so exceptionally terrible that it warrants such a punishment. The effect of a whole life order is as simple as it is final. Once sentenced, the offender loses any right of a sentence review. They will spend the rest of their lives in prison, without any possibility of hope or release. From the moment they are sentenced, they will never again set foot outside prison.
The decision to deprive someone of their liberty indefinitely is a daunting one, and I do not envy the enormous responsibility placed at the door of the judges who hear these types of cases. None the less, as an Opposition we are pragmatic. Although we are strong believers in the power and importance of rehabilitation, we accept that some offenders are so uniquely evil that even our greatest attempts to reform them would most likely be in vain.
One only has to consider some of the handful of offenders who have received a whole life order to realise the type of criminality we are dealing with. Ian Brady and Myra Hindley, the Moors murderers, were convicted of the torture and murder of three innocent children between 1963 and 1965. I was eight, nine and 10 years old during that time, and I actually remember the television reports. Dennis Nielsen was a former policeman who murdered and dismembered at least 12 young men and boys between 1978 and 1983. Rose West collaborated with her husband in the torture and murder of at least nine young women between 1973 and 1987, including her eight-year-old stepdaughter. Harold Shipman, the infamous GP, is thought to have been responsible for the murder of over 200 women who trusted him with their care and wellbeing. Peter Sutcliffe, the Yorkshire Ripper, murdered 13 women and attacked seven others in a killing spree that terrified the nation between 1975 and 1980—the list goes on. Each of those names will live in the consciousness of the nation for evermore. Each was found guilty of crimes so extraordinarily evil that their actions cannot, and should not, be forgotten.
Today, we have before us the question whether to extend the list of crimes for which a whole-life order can be handed down. Under the current sentencing framework, a whole-life order can be given only for
“the murder of two or more persons where each murder involves a substantial degree of premeditation, the abduction of the victim, or sexual or sadistic conduct… the murder of a child if involving the abduction of the child or sexual or sadistic motivation… the murder of a police or prison officer in the course of his duty… a murder done for the purpose of advancing a political, religious or ideological cause; or… a murder by an offender previously convicted of murder.”
The clause will widen that list to cover the murder of a child if that murder can be shown to have involved a substantial degree of premeditation or planning.
In coming to a decision on whether that is a proposal the Opposition can support, we must first understand how many additional offenders the Government estimate will be caught by such a change in the law. The Government’s impact assessment acknowledges that whole-life orders are
“an exceptionally rare sentence, with fewer than 5 given out per year on average over the past decade.”
It goes on to note that the measure is expected to increase the number of whole-life orders handed out by
“a maximum of about 10 offenders per year”.
The Sentencing Academy response to the sentencing White Paper noted that the requirement of a substantial degree of premeditation or planning should mean that the number of offenders caught by that charge would be relatively small.
None the less, the Government must face the fact that widening the list of offences that can attract whole-life orders will naturally put an already overstretched prison system under even greater strain. As the Minister will have seen, only last week, an internal survey by the Prison Officers Association showed just how precarious the system is in our prisons. That survey showed that 85% of prison officers report feeling burned out; more than 40% of prison staff are suffering moderate or severe anxiety symptoms; and more than 80% feel that their mental and physical health have got worse during the pandemic. That is on top of what we already know—that our prisons are already overcrowded and understaffed, and are hotbeds of crime, as I said in my contribution to the driving offences debate earlier this week. Therefore, I would be grateful if the Minister today committed himself and the Government to ensuring that all the toughest sentences in the Bill—not just in the clause—will be properly resourced and funded. Can we have an assurance that whole-life orders will remain a sentencing option only for those who have committed the worst offences?
We must now consider whether the premeditated murder of a child is as heinous a crime as the other crimes that can attract a whole-life order. On that point, the Opposition are clear: it certainly is. The law allows for whole-life sentences to be handed down to those who murder a child following the child’s abduction, or if the murder involves sexual or sadistic motivation. However, the Opposition agree with the Government’s point that any murder of a child committed with a high degree of premeditation should also warrant a whole-life order. What we are talking about here is a purely evil act—killing someone in the prime of life, taking away their opportunity to go to university and to forge a career, and taking away their hopes of settling down and having a family.
For a whole-life order to be handed down, the current legal framework requires the killing of a child to involve abduction or a sexual or sadistic motivation. That raises the question, how can it be possible for the murder of a child not to involve a sadistic intention? When someone chooses to take the life of a child, they do so in the knowledge of the immense pain it will cause the loved ones of the victim for the rest of their lives. Thankfully, the number of offenders who commit the murder of a child with a high degree of premeditation is relatively small, but Labour fully agrees that those in that group of offenders deserve to spend the rest of their life in prison, not only to protect society, but to ensure that their sentence reflects the horrendous nature of their crime.
That is not the only horrific crime to which Labour feels whole-life orders should be extended. We believe they should be extended to those who abduct, sexually assault and murder a stranger. Let me therefore turn specifically to amendment 1, which would insert at the end of the clause the words
“the abduction, sexual assault and murder of a person not previously known to the offender,”.
Following the death of Sarah Everard, the Labour Front Benchers tabled that amendment, which would extend the whole-life tariff to someone guilty of the murder, abduction and sexual assault of a stranger.
On the evening of 3 March, 33-year-old Sarah Everard visited a friend in south London and later began to walk across Clapham Common in the direction of home. She had her whole life ahead of her. She was young, intelligent, popular and kind, and her family described her as a “shining example” to all, who brought them nothing but pride and joy. She took precautions to keep herself safe, choosing well-lit streets and talking to her boyfriend on the phone. Tragically, that was not enough.
It is by no means an exaggeration to say that the disappearance and death of Sarah Everard sent a shockwave across the country and changed the way we think about violence against girls and women. Sarah’s death reignited the national debate about the endemic culture of harassment, violence and abuse that women and girls face daily, a debate that we can all admit should have been had much earlier.
While we are limited in what we can say about the circumstances of Sarah’s disappearance and murder, for many women and girls, Sarah’s murder was a wake-up call. A young woman vanished without trace while walking home alone from a friend’s house—a simple routine that most women follow every week. Many women felt it could easily have been them in Sarah’s shoes, snatched on Clapham Common, their only fault being a woman in the wrong place at the wrong time.
