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Police, Crime, Sentencing and Courts Bill

Volume 817: debated on Wednesday 15 December 2021

Report (3rd Day)

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

Clause 96: Code of practice

Amendment 66B

Moved by

66B: Clause 96, page 85, line 31, at end insert—

“(2A) The code must provide for reviews to be made or other measures taken by the Secretary of State on a regular basis to ensure—(a) compliance with the provisions in the code of practice as to the giving of discretionary and community cautions, and(b) the consistency of application of the code of practice as between different police forces or Crown Prosecution Areas.”Member’s explanatory statement

The purpose of the amendment is to make provision for regular reviews or other measures to ensure compliance with the Code and consistency of practice across England and Wales.

My Lords, when the Bill seeks to put the cautions regime on to a statutory basis, it is plainly a very important step forward. Although I welcome it, it is unfortunate that this is being done largely by secondary legislation—an issue obviously addressed in many other contexts, about which I do not wish to speak today.

However, it is clear that even in this skeletal Bill, one critical issue is omitted—addressing the issue of lack of adherence to practice and lack of consistency. I outlined the powerful evidence of this in earlier debates and suggested a solution. That is needed because of the significant evidence that cautions can blight the lives of others and, as cautions are in effect part of the sentencing system, they must reflect transparency and command public confidence.

It was, however, evident from the speech of the Minister in Committee that the need to deal with this is recognised as an issue. He said that

“scrutiny and monitoring of out-of-court disposals is vital to successful implementation, accountability and public perception.—[Official Report, 8/11/21; col.1576.]

The Government did not like the way in which I suggested that this be done in the amendment that was before the Committee, but the Minister has very helpfully discussed the issue. The amendment now before the House very much leaves the means to ensure consistency and adherence to the code to the Secretary of State but reflects the principle of the necessity of scrutiny for consistency and adherence to principle. I look forward to the Minister explaining what Her Majesty’s Government intend to do in relation to consistency and how, in due course, the House can review the details of that.

My Lords, I have Amendments 66C and 66D in this group and will speak to Amendment 66B, but I will take them in reverse order if noble Lords will bear with me.

Currently, first-time offenders can be given a fixed penalty notice—an on-the-spot fine—by the police for a range of offences of disorder including dropping litter, being drunk and disorderly, and the possession of cannabis or khat. This Bill removes fixed penalties for disorder, so if the police want to enforce the law they will have either to arrest those responsible, taking up valuable police resources that should be spent on more serious crimes, or to take no action, leading to an increase in anti-social behaviour. Amendment 66D would retain fixed penalties for disorder.

Currently, first-time offenders can be given a simple caution, where the salutary effect of being found out, arrested and taken to a police station is, in most cases, enough to ensure that they behave themselves in future. It is quick, simple and effective. This Bill removes simple cautions, so if the police want to enforce the law they will have to impose conditions on everyone they caution, including considering whether to impose restrictive conditions, unpaid work conditions, attendance conditions and/or a fine. The police must also consider the views of any victim, including imposing any conditions that the victim or victims suggest. Compliance with conditions must then be monitored and action taken for any breach.

There is no evidence that the existing system of conditional cautions is any more effective than simple cautions, and conditional cautions, of which diversionary and community cautions are a more complex and complicated version, take far more police and other agencies’ time. Can the Minister explain why the Government are getting rid of simple cautions? If the answer is that, given the choice between the bureaucratic nightmare of imposing conditions and a simple caution, the police choose the latter, I have to tell the Minister that, faced with the bureaucratic nightmare of imposing conditions, the police will either release the accused with no further action being taken, allowing the accused to get away with it, or argue that the accused should be charged and sent to court. In fact, I wholeheartedly recommend to the police that, in every case where a diversionary or community caution is being considered, they refer the case to the CPS so that independent prosecutors can advise, not least on the sentence—or, as the Bill calls them, the conditions—the police intend to impose on the accused.