Like the premeditated murder of a child, the abduction and murder of a stranger is thankfully rare. That does not make women feel any safer, however, nor does it make the crime any less heinous. It is a shameful indictment of the type of society we are today that women feel unsafe to walk home alone at night, fearful that they could be harassed, assaulted or worse, simply because of being a woman. It is also shameful that women should consider the need to take precautionary measures—for example, putting their keys between their fingers or pretending to talk loudly on the phone to put off potential attackers—second nature. Frankly, however, who could blame them?
The statistics are as damning as they are frightening. Each week, women of all backgrounds, from all parts of the country and of all ages, are brutally murdered by violent men. In 2016, 125 women in the UK were killed by men. In 2017 and 2018, that number rose to 147. Over the past decade, 1,425 women have been murdered in the UK. That is roughly one woman every three days. Furthermore, in one year alone, more than half a million women suffered sexual assault.
In the wake of Sarah Everard’s death, more than 1,000 people marched on Parliament Square with one very simple message: “Enough is enough”. Women and girls across the country have had enough of being targeted by violent men, of being punch-bags, of being harassed and of being treated as second-class citizens. Labour stands by those women. I hope that Conservative Members will stand with us. As parliamentarians, it is our duty to ensure that women and girls feel safe and valued in society, and to recognise their pain and frustration.
Following Sarah Everard’s tragic murder, we can send a powerful message to women and girls up and down the country by ensuring that anyone who abducts and murders a woman faces the severest punishments available. I hope we can look forward to the Minister’s support for the amendment as he recognises that the harshest possible sentence should apply to offenders found guilty of—I repeat again—the murder, abduction and sexual assault of a stranger.
Before we continue, can we be a little careful here? I have been in discussion with the Clerk and others, and I am not sure that we need to be careful, but let us be careful because there is still not a sentence yet. I am sorry—
I know you were. I just want everybody to be careful.
The shadow Minister has given a comprehensive and thorough introduction to the topic of whole-life orders, which I had intended to give the Committee myself. As he has laid out the background, I do not propose to repeat it. He accurately described how they operate and the categories of offender to which they apply. As he said, a whole-life order is the most severe punishment that a court can hand down, ensuring that the person so sentenced never leaves prison under any circumstances.
The shadow Minister illustrated the gravity and seriousness of such sentences by listing some of the terrible cases from the past 30 or 40 years, or indeed the past 50 years, in which whole-life orders have been imposed. The clause proposes to add to the small list of offences that qualify for a whole-life order as a starting point the heinous case of premeditated child murder—a crime so awful and appalling that I think all hon. Members agree it should be added to the list.
The murder of a child is particularly appalling, and whether we are parents or not, we all feel deeply, particularly when there is a degree of premeditation—when it is not just in the moment, but planned and intended for some time—that the crime is truly terrible and enormous. That is why the Government propose to expand the whole-life order. I think there is unanimity on that point.
The shadow Minister raised the important question of violence against women and girls, both in general terms and in the context of a particular case, which Sir Charles has asked us to be careful about because it is subject to live legal proceedings. The matter is not concluded before the courts, so of course we should be a little careful. Let me start with the wider issue of violence against women and girls.
For many years, the Government have had an unshakable commitment to protecting women and girls from the completely unacceptable violence and harassment that they all too often suffer at the hands of men. My hon. Friend the Member for Louth and Horncastle, the safeguarding Minister, has been at the forefront in recent years—introducing the Domestic Abuse Bill, which reached the statute book as the Domestic Abuse Act 2021 a short time ago, and leading and taking forward our work in this area. In the relatively near future—certainly in the next few months—we will publish a refreshed violence against women and girls strategy and a domestic abuse strategy, both of which will take further our work in this area.
A great deal of work has been done in the last five or 10 years, almost always with cross-party support. For example, banning upskirting started off as a private Member’s Bill and the measure was then passed by the Government. There are also recent measures on non-fatal strangulation, which are critical to protecting women, and work on the rough sex defence, which is part of the Domestic Abuse Act. We have introduced additional stalking offences over the last few years and increased sentences for such offences. A huge amount of work has been done, is being done and will be done to protect women and girls from attack. As the shadow Minister rightly said, women and girls have the right to walk the streets any time of day or night without fear. That is not the case at the moment, and we all need to make sure that changes.
In relation to the terrible crime of rape, it is worth mentioning, by way of context, that sentences have been increasing over the past few years. The average adult rape sentence rose from 79 months in 2010 to 109 months in 2020, an increase of approximately two and a half years—and quite right, too. However, it is not just the sentence that matters, but how long the offender spends in prison.
Via a statutory instrument that we introduced last year, and a clause that we will come to later in the Bill, we are ensuring that rapists spend longer in prison. Those sentenced to a standard determinate sentence of over seven years will now, for the first time, serve two thirds of their sentence in prison, not half, as was previously the case. It was wrong that rapists, when given a standard determinate sentence, served only half of it in prison. It is right that that is now two thirds, when the sentence is over seven years. The Bill goes further, moving the release back to two thirds of the sentence for those convicted of rape and given a standard determinate sentence of over four years, ensuring that rapists spend longer in prison.
I hope that gives the Committee a high level of assurance about the work that has been done already, is being done through the Bill and will be done in future in this critical area. We discussed that extensively in yesterday’s Opposition day debate, which the Lord Chancellor opened and I closed. Labour’s Front-Bench spokesman made the point, fairly and rightly, that rape conviction rates are too low and must get higher. The rape review, which I am told will be published in days not weeks, will propose decisive action to address that serious problem.
I hope that lays out the Government’s firm commitment on the issue and our track record historically—
No, I certainly was not planning to ignore the hon. Gentleman’s amendment. I was simply setting out the wider context and the work that the Government have done, are doing and will do.
I have a couple of things to say about the amendment. First, the offence it describes is obviously horrendous and very serious. It currently carries a mandatory sentence of life imprisonment. Where the murder involves sexual or sadistic conduct, the starting point for the tariff—the minimum term to be served in prison—is 30 years, so a very long time. It is important to note, however, that judges have the discretion to depart from that tariff where they see fit and, if necessary, increase it, including by giving a whole-life order. It is important to be clear that the law already allows for such an offence to receive a whole-life order where the judge thinks that appropriate.
Secondly, the amendment refers in particular to strangers. It would essentially move the tariff’s starting point from 30 years to a whole-life order, the maximum sentence being life in both cases—it would not change the maximum sentence—but it aims that change in minimum sentence only at cases where a stranger has perpetrated the abduction, sexual assault and murder. It strikes the Government as surprising that that distinction is drawn, because the crime described—abduction, sexual assault and murder—is as egregious and horrendous whether committed by a stranger or by someone known to the victim.
We have spoken a lot about the importance of combating domestic abuse and the appalling crimes of domestic violence. I suspect—the Minister for Safeguarding might help me here—that the offender is usually known to the victim rather than being a stranger. The Minister for Safeguarding is nodding. The majority of offenders in such cases will be known to the victim—they may even be the partner of the victim. The offences may even happen in a domestic setting—the very place where the victim is entitled to feel safest—where the perpetrator is someone whom the victim ought to be able to trust. However, those settings and offenders are excluded from the amendment, because it applies only to strangers. I submit to the Committee that those serious, terrible and horrendous offences are just as serious when committed by someone known to the victim as they are when committed by a stranger.
Obviously, I understand the spirit of the amendment, but it diminishes the seriousness of domestic murders, whereby the perpetrator is known to the victim, by omission, because they are not included. I suggest that for that reason, and because it is rightly already possible for a judge to give a whole life order in such circumstances, the amendment does not move us forward. In fact, it omits—I am sure it was by accident and not intentional—those domestic murders, abductions and sexual assaults, which are just as serious as when committed by a stranger. Although I am in complete sympathy with the shadow Minister and Front Benchers’ sentiments on this issue, I ask them to think about that particular element of the amendment as drafted.
I am grateful to the Minister for his response. It is very easy for us all to determine our own shopping list of changes to the legislation. I take his point that crime committed by somebody who is known to the victim is not any less severe than crime committed by someone who is not known to the victim. However, rather than dismiss what the Opposition are saying, perhaps the Government should say that there is an opportunity here to look at whole life orders and some of the wider aspects. Perhaps other cases should attract a whole life order. The Government have quite a tight group currently, and there is a need for that to be reviewed.
Given the specific things that have happened in recent times, the amendment is about sending a message to women and girls that we are on their side and that we recognise the difficulties that they often face. We recognise their fear of walking home in the evening, particularly if they are on their own. Although society needs to do more to tackle the causes of this type of crime, we should still go ahead with the amendment and ensure that there is a clear message to strangers, or anybody out there, that if they abduct, murder or sexually assault a woman, they will face the full weight of the law. For me, that means the mandatory whole life order, except in exceptional circumstances.
Minister, do you wish to come back? I saw you in discussions with another Minister, so I will give you the option. It is not normal to do this, but is there anything further that you would like to add in response?
I will just say that we are always happy to talk to the Opposition about a matter of this sensitivity, but I remain of the view that we should not single out murders involving a stranger and exclude domestic cases from the Bill, because that would diminish those equally appalling offences in which the victim is known to the offender. It may even be a partner; it may even have happened in her house—yet that is not in the amendment. I ask that we think again about putting it to a vote. I am happy to sit down with the shadow Minister to talk about the issue and about the whole life order question, but I repeat the point that I made earlier.
Clause 101 ordered to stand part of the Bill.
Whole life orders for young adult offenders in exceptional cases
Question proposed, That the clause stand part of the Bill.
Clause 102 relates to whole life orders, which we discussed fairly extensively a few moments ago. It will give judges the opportunity, in rare and exceptional cases, to use a whole life order on people who are convicted when they are aged between 18 and 20. At the moment, whole life orders can be imposed only on offenders aged 21 or over, but occasionally there are some very unusual cases in which offenders aged 18, 19 or 20 commit heinous offences and a whole life order might be appropriate. For example, an offence of murder, rape and abduction such as the shadow Minister described might be committed by someone aged 20. We think, as I hope the Opposition do, that the judge should be free to impose a whole life order; in fact, the shadow Minister himself made that case very compellingly a short while ago.
I will give an example in which a judge called for precisely that: the notorious, infamous case of Hashem Abedi, the brother of the Manchester Arena bomber. In sentencing him, the presiding judge, Mr Justice Baker, described the actions of the two bombers as
“atrocious crimes: large in their scale, deadly in their intent and appalling in their consequences.”
The judge said that he was satisfied that they had appeared to deliberately target the young audience in attendance at the arena’s Ariana Grande concert in order to heighten the risk of injury and death. He said in his sentencing remarks that
“If the defendant…had been aged 21 or over”
and if a whole life order had been available,
“the appropriate starting point…would have been a whole life order”,
given the seriousness of the crime.
I am sure that every member of the Committee, and indeed every Member of the House, will agree that for crimes as abhorrent as Hashem Abedi’s—murdering so many people in cold blood, many of them young—or in cases of the kind that the shadow Minister spoke about in our debate on clause 101, involving the murder, rape and abduction of a woman, where the offender is 19 or 20 years old, the whole life order should be available to the judge in those exceptional and thankfully rare circumstances.
I think that this extension to the whole life order regime is appropriate. On that basis, I urge that clause 102 stand part of the Bill.
I am getting a little confused now with some of the things that the Minister has said in relation to the last debate and the imposition of whole life orders. I assume that he was referring to the fact that judges have that flexibility rather than being compelled to impose such a sentence.
The shadow Minister is right. I was saying that, for the kind of offences that he described in the last debate, judges have the ability to impose a whole life order. For murders involving sexual assault and abduction, the starting point currently is a tariff of 30 years. However, the judge has the freedom to go up to a whole life order. But at the moment, the judge cannot do that if the offender is aged 18, 19 or 20. The clause will give judges that freedom.
I am grateful to the Minister for his clarification. As he said, clause 102 will allow judges to impose, in exceptional circumstances, a whole life order on offenders who were aged 18 to 20 when the offence was committed. Currently, a whole life order can be imposed only on offenders who were aged 21 or over when they committed the offence; we both recognise that. The court will be able to impose a whole life order
“only if it considers that the seriousness of the offence, or combination of offences, is exceptionally high even by the standard of offences”
that would normally attract a whole life order for an offender aged 21 or over.
I start by paying tribute to those who lost their lives on 22 May 2017 at the Manchester Arena. That evening was supposed to be one of fun. Instead, a truly wicked act claimed 22 innocent young lives and left many more lives shattered. As the Minister said, it is only right that Hashem Abedi received the longest sentence in history for his part in the atrocity that night. It is also right that he will spend the rest of his life in jail. Neither of those points has ever been in doubt.