The police want to retain simple cautions. We want to retain simple cautions. Amendment 66C would retain simple cautions. I must say, the Minster has his work cut out to convince me not to divide the House on this issue.

As the noble and learned Lord, Lord Thomas of Cwmgiedd, ably explained, the amendment in his name aims to try to ensure compliance with the code of practice and consistency of application of the code. Academic research into the existing system of conditional cautions is of mainly inappropriate and inconsistent conditions being imposed. I referred to this in detail in Committee. It was not challenged; the House can therefore take it as fact.

The problem with these sorts of problems in the courts has been addressed by sentencing guidelines and the ability to appeal. We need something similar here because the police will, in effect, be deciding whether to enforce the law, whether the accused is guilty of the offence, and the sentence to be imposed, all behind closed doors. The principle of open justice is being undermined by this Government through these changes. Can the Minister confirm whether, unlike now, records will be kept of the numbers of each type of caution administered, and the types of conditions imposed?

It is quite extraordinary that the police are being given the power to be judge, jury and executioner, when, to date, the Government do not know how many conditional cautions have been administered or what sorts of conditions the police have been imposing. Amendment 66B is the least we can do to exert at least some control over what will be the reverse of open justice.

My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.

The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.

I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.

It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

My Lords, I thank all who participated in this debate. I will deal very briefly with the two points that have arisen.

First, the system to ensure consistency and compliance with the code will apply to whatever system is brought into effect, including the conditional cautions or fixed penalty notices. I am very grateful to the Minister for his statement, and it seems to me there is now a proper basis for going forward. I think it is fair to say that, when fixed penalty notices and cautions came to be used much more frequently, attempts were made by the judiciary from about 2005 onwards—therefore spanning both Governments—to try and put in place such a system. I am afraid we did not get very far, but it is encouraging to know the Minister is now behind this.

I hope for two things. One is for us to go forwards, as the noble Lord, Lord Ponsonby of Shulbrede, has said, with the magistrates doing matters locally, and I hope the MA will positively engage. The other is for a national basis. National consistency is important, because to the man on the Clapham omnibus—or whatever the modern phrase is—whether you get required to do something by the court or by the police, it is still part of the same system and it is still the law that requires it. Therefore, I look forward very much to scrutinising, when this comes back, the proposals put forward by the Government in the code.

As to the second part, I am again grateful to all who have taken part. If I may respectfully say so, I think there is a certain lack of wisdom in getting rid, without an adequate evidence base, of something that has been as useful in the past as a simple caution. However, I beg leave to withdraw the first amendment.

Amendment 66B withdrawn.

Clause 98: Abolition of other cautions and out-of-court disposals

Amendment 66C

Moved by

66C: Clause 98, page 86, line 26, at beginning insert “Except for a simple caution,”

Member’s explanatory statement

This amendment would retain the use of the simple caution.

Amendment 66D not moved.

Clause 100: Regulations under Part 6

Amendments 67 and 68

Moved by

67: Clause 100, page 87, line 11, leave out from “90(8)” to end of line 12

Member’s explanatory statement

This amendment provides for regulations under Clauses 81(8) and 90(8) to be subject to the affirmative procedure whether they increase or decrease the maximum number of hours a person may be required to work or attend at a place pursuant to a caution.

68: Clause 100, page 87, line 15, after “increase” insert “or decrease”

Member’s explanatory statement

This amendment provides for regulations under Clauses 82(3) and 91(3) to be subject to the affirmative procedure if they increase or decrease the maximum amount of a financial penalty pursuant to a caution by more than is necessary to reflect changes in the value of money.

Amendments 67 and 68 agreed.

Amendment 69

Moved by

69: Before Clause 102, insert the following new Clause—

“Penalty for cruelty to children

(1) In section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), in subsection (1)(a) (penalty on conviction on indictment), for “ten” substitute “14”.(2) Subsection (1) applies only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement

This amendment increases the penalty under section 1(1)(a) of the Children and Young Persons Act 1933 to 14 years.