Labour’s overarching commitment is to keeping the British public safe and to ensuring that horrific terrorist attacks such as the one at Manchester Arena cannot be repeated. For that reason, Labour will support the introduction of clause 102. We do, however, seek assurances that the Government will think carefully about their approach to young adults when making sentencing changes in the future.
As the Minister explained, since 2003 the law has provided that whole life orders can be handed down only to offenders who were aged 21 or over at the time of their offence. Clause 102 will make an exception to that rule, so that in exceptional circumstances whole life orders can be given to those who were aged 18 or over but under 21 at the time they committed their offence.
In its briefing on the Bill, the Sentencing Academy indicated that the inclusion of clause 102 seemed to be a response triggered by the trial of Hashem Abedi for his involvement in the Manchester Arena bombing. As many people will know, Hashem Abedi was the brother of Salman Ramadan Abedi and was found guilty of assisting his brother to order, stockpile and transport the deadly materials needed for the attack. In total, he was found guilty of 22 counts of murder, attempted murder and conspiring to cause explosions.
In his sentencing remarks, Mr Justice Jeremy Baker indicated that Hashem Abedi’s actions were so grave that if he had been aged 21 or over, he would have sentenced him to a whole life order. Given that Hashem was under the age of 21 at the time of his offences, the judge was precluded from sentencing him to a whole life order. Instead, he was sentenced to at least 55 years—the longest determinate sentence in British criminal history. Mr Justice Baker made it clear that Abedi would leave prison only if the Parole Board was convinced that he was no longer a risk to society. Even then, he would spend the remainder of his life on licence, with the risk of being recalled to prison. In all likelihood, he concluded, Abedi could expect to spend the rest of his life in prison.
This, to a certain extent, represents the first concern that the Opposition have about clause 102. If the current sentencing regime already allows courts to sentence someone to almost certainly spend the rest of their natural life behind bars, what does clause 102 actually add to the law? As Mr Justice Baker pointed out, the only way Hashem Abedi could conceivably be released from prison is if the Parole Board deemed him no longer to be a risk to society. I am sure that the Minister will agree that after committing such a heinous and fanatical crime, and while refusing to show any remorse for his actions, the chances of his being deemed safe to be released are close to zero. Moreover, given that he will be at least 78 years old before his minimum sentence comes to an end, the chances that he will die before appearing before the Parole Board are considerable.
The other reason why we have concerns in this area was neatly summed up by the Sentencing Academy, which pointed out that, since the current sentencing regime for murder came into force in 2003, the issue of a sentencing judge being prohibited from imposing a whole life order on someone aged 18 to 20 arose for the first time only in 2020. For the avoidance of any doubt, the event referred to in 2020 is that trial of Hashem Abedi.
I stress that point because the impact of clause 102 will be profound. Since the sentencing regime for whole life orders came into force in 2003, there has always been a safeguard that whole life orders should be applicable only to those who committed their offence aged 21 or older. Clause 102 seeks to weaken that safeguard, despite no evidence being shown since its imposition almost two decades ago that that is what judges are asking for. I ask the Minister to publish the evidence demonstrating that judges want this new sentencing provision, which will rarely, if ever, be used. Is there really a necessity for this change, which affects young adults?
This brings us to the root of the Opposition’s second concern about clause 102. While there is no question that Hashem Abedi deserves a whole life order for his atrocity, we must not let this one case blind us to the importance of understanding the age of maturity in other cases. The Minister will recollect our long discussions on this subject during the Counter-Terrorism and Sentencing Bill Committee. The same arguments apply to this Bill, and I cannot stress enough the need for the Government to consider maturity issues now too. During the past 20 years, there have been significant advances relating to the age of maturity, with scientific evidence now indicating that young adults are still developing their decision-making and impulse control skills well into their mid-20s.
The Prison Reform Trust states in its briefing notes that clause 102 will
“fly in the face of evidence on maturity which the government has previously accepted and promised to take into account in its policy concerning young adults in the criminal justice system. That evidence, supported by neurological studies, establishes that the development of maturity extends well beyond adolescence, and typically into a person’s mid-twenties…There has been no change in that evidence, nor, so far as we know, in the government’s wish to have regard to it.”
We must listen carefully to that criticism. The Prison Reform Trust is referring to the Government’s 2015 response to Lord Harris’s report into the deaths of 18 to 24-year-olds in custody, where the Government agreed that:
“It is widely recognised that young adults, particularly males, are still maturing until around 25 years of age.”
It is not only the Government who agree on that point; the Justice Committee also agrees that young adults are still maturing until the age of 25. As the Minister will know, how the criminal justice system responds to young adults has been subject to two separate inquiries by the Justice Committee, one of which reported as far back as October 2016, and one of which reported in June 2018. The Committee report of 2016, published almost 5 years ago, recommended that:
“Both age and maturity should be taken into significantly greater account within the criminal justice system”,
“the system…should presume that up to the age of 25 young adults are typically still maturing.”
The Committee went on to say there was
“overwhelming evidence that the criminal justice system does not adequately address the distinct needs of young adults”
and attacked the Government for a lack of action, adding that more victims will suffer crime unless the regime for dealing with young adult criminals is overhauled.
My questions to the Minister are quite simple. We accept that the most serious under-21 offenders, such as Hashem Abedi, deserve whole life orders. However, can the Government reassure the Committee that they still accept that young adults are still maturing until the age of 25, and that the justice system should take that properly into account when considering whole life orders for young adults? What safeguards will be put in place to ensure that such sentences are issued only in the most extreme cases, perhaps by seeking guidance from the Sentencing Council? Finally, will the Minister commit to report to Parliament each year on the application of this new sentence? As indicated earlier, we do not intend to stand in the way of this clause, but the Government need to move cautiously to ensure that they do not needlessly condemn people as young as 18 to death in prison. I look forward to the Minister’s response.
I will be brief in my reply. On the need for the sentence, we have already discussed the Abedi case. We have seen that, in his case, it is conceivable that the whole-life order might have made a difference. He would be eligible for Parole Board consideration at the age of 78. In that circumstance, a whole-life order would make a difference because, under one, such a consideration would not take place.
The shadow Minister said that such cases are very rare because, by definition, people who are 18, 19 or 20 have many years of life ahead of them. None the less, they occasionally occur, and it is important that we give judges the ability to deal with that. The fact that we have whole-life orders illustrates that there are limited circumstances in which they are appropriate.