My Lords, these amendments follow a discussion in Committee and an undertaking given on Report in the other place in response to amendments tabled by Tom Tugendhat MP, with cross party-support, which sought to raise the maximum penalties for child cruelty offences. We said at that time that we would bring forward proposals for reform as soon as possible.

I pay tribute to Tom Tugendhat and the family of his young constituent, Tony Hudgell, who have campaigned tirelessly for these changes to the law in his name. As a baby, Tony was abused to such an extent by his birth parents that he is now severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them most. Therefore, it is right to ensure that, in such cases, the punishment fits the crime. I should add that today saw the sentencing of those involved in the tragic death of Star Hobson. I offer my and the Government’s sincere condolences to Star’s friends and family. The violent death of a child as young as Star really is heart-breaking.

Government Amendments 69 and 70 amend Section 1 of the Children and Young Persons Act 1933 and Section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively to increase the maximum penalties in three circumstances. Those for cruelty to a person under 16 rise from 10 years’ imprisonment to 14 years’ imprisonment; those for causing or allowing the death of a child or vulnerable adult rise from 14 years’ imprisonment to life imprisonment; and, finally, those for causing or allowing a child or vulnerable adult to suffer serious physical harm rise from 10 years’ imprisonment to 14 years’ imprisonment.

Government Amendment 70 also adds the offence of causing or allowing the death of a child or vulnerable adult to Schedule 19 to the Sentencing Act 2020. This is a consequential amendment of Schedule 19 which lists offences where the penalty may be life imprisonment. It means that, if the judge determines that the offender is dangerous and the circumstances of the offence are sufficiently serious, the offender must receive a life sentence. Furthermore, a consequence of increasing the maximum penalty for causing or allowing the death of a child or vulnerable adult to life imprisonment is that offenders sentenced to seven years or more for that offence will now spend two-thirds, rather than half, of the sentence in custody.

I am confident that the House will agree, especially in light of the recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available—I underline that these are new maximum sentences—to deal appropriately with those who abuse children and vulnerable persons. I therefore beg to move Amendment 69.

My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.

A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.

There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

My Lords, we also support these amendments. There has been a ghastly spate of tragic cases of cruelty to children, both those mentioned by the Minister and others. We agree that increasing the maximum sentence from 10 years to 14 in cases of serious harm, and from 14 years to life in the case of death, is both acceptable and to be supported.

Along with the noble Baroness, Lady Jones, we note that the proposals in the government amendments, as the noble Lord, Lord Wolfson, has fairly pointed out, are for an increase in the maximum sentences, and there is no proposal for a mandatory minimum sentence. Nor is there any proposal for a judge to find exceptional circumstances before departing from a minimum, as was the case with the “Harper’s law” amendment to the Bill, made by the Government earlier in these proceedings, and as there is in the proposals to be discussed in the next group.

We agree with the Government that the offences targeted by these amendments are of the most grievous kind. We fully understand that the severity of the proposed penalties is warranted, and we therefore support the amendments.

My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.

However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

My Lords, I am grateful to all those who have contributed to this debate. I will pick up the point just made by the noble Baroness, Lady Chapman of Darlington. There has indeed been cross-party support on this point in your Lordships’ House, as there was in the other place, and I am grateful to her and the noble Lord, Lord Marks of Henley-on-Thames, for that. I therefore will not shatter the mood of consensus by descending into a debate on early intervention, save to say that I too agree that early intervention is important. I will pass her remarks on to my colleagues and I am sure we will continue that debate at another time.

For today, it is important to preserve that consensus. There is a mood across the House that these amendments are important, for the reasons given by all speakers. I was particularly grateful to have the support—perhaps unusually, if I may say so—of the noble Baroness, Lady Jones of Moulsecoomb, which shows that this issue is a cross-party, and perhaps even a non-party, issue. With those thanks, I commend the amendments to the House.