I thought that there was a slight inconsistency in the shadow Minister’s arguments. On the previous clause, he argued for the expansion of whole-life orders, and on this clause—I know he will support it, so I do not want to push this too hard—he raised doubts about the appropriateness of the expansion of whole-life orders. It struck me that there was a slight tension in those arguments.
The Minister must not misunderstand or misinterpret what I was saying. We are fully supportive of what he is trying to achieve here, but we want to make sure the Government recognise that such orders should be used only in the most extreme cases, and maturity has to be an issue.
We do recognise that. The orders are intended to be used in exceptional circumstances. The phrase “exceptional circumstances” is well established and well known by judges and in law.
On the shadow Minister’s point about accounting for maturity more generally, of course judges take it into account at the point of sentencing. At about this time last year, during the passage of the Counter-Terrorism and Sentencing Act 2021, we discussed extensively the use of pre-sentence reports when someone who is just over the age of maturity but still maturing is sentenced. The fact is that pre-sentence reports can comment on maturity, and judges can take that into account.
I can give the shadow Minister the assurance he asked for. First, the Government are mindful of the issue generally, and, secondly, we expect this to be rare and exceptional. I have a great deal of confidence that the judiciary will apply the flexibility that we are providing in a way that reflects that. As the shadow Minister said, I would not expect the power to be used in very many circumstances, but where terrible cases arise, such as the appalling Abedi case, or a case in which a 19 or 20-year-old abducts, rapes and murders a woman, the whole-life order might be appropriate. It is right that judges have them available to use. I am glad to have the shadow Minister’s support on this clause.
Question put and agreed to.
Clause 102 accordingly ordered to stand part of the Bill.
Starting points for murder committed when under 18
Question proposed, That the clause stand part of the Bill.
We come now to the sentencing regime for children who commit murder. Thankfully, that is a very rare occurrence, but it does sadly happen. Clause 103 amends the sentencing code to replace the current 12-year tariff point for all children who commit murder, with a sliding scale of starting points. The sliding scale takes into account the age of the child and the seriousness of the offence. It means that the older the child and the more serious the murder, the higher the starting point.
Detention at Her Majesty’s pleasure is the mandatory life sentence for children who commit murder. Starting points are used by the judge to determine the minimum amount of time to be served in custody before the offender can be considered for release by the Parole Board. Judges can set a minimum term that is higher or lower than the starting point by taking into account aggravating or mitigating factors. Rather than having a flat 12-year starting point, as we have at the moment, which does not account for the age of the child—it could be 12 or 17—or the relative seriousness of the offence, instead we will have a sliding scale based on a more nuanced system.
The new starting points represent the approximate percentages of the equivalent sentence for an adult, which of course reflects the seriousness of the particular offence. If the child who has been convicted of murder is aged between 10 and 14, the tariff—the minimum amount to be served—will be set at half the adult equivalent. If they are 15 or 16 years old, it will be set at 66%, and if they are 17 years old—almost an adult but not quite—it will be set at 90%.
The introduction of this sliding scale recognises that children go through different stages of development and that a child of 17 is manifestly different from a child of 10. It seeks to reduce the gap in starting points between someone who is 17 versus someone who is 18, say, but increase it when the person is a lot younger. By linking it to the equivalent sentence for the same offence committed by an adult, it also seeks to reflect the different levels of seriousness that might apply.
This is a sensible and proportionate measure that reflects both age and seriousness. That is not currently reflected in the starting point, and we have to rely wholly on judicial discretion to correct that. This measure makes the provision a little more predictable and transparent, so that everyone can see how the system works.
On 3 May 2019, Ellie Gould was murdered by her former boyfriend in the kitchen of her family home. She was strangled, and stabbed 13 times, in a brutal and frenzied attack. She was only 17 years old and was looking forward to university. Her whole life should have been ahead of her, but it was snatched away in the most horrendous way imaginable.
When Ellie’s former boyfriend was sentenced for his appalling crime, he received only 12 and a half years in prison, meaning he could be eligible for parole before his 30th birthday. If he had committed his crime a year later, after he had turned 18, he could have received a much longer sentence. As a dad and a grandad, I can only imagine the enormous life-changing pain of having a child taken away in such appalling circumstances, while knowing that the perpetrator will be released within a relatively short period.
On behalf of the Opposition and, I am sure, of the whole Committee, I praise the enormous fortitude and dignity that Carole Gould has shown amid such horrendous loss. It is thanks to her tireless campaigning for Ellie’s law that we are discussing the clause. As my right hon. Friend the Member for Tottenham made clear in the Chamber some time ago, there is no doubt that Thomas Griffiths received too short a sentence for the crime he committed, and Labour stands firmly behind the Gould family.
As the Minister pointed out, under the current sentencing framework, if a child commits murder before they turn 18, they are sentenced to detention at Her Majesty’s pleasure, with a starting point of 12 years, as opposed to the starting point of life imprisonment for an adult found guilty of the same offence. As such, the way that starting points are currently calculated means that a 17-year-old who, like Thomas Griffiths, commits murder, can receive a much shorter tariff than someone who has just turned 18, even if the crime is more serious.
Clause 103 would rectify that by replacing the 12-year starting point with a sliding scale of different starting points based on the age of the child, as the Minister outlined. The aim is to ensure that sentences given to children who commit murder are closely aligned to the sentences handed down to adults who commit the same offence.
As I set out at some length during the debate on clause 102, the Opposition are naturally cautious when it comes to the age of maturity and increasing the sentencing regime that applies to children. As I have said, that concern is held not only by the Opposition, but by the Justice Committee, which set out unequivocally that:
“Both age and maturity should be taken into significantly greater account within the criminal justice system.”
None the less, as I have said in the past, the Opposition are also pragmatic and recognise that on some occasions, such as the death of Ellie Gould, the sentences that are currently available do not properly reflect the severity of the offence committed.
As Carole Gould has described so movingly, the families of victims of these atrocious crimes often feel that they have faced two gross injustices: first, when the act is carried out, and secondly, when the sentence is delivered. Labour agrees with the Government that in the darkest days of grief, it is deeply unfair that the families of victims feel that they have been cheated of justice when a perpetrator receives a far shorter sentence because of an age difference of a matter of weeks or months.