Amendment 69 agreed.

Amendment 70

Moved by

70: Before Clause 102, insert the following new Clause—

“Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm

(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious harm) is amended in accordance with subsections (2) and (3).(2) In subsection (7) (penalty in the case of a person’s death), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(3) In subsection (8) (penalty in the case of serious physical harm), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(4) Subsections (2) and (3) apply only in relation to offences where the unlawful act to which the offence relates is an act that occurs, or so much of such an act as occurs, on or after the day on which this section comes into force.(5) In Schedule 19 to the Sentencing Code (list of certain specified offences carrying maximum sentence on indictment of imprisonment for life), after paragraph 20 insert—“Domestic Violence, Crime and Victims Act 200420A(1) An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that meets the conditions in sub-paragraph (2). (2) The conditions are that—(a) the unlawful act to which the offence relates was an act that occurred, or so much of an act as occurred, on or after the day on which section (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm) of the Police, Crime, Sentencing and Courts Act 2021 came into force, and(b) the offender is liable on conviction on indictment to imprisonment for life.””Member’s explanatory statement

This amendment increases, for England and Wales, the penalties under section 5(7) and (8) of the Domestic Violence, Crime and Victims Act 2004 to life (if a person dies) or 14 years (if a person suffers serious physical harm). The amendment includes a consequential amendment of Schedule 19 to the Sentencing Code, which lists offences where the penalty may be imprisonment for life.

Amendment 70 agreed.

Clause 102: Minimum sentences for particular offences

Amendment 71

Moved by

71: Clause 102, page 88, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”

Member’s explanatory statement

This amendment, along with Lord Marks’ amendment to page 88, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.

These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.

I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.

The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.

Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.

The Minister has argued, and I suspect will argue again, that Parliament has the power to legislate for more severe sentences and that judges are obliged to sentence in accordance with the legislation that Parliament passes. That, of course, is a truism. However, I expect he will go further. If and in so far as he goes further and argues that if Parliament passes legislation requiring a particular sentence for a particular offence that is somehow by definition a just sentence, there we part company. Legislatures here and across the world can and do pass unjust laws. In many cases these minimum sentences would not offend against a judge’s sense of justice, but there will be many cases where they do so offend. If they are offensive to judges and to reasonable people’s sense of justice, I suggest that they are probably unjust, whether or not they are sanctioned by statute.

Take the case of an inadequate young man, whether before or after he turns 18, who gives into peer pressure to carry a knife and repeats the offence, or who does so out of genuine fear of gang members, combined with a misplaced belief that carrying a knife might protect him. Or take the case of a drug addict, hopelessly incapable of either giving up drugs or funding his habit, who commits burglary repeatedly and then comes before the court for a third or fourth time at a time when there is at last some hope of his rehabilitation and treatment. Such circumstances in the world of criminal justice are commonplace, but to find them “exceptional” judges would be put in the position of having to act in breach of their judicial oath. That does not mean that the sentences would not be unjust.

To put judges in that position is as wrong as it is invidious. It would weaken the confidence and pride of judges in their position and their work, and the confidence of the public in the judicial system. It might also adversely impact on the ability of prosecutors to obtain convictions. Permitting judges to depart from these minimum sentences where it would be just to do so would also promote rehabilitation and reform where that is, or might be, achievable. Mandatory minimum sentences would do none of that.

I also support Amendment 82A, tabled by the noble Lord, Lord Ponsonby, and my noble friend Lord German, which would introduce restrictions on sentences of six months or less. We on these Benches would go further and introduce a positive presumption against such short sentences, which, on all the evidence, do nothing to reduce reoffending—rather, they do the contrary—or to cut crime. I will leave it to the two noble Lords to set out the case for this amendment more fully. I beg to move.

My Lords, I support the observations made by the noble Lord, Lord Marks. On previous occasions, and indeed in Committee, I expressed my real anxiety about mandatory minimum sentences, particularly in the context of this group of amendments. I share the noble Lord’s view that a mandatory minimum sentence of this kind is capable of doing very considerable injustice.

I appreciate my noble friend the Minister’s view about exceptional circumstances, which he has explained before. I recognise that there is an ability on the part of the judge in exceptional circumstances to disapply the minimum sentence, but I share the noble Lord’s view that the concept of “exceptional circumstances” means something way out of the ordinary—exceptional. That means that the proviso, in my view, will be seldom applied.

The amendment moved by the noble Lord goes much further than that and, in my interpretation of it, imports the concept of fairness and justice. I agree with him. Because that is my interpretation of the amendment —namely, that we are introducing the concept of fairness and justice as a means of disapplying the minimum mandatory sentence—I shall support the amendment if the noble Lord seeks the opinion of this House.

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.

I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.

My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.

I have had the opportunity on a number of occasions, sitting as a recorder, to pass sentence in cases where, in one case after another, advocates have suggested that I take an exceptional course—and sometimes I have been persuaded to take an exceptional course. It seems to me that the word “exceptional” provides an opportunity for a judge in the interests of justice to depart from the minimum sentence. But this is a decision taken by the Government in response to a particular set of offences, and the general public would perhaps agree with that policy; it requires judges to think long and hard before deciding that there are exceptional circumstances. I note that the noble Lord, Lord Marks, suggested that there may be many cases where they consider it in the interests of justice not to pass a minimum sentence. It seems to me that that is a question of policy that the Government have identified and, although naturally I favour as much judicial discretion as possible, it seems to me a policy decision that they are entitled to take.

I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable

“contrary to the interests of justice”.

These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.

The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.

My Lords, I will say a few words in support of Amendment 82A dealing with short custodial sentences. The value of this amendment is that it places greater emphasis on alternative disposals, which fits in with what I thought was the Government’s policy of trying to rehabilitate offenders. Sending people to prison for a short period is counter- productive. One knows what happens in prisons. To send people for a short sentence is wasteful of public money. If there is an alternative to a custodial sentence, then it should be adopted. The proposal made in this amendment has a great deal behind it.

As for the other issues, speaking as a former judge I tend to support what the noble Lord, Lord Faulks, has said. If I was faced with the choice of words, I would find it easier to work with the Government’s wording than the wording proposed in the amendments.

My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.

This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

My Lords, I have added my name to Amendment 82A. I apologise to the House for being a few moments late into the Chamber; my little legs would not carry me fast enough from committee to Chamber.

Amendment 82A amplifies the debate we had on short sentences in Committee. It does not seek to ban short sentences but sets out to reduce the use of custody for less serious offences for which there are better options within the community. The argument made in Committee, that there are already guidelines and the Sentencing Code to guard against the overuse of short sentences, is disproven by the way in which the matter does not arise in sentencing at the moment.

The current arrangements—the ones the Minister spoke of in Committee—appear to be robust in theory because imprisonment is already reserved for serious offences and custody is already described as a last resort. As principles, these sound restrictive but have not proven to be so in practice. The current arrangements regarding the custody threshold are an unsatisfactory test because they can be interpreted as permissive when an offender has experienced all other possible forms of sentence even though their latest offence is not that serious. The problem with this is that it magnifies the roundabout, which is short sentences without any opportunity for rehabilitation, being outside for a very short period, reoffending and coming back through the system yet again.

This Bill creates a strange ladder of offences because, if you add in the additional features of the community sentences, which is detention in people’s homes, then that increases the features of the system in this first part of the ladder. The ladder then has a rung which has a much shorter stage to the position of imprisonment. We could say that the position after this Bill will be that the first part of the community sentences has much more amplification of the measures that can be used to deal with the sorts of crimes we have been talking about.