That is why we, along with the Gould family, were quite appalled when the sentencing White Paper was published with proposals that would have seen Thomas Griffiths receive an even lighter sentence of only 10 years. I am glad that the Government have now seen sense and corrected that point, but not before Labour brought the anomaly to the Government’s attention back in October last year. Labour will support the Government on clause 103 today, but we feel that much more could be done in this area.
As Carole Gould has pointed out, clause 103 deals with the issue of older children being sentenced in a way that is closer to young adults. Another important issue, however, remains to be resolved: the sentencing gap which exists between those who murder within the domestic home and those who murder a stranger in the street. The point made by Carole is a poignant one:
“Why should a life taken in the home by someone you know be valued less than a life taken by a stranger in the streets?”
For example, even under the proposals set out in the Bill, a child aged 10 to 14 who commits murder and does so after taking a weapon to the scene—such as a public place—would be liable to a minimum of 13 years’ imprisonment. On the other hand, if a child of the same age committed murder and used a weapon found at the scene—as in the case of Thomas Griffiths, who used a kitchen knife to carry out his terrible crime—the minimum sentence would be eight years. That is a huge difference of five years.
Joe Atkinson was 25 when he murdered his 24-year-old ex-girlfriend in a jealous rage, causing her more than 100 injuries, including 49 knife injuries and 23 separate stab wounds all over her body. For those who take a knife or weapon to the scene, such as those who stab someone to death on the street, the normal starting point for sentencing is 25 years. Joe Atkinson, however, was sentenced to just 16 years and two months. That was, in part, because the murder was committed using a weapon found in the victim’s home.
We of course understand the concept of premeditation, which has been a key part of the law since time immemorial, but we must ask ourselves as parliamentarians whether that sentencing gap is right or proportionate. That is why the Opposition tabled new clause 24, which would require the Government to commission an independent review into the effectiveness of current legislation and sentencing policy on domestic homicide. In particular, such a review would consider:
“trends in the incidences and types of domestic abuse, with a focus on domestic homicide,…sentencing policy as it applies to domestic abuse, with a focus on domestic homicide,…current sentencing guidelines as they relate to domestic abuse, with a focus on domestic homicide, and…the creation of new defences and/or mitigating circumstances to protect victims of domestic abuse who commit offences as a consequence of that abuse.”
We will have the opportunity to debate new clause 24 in detail in the weeks to come, but I hope that the Minister will accept today that, although clause 103 is welcome, it does not represent a quick fix to the endemic levels of domestic homicide that we see today. Time and time again, we hear the most tragic stories, often of violent men who murder their partners in their own homes and receive a lesser sentence either as a result of not taking a weapon to the scene, or by claiming diminished responsibly.
I hope that the Minister will agree that those are serious issues that deserve serious scrutiny. With that in mind and in the spirit of cross-party co-operation, as we support the clause, I hope that next week or perhaps the week after the Minister will support our new clause 24.
Question put and agreed to.
Clause 103 accordingly ordered to stand part of the Bill.
Sentences of detention during Her Majesty’s pleasure: review of minimum term
I beg to move amendment 131, in clause 104, page 89, line 1, leave out “18” and insert “26”.
This amendment would make provision for minimum term reviews for those who are serving a sentence of detention at Her Majesty’s pleasure to continue to take place up to the age of 26.
As has been pointed out, the purpose of the clause is to alter the way in which sentence reviews are conducted for those serving detention at Her Majesty’s pleasure. As the law stands, a child sentenced to detention at Her Majesty’s pleasure may apply to the High Court to seek a review of their sentence once they have reached the halfway point of the sentence. The purpose of the review is to establish whether the offender has made sufficient progress while in prison for their sentence to be reconsidered. If the offender’s application for a review is unsuccessful, he or she may make a further application every two years until the sentence comes to an end.
The effect of the clause is twofold: first, those who have reached the age of 18 at the time of sentencing will no longer be entitled to a review of their sentence. Secondly, those who are entitled to reviews—in other words, those who were sentenced when a child—will be restricted to a single review at the halfway point and, if they have reached the age of 18 by that stage, they will be entitled to no further reviews.
In their White Paper, the Government set out that the intention behind clause 104 was to spare victims’ families the trauma of having to continually revisit the events that led to the loss of their loved one each time an offender applies for a review. Although we sympathise wholeheartedly with that sentiment, we are also mindful of the need to balance it with the right of young offenders to have their sentence reviewed in the light of good behaviour while in prison.
The Opposition’s first major concern with clause 104 is that we believe that those who commit an offence as a child should be treated as a child by the criminal justice system, irrespective of whether they turn 18 by the time they are sentenced. That view is widely held by stakeholders across the justice sector, as well as by Members across the House. As the Minister will be aware, the hon. Member for Aylesbury (Rob Butler) has promoted a ten-minute rule Bill to achieve just that.
The Labour party is clear that no child should be put at a disadvantage by turning 18 before being sentenced, especially if the delay has been caused by the record-breaking court backlog. That concern is shared by the Sentencing Academy, which notes:
“We have grave concerns about the removal of reviews from people simply because they have reached the age of 18 at the time of sentencing—particularly at a time when cases are taking so long to reach court due to the backlog of cases that has been exacerbated by the pandemic.”
Obviously, delays are not particularly satisfactory for anybody, particularly in the criminal justice system. Long delays are not fair for victims, either, or for young people. As the maxim says, justice delayed is justice denied. Does my hon. Friend agree that the criminal justice system needs more investment so that things are speeded up and young people do not end up being sentenced as adults?
I understand exactly what my hon. Friend is saying. However, I know from discussions with the Lord Chancellor that he is very shy about addressing the issue of people receiving an adult sentence for crimes committed under the age of 18 because their case did not get to court until after they had turned 18. He does not appear to have any sympathy for that. I hope that over time we can work with the Government on what happens to children who commit crimes. They should not be disadvantaged by not having their case heard until they become an adult.
The concept of basing minimum term reviews on age at sentencing, rather than on age at the time the crime was committed, has also been rejected by the courts as contrary to the purpose and rationale of the sentence of detention at Her Majesty’s pleasure. As the great Lord Bingham set out in the case of Smith:
“The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation.”
With that in mind, what guarantees can the Minister provide that no child will be put at a disadvantage because of court delays caused by the huge backlog that has accrued on the Conservative Government’s watch? Similarly, does he agree that it would be hugely unfair for children to be worse off because of something completely out of their control?