The amendment is designed to build a consensus around the use of custody, aligning the evidence of better outcomes with a choice of sentence. It also aligns with the Government’s position. In the 2020 White Paper from the Ministry of Justice, A Smarter Approach to Sentencing, the Government said:

“While short custodial sentences may punish those who receive them, they often fail to rehabilitate the offender or stop reoffending. Evidence suggests that community sentences, in certain circumstances, are more effective in reducing reoffending than short custodial sentences.”

This is the Government’s position, as outlined in 2020. This amendment makes reforms based on the length of sentence, by clarifying the principles for opposing imprisonment. For this reason, I commend it to the Minister. It would help reduce reoffending. It would help people rehabilitate. It would remove the great problem, as expressed by the Government, that short sentences punish those who receive them but fail to rehabilitate the offender or to stop reoffending.

My Lords, I will speak very briefly to this group of amendments. In particular, I support Amendment 82A in the names of my noble friend Lord Ponsonby and the noble Lord, Lord German. I declare my interest as a trustee and vice-chair of the Prison Reform Trust.

In Committee, I tried to make the arguments, both social and economic, against the use of short custodial sentences and in favour of robust community sentences, where appropriate. I will not repeat those arguments this afternoon. Suffice it to say that, in 2020, over 40,000 people were sent to prison, the majority of whom had committed a non-violent offence. Almost half were sentenced to serve six months or fewer.

As many voluntary and charitable organisations have pointed out, and as we have just heard, short prison sentences have proven less effective than community sentences at reducing reoffending. Short-term prison sentences have a particularly harmful effect on women, who often have primary care responsibilities. We will debate that later today. In 2020, the National Audit Office estimated that the annual cost per prison place was £44,640, whereas for a community sentence it was, on average, £4,305.

I support the views expressed by the noble Lord, Lord German. I have two quick examples which show why Amendment 82A is totally in line with the Government’s own recent policy statements. First, the Ministry of Justice’s Female Offender Strategy clearly states:

“We will support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences by … Ensuring that courts have better and more comprehensive information about female offenders to inform sentencing decisions”.

The Government support community sentences. As a committed member of the Minister’s Advisory Board on Female Offenders, I fully endorse this strategy. I believe it is totally consistent with Amendment 82A.

Secondly, there is the Government’s recently published From Harm to Hope: A 10-Year Drugs Plan to Cut Crime and Save Lives. They have committed £780 million to this programme, £120 million of which will be used to increase the number of offenders and ex-offenders engaged in the treatment they need to turn their lives around. The plan goes on to say that this enhanced spending on drug treatment and recovery will also drive down crime by cutting levels of drug-related offending.

I agree, and I believe these programmes will be successful if they are clearly linked to community sentences, not short-term prison sentences. Such community sentences, with treatment requirements—whether for drugs, alcohol, mental health conditions or a combination of all those requirements—properly funded and overseen by the reconstituted National Probation Service, will give the judiciary the confidence to administer them, as opposed to the expensive and futile experience of a short prison sentence.

I therefore believe that recent government policy announcements are totally in line with our proposals in Amendment 82A, and I feel sure that the Minister will give a very positive response to the proposal.

My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.

As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.

The amendments use the term

“contrary to the interests of justice”.

This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless

“satisfied that it would be contrary to the interests of justice to do so”.

However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.

As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.

I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.

I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.

I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.

So, although I am grateful to the noble Lord, Lord Pannick, for his generous adjectives, which I hope to retain despite our disagreement on this issue, I would say that this matter is properly one for Parliament because it is a question of setting out the ambit of judicial discretion. In our system, sentencing is a mixture of parliamentary legislation and judicial application. I therefore agree with the description given by the noble Lord, Lord Faulks: Parliament can properly decide what the ambit is of departing from a minimum sentence, as a matter of policy.

I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.

We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.

In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?

As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.

Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.

The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.

This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.

As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.

Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.

Amendments 72 to 78 not moved.