The Opposition’s second concern with clause 104 is the cliff edge created by the offender turning 18. As I set out at some length during our discussion of clause 102, the Opposition are very mindful of the significant advances made during the past 20 years relating to the age of maturity. As the Minister is all too aware, it is now widely recognised that young adults are still developing their decision making and impulse control skills well into their mid-20s. As I have said before, that is acknowledged not just by the Opposition but by the Justice Committee, neuroscientists, criminologists and, until recently, this very Government. It is somewhat disappointing, then, that the Government have chosen to create a cliff edge whereby anyone who turns 18 suddenly loses the right to have the High Court review their sentence.
That concern is shared by the Sentencing Academy, which points out:
“The accompanying ‘factsheet’ justifies removing reviews from those aged 18 by the time of sentencing on the grounds that: ‘This is because their age and maturity will have been taken into account at their sentencing’. However, it is an accepted feature of sentencing law that the passing of an offender’s 18th birthday is not a cliff edge in terms of their emotional and developmental maturity.”
I must therefore ask the Minister why, when the Government have previously accepted that
“the system…should presume that up to the age of 25 young adults are typically still maturing”,
they have chosen to create this cliff edge at the age of 18. Not only does this seem unfair; it also seems counterproductive. By removing an offender’s right to a review of their sentence based on good behaviour, the Government are also removing any incentive for that offender to behave well in prison. As the Howard League points out, minimum term reviews are infrequent but important, as they
“offer a rare source of hope and can powerfully motivate young people to make and maintain positive change.”
The Sentencing Academy points out that since 2010 fewer than 10% of offenders serving detention at Her Majesty’s pleasure applied for a second review of their sentence. It says of the proposed change:
“this restriction will merely remove the opportunity of review from a small handful of cases in which exceptional progress has been achieved after the halfway point in the sentence”.
Is the Minister not worried that by removing the right to these reviews, he could be putting overworked prison staff at increased risk of harm?
Although we sympathise with the stated goal that the Government are seeking to achieve through clause 104—to prevent unnecessary distress to the families of victims of crime—in its present form we are unable to support it. Instead, we have tabled amendment 131, which we believe balances the need to protect the families of victims of crime from distress with preserving the rehabilitative benefits of being able to request a sentence review. The mechanics of the amendment are simple. Instead of ending the right to a sentence review at the age of 18, the amendment would make provision for minimum term reviews up to the age of 26, reflecting the widely held view that young adults are still developing in maturity well into their twenties, while also providing a powerful incentive to motivate young offenders to reform and rehabilitate while in custody.
I look forward to hearing the Minister’s response.
Once again, the shadow Minister has helpfully laid out the context and the background to the clause. I will not irritate or detain the Committee—or perhaps both—by repeating the information that he has given.
These reviews provide an opportunity to look again at the minimum term handed down, but it is important to remember that we are talking about a cohort of people who have committed a very serious offence: murder. As the shadow Minister said, when sentence is first passed on a child, the judge passing the sentence will include in their consideration the maturity of the person at that point. There is an acceptance that further maturing may occur subsequently, which is why the review mechanism exists. Even with the reform proposed in clause 104 there can still be a single review once the individual is over 18; it is only subsequent reviews—a second, third or fourth review—that the clause would preclude. Given the likely length of sentences or of minimum terms, as well as the fact that most people receiving a first sentence will probably be in their mid or late teens, it is very likely that in almost all cases there will be one review after the age of 18. We are simply precluding those further reviews.
The shadow Minister says the clause might affect incentives. Once the minimum term has been reached, whether it has been reduced or not reduced, the Parole Board still has to consider whether release is appropriate, so even if the minimum term is not reduced, there is still an incentive to behave in prison and to engage in rehabilitation and so on, in the hope of getting the Parole Board release once the minimum term has been reached. So I do not accept the argument that the clause changes the incentives to behave well in prison.
On the point about people maturing beyond the age of 18, for first sentences, that is reflected in the sentence passed by the judge, informed by pre-sentencing reports. As I have said previously, the law as we propose to amend it will still allow—most likely in almost every case, or very many cases—a single review after the age of 18. That is analogous to the judge, when sentencing someone for the first time at the age of 20, 21 or 22, or even slightly older, taking into account maturity at the point of sentencing.
What we do not want is people having multiple bites of the cherry. We do not get that in ordinary sentencing: when someone who is 21 is sentenced, they get sentenced once at the age they happen to be, taking into account their maturity at that point—just over the age of 18. The clause effectively allows for a similar principle to take effect: most likely a single review, probably after the age of 18. It is quite unlikely that somebody would qualify for a first review under the age of 18, given how long most of these minimum terms are likely to be. It is conceivable that somebody might have a minimum term review under the age of 18 and not be eligible for another one subsequently, but my estimation is that that would only apply in a small minority of cases. As such, I think that single review after the age of 18, which is the most likely scenario, is appropriate.
To use the shadow Minister’s example, having four or five reviews between the ages of 18 and 26 is excessive. It does not strike the right balance between taking into account the process of maturation and the distress that may be caused to the victim—or rather the victim’s family, since we are talking about murder—by repeated reconsiderations every two years once the offender is over 18. Respectfully, I think that the clause as written strikes that right balance.
I am sorry, but I do not accept the Minister’s argument. He himself talked about the small number of applications under the existing system, but he is choosing to remove that opportunity for all, with the exception of the one opportunity. I refer him again to the quote from the Sentencing Academy:
“We have grave concerns about the removal of reviews from people simply because they have reached the age of 18 at the time of sentencing—particularly at a time when cases are taking so long to reach court”.
The very fact that young people can be denied further reviews because they have reached the age of 18, and their case has not reached court through no fault of their own, is deeply unfair. For that reason, I will push the amendment to a Division.
Question put, That the amendment be made.
Clause 104 ordered to stand part of the Bill.
Life sentence not fixed by law: minimum term
Question proposed, That the clause stand part of the Bill.
The clause will increase the amount of time that an offender sentenced to a discretionary life sentence will be required to serve in custody before they can be considered for release. A discretionary life sentence can be imposed for any offence that has a maximum period of life where the court believes that the high seriousness of the offending is such that a life sentence should be imposed, rather than a lesser determinate sentence. Such offences include manslaughter, rape, and grievous bodily harm with intent.