We shall now move on to the amendments that follow those to Clause 102. We begin with Amendment 78A. I should inform the House that the noble Baroness, Lady Brinton, will be taking part remotely.

Amendment 78A

Moved by

78A: After Clause 102, insert the following new Clause—

“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003

(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court must impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “the required minimum term” means seven years.”

My Lords, I shall move and speak to the amendments in the name of my noble friend Lord Ponsonby—this amendment and Amendments 78B and 78E, as well as Amendments 78C and 78D, which the noble Baroness, Lady Brinton, has also signed.

The amendment would introduce a minimum sentence of seven years for rape, apart from cases in which the court is of the opinion that there are exceptional circumstances relating to the offence or offender that justify the court not doing so. This issue was raised in the previous debate. I should refer to my noble and learned friend Lord Falconer who spoke on this issue in Committee. I was going to be incredibly nice about him but I see that he is not here, so I shall just move on. He said:

“The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that a particular offence merits a minimum sentence except in exceptional cases … There is nothing wrong with Parliament doing that. Rape is, in our view, one of those cases.”—[Official Report, 10/11/21; col. 1807.]

The amendment does not force judges to pass unjust sentences. There should be a minimum sentence for rape, which should be departed from only in exceptional circumstances. Victims need to see this happen. The reason that we are particularly concerned about this issue is the wider context in the justice system, which we should not ignore because confidence in the justice system is at an historic low, with just one in 67 rape complainants seeing their case come to court. It can take four years for that process to be completed.

The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. There are 3,357 victims of violent and sexual crime who have already been waiting over a year for their day in court, and a further 654 victims of those horrific cases have been waiting for over two years. Victims are not reporting; too many of those who report would say that they would not report a crime again; or they drop out of the process before any case comes to court. Parliament needs to show victims that it considers rape a crime of such seriousness that it is prepared to reflect that view in law.

Amendment 78B would introduce a maximum sentence of two years for publishing the identity of a sexual offences complainant. We are keen to test the opinion of the House on this amendment but we will, of course, listen to what the Minister has to say. This is an important issue and we should like the Government to, in some way, accept this measure. I am sure I do not need to explain to noble Lords just how distressing publication of the identity of a complainant is for the victim and their family. Fear of publication puts victims off reporting. The law understands this already and attempts to protect victims. Amendment 78B sends a signal that people who reveal names could have a sentence as high as two years. It does not say that that should happen in every case or that two years is a minimum sentence, but Parliament should mark the seriousness of this issue and the fact that people can be put under enormous pressure by the threat or fear of publicity.

In Committee, the Minister was sympathetic to the objective of this amendment and accepted that the unlawful naming of people whose identity is protected by law ought to be appropriately punished. We understand that the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today.

Because this offence causes so much distress to the complainants affected, and because this change could be made today without delay, we ask the Minister to consider accepting this amendment. If the Government bring forward additional legislation to respond to the Law Commission recommendations, they can then extend provisions to cover perhaps a greater number of types of victims whose identity is also legally protected. We would greatly welcome that and, if it could happen at the earliest opportunity, we would welcome that too.

Amendment 78C would create a new duty on the Secretary of State to nominate a government department to have the duty to inform victims and their families of the type of sentence, the time limit for application to the unduly lenient sentence scheme and that applications should be made to the Attorney-General. Amendment 78D proposes that, in exceptional circumstances, the time limit to apply to the ULS scheme should be flexible. This should include but not be limited to where the relevant body has failed to inform the victim or their family of the scheme and their rights under it until it is too late. Unfortunately, the ULS scheme is not sufficiently well-known by victims at the moment. We want victims and their families to be informed of the type of sentence that has been passed and what rights they have under the scheme so we can avoid situations where victims find out at only the very last moment that these rights exist and are unable to take advantage of them through no fault of their own.