When imposing such a sentence, the court must set a minimum term, or tariff, that must be served in full in custody before the prisoner can be considered for release by the Parole Board. At present, when setting a discretionary life tariff, the sentencing judge will identify a notional determinate sentence that reflects the seriousness of the offence as well as time spent in custody on remand and the early release provisions that apply to that notional determinate sentence in order to calculate the tariff. In practice, the standard approach applied by the court is to decide what the notional determinate sentence would be for the offence committed and then calculate the tariff based on half that notional determinate sentence, reflecting the release provision requiring automatic release at the halfway point for prisoners sentenced to a standard determinate sentence.
That is no longer fit for purpose, because the Government have legislated to remove automatic halfway release for serious sexual and violent offenders serving a standard determinate sentence of seven years or more. In fact the next clause, 106, will extend that principle further to many standard determinate sentences of four years or more. That means—anomalously—that the most serious offenders given a standard determinate sentence will serve longer in prison and be released only after serving two thirds of their sentence, but the people I have just described with a discretionary life sentence will not. The Government’s proposal will align the automatic release point for serious offenders serving standard determinate sentences with the earliest possible point at which the Parole Board may direct release for those serving sentences of particular concern or extended determinate sentences, namely two thirds of the custodial term of such sentences.
For the most serious terrorist offences, through the Counter-Terrorism and Sentencing Act 2021 we brought in new provisions meaning that offenders must serve their custodial term in full. The clause will ensure that the approach to release for those serving determinate sentences for serious offences is reflected in the way in which minimum terms for those serving discretionary life sentences are calculated. They will be brought into alignment, avoiding any anomalies. Judges will, of course, retain discretion to depart from the starting point as they consider appropriate in the cases before them.
The clause will bring discretionary life sentences into line with the broader approach for dangerous offenders, so that the most serious offenders will serve longer in prison before they become eligible to be considered for release by the Parole Board, thereby ensuring that the punishment better reflects the severity of the crime. In effect, it introduces consistency between the discretionary life sentences release provisions and those we introduced in the Counter-Terrorism and Sentencing Act this year, which we are expanding in the Bill. It is a measure that brings consistency and keeps serious offenders in prison for longer. I therefore hope that the Committee will agree to the clause standing part of the Bill.
As the Minister said, the clause will change the way in which the minimum terms of discretionary life sentences are calculated. As the law currently stands, and has stood for quite some time, discretionary life sentences are calculated at one half of what the equivalent determinate sentence would be. The clause enacts a proposal in the sentencing White Paper to change the way in which life sentences are calculated, so that they are based on two thirds of the equivalent determinate sentence rather than one half.
The Government’s rationale is set out in the explanatory notes accompanying the Bill, which say:
“This change is necessary because most serious violent and sexual offenders who receive determinate sentences—including those who may receive an extended determinate sentence—are required to serve two-thirds of their custodial term before they may be released.”
That refers, of course, to other recent changes to release arrangements that mean that certain categories of offender must now serve two thirds of their sentence, rather than half, before they can be released.
Like the previous sentencing changes, the clause will make an already complicated sentencing regime even more complex by changing the way in which sentences have long been calculated. It is somewhat ironic that the Government on the one hand claim to want to make sentencing simpler, and on the other hand make a series of reforms that do the exact opposite. I will develop that point in more detail when we come to clause 106, but let me give a broad overview of what I mean.
In advance of the publication of the sentencing White Paper in September 2020, the Lord Chancellor set out in a column for The Times—sorry, for the The Sun on Sunday, which is quite a different paper—that
“Sentences are too complicated and often confusing to the public—the very people they are supposed to protect.”
The Lord Chancellor returns to this point in his foreword to the White Paper, stating that
“The system we have today can be complex and is too often ineffectual. Victims and the public often find it difficult to understand, and have little faith that sentences are imposed with their safety sufficiently in mind. The courts can find it cumbersome and difficult to navigate, with judges’ hands too often tied in passing sentences that seem to make little sense. The new Sentencing Code is a good start in tidying up the system, however we must be mindful not just of how sentences are handed down, but also how they are put into effect.”
The Opposition agree wholeheartedly with the Lord Chancellor’s sentiment, which is why we welcome the new sentencing code with open arms and why we are a bit puzzled by some of the measures in the Bill.
I am not from a legal background, so perhaps I am missing something here. Can the Minister explain in simple terms how the myriad changes to release arrangements for certain offences will make sentencing simpler, rather than more complicated? If the Government’s objective is to keep dangerous offenders in prison for longer, why do they not simply legislate for longer custodial sentences, rather than moving the date at which prisoners are either automatically released or released by the Parole Board? Not only would it be a simpler approach, but it would ensure that offenders still serve 50% of their sentence in the community, which we know will significantly reduce their risk of reoffending. Again, this a point that I will draw on further when discussing the next clause.
The other concern we have about clause 105 is that it fails to recognise the fundamental difference between discretionary life sentences and determinate sentences. As the Howard League sets out in its briefing:
“In contrast with the determinate serious sentences, a person serving a discretionary life sentence will be liable to detention until the day he or she dies and there is no automatic release date. The blanket increase in the punitive period therefore cannot be grounded in protecting the public as that is covered by the jurisdiction of the Parole Board: it is simply a hike in the punitiveness and there is no evidence to justify this in terms of reducing long-term harm or increasing public safety.”
In other words, the Government cannot rely on the rationale that clause 105 and the extension in the way discretionary life sentences are calculated is for the purposes of public protection.
When discretionary life sentences are handed down, the offender knows that he or she will be released from prison only if the Parole Board considers it safe to do so. This is a decision made by the Parole Board, regardless of whether it is taken at the halfway point or two-thirds point of a sentence. Instead, we are inclined to agree with the Sentencing Academy, which suggests the clause is all about
“solving a problem of the Government’s own making”
as a result of previous changes to the point of automatic early release.
To wrap up, the Opposition are concerned that the clause will make an already overcomplicated sentencing regime even more complicated, contrary to the Government’s desire for simpler system. It will also have no impact at all on the decisions made by the Parole Board, which remains the ultimate decision maker as to when somebody on a discretionary life sentence is safe to be released. For those reasons, we cannot support the clause.
Question proposed, That the clause stand part of the Bill.
Clause 105 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Adjourned till Tuesday 15 June at twenty-five minutes past Nine o’clock.
Written evidence to be reported to the House
PCSCB34 Suzy Lamplugh Trust
PCSCB35 Helen Stephenson CBE, Chief Executive Officer, Charity Commission for England and Wales
PCSCB36 Youth Justice Board for England and Wales