Amendment 78D would allow the time limit of 28 days which applies to the ULS scheme to be extended in very exceptional circumstances. We accept that it should be extended in only exceptional circumstances, which should include but not be limited to where the relevant body obliged to notify the victim or their family of the existence of the scheme has failed to do so. These amendments make the ULS scheme more effective in that a government department would have responsibility for informing the victim and there would be some flexibility in cases where something has just gone wrong and the victim is unfairly disadvantaged.

Amendment 78E would ensure that those found guilty of abduction, sexual assault and murder would receive a whole life order as a starting sentence. My noble and learned friend Lord Falconer of Thoroton argued in Committee that a whole life term should be the starting point. The judge can of course take into account other factors, but there should never be a debate about whether a whole life term could be imposed, as we have seen.

I make clear to the Minister that it is his response on Amendment 78B that we are most keenly interested in today.

My Lords, the noble Baroness, Lady Brinton, will be taking part remotely, so I hope she is there now. Baroness Brinton, are you with us?

My Lords, I welcome this further opportunity to speak to Amendments 78C and 78D in the name of the noble Lord, Lord Ponsonby, on the unduly lenient sentence scheme, to which I have added my name, and to Amendment 82B in my name on home detention curfews.

First, I thank the Minister for trying to set up a meeting. It was unfortunate that he had to cancel it and that, because of the emergency coronavirus legislation, I was not free to meet him either yesterday or today. Further, as an aside, it is good to see the Government finally publish their consultation on a victims law and I hope that, after the consultation, legislation will swiftly follow. We have been waiting a long time and today’s amendments are very definitely there to help victims.

Turning first to Amendments 78C and 78D, in Committee, speakers made clear how the ULS scheme plays an important role in our justice system, providing the right for individuals to apply to the Attorney-General’s Office where they believe a sentence to be unduly lenient. As the Minister clarified earlier, the unduly lenient sentence scheme does not provide a direct right to appeal, but instead provides an individual, including victims of crime and bereaved family members, with the opportunity to have their concerns considered by the courts.

On Amendment 78C, we hope that the Minister will acknowledge both the intent and practicalities of such a proposition. The Government’s own victims’ code of practice is clear that victims deserve the right to be told about this scheme and that the responsibility for informing victims of crime about it is assigned to the witness care units. The problem is that the witness care unit is the wrong authority to have this responsibility, because it interacts with only those who are witnesses in court, thus excluding many victims, including bereaved family members.

Amendment 78D seeks to allow flexibility in the 28-day time limit in exceptional circumstances, which would remain at the discretion of law officers when considering the application. If the Minister is concerned about the perceived risk this poses to the certainty for the offender, we believe that allowing a degree of flexibility in exceptional circumstances, as is given to the offender in this case, at the discretion of law officers, does not pose such a risk.

Part of the current problem, and its true risk to finality in sentencing, lies in the current backlogs facing our court system. One recent unduly lenient sentencing case has taken 10 months to reach the Court of Appeal. This does not resolve the fundamental problem that victims face, which is that the criminal justice system should ensure that victims are aware of their rights, have sufficient opportunity to exercise them and have the same rights of flexibility in truly exceptional circumstances. We believe that these amendments, rather than posing a risk to justice and its efficiency, seek to ensure that justice is truly served and that victims of crime have the right—as the Government have set out elsewhere—to a fundamental role in this process.

I turn now to Amendment 82B, which seeks to amend the policy framework governing the use of home detention curfews to exclude those who have previously breached protective orders and who have a history of stalking, harassment, domestic abuse and coercive control. During the debate in Committee, we discussed the fixated and obsessive nature of these offenders and the risk this poses to victims and the public. We gave worrying examples of cases where high-risk offenders were released on home detention curfew, only to appear outside their victim’s home or work, often despite court injunctions not to contact their victim.

After Committee, Victoria Atkins, Minister for Prisons and Probation, wrote to the Victims’ Commissioner for London, stating that the scheme provides a transition to the community for lower-risk offenders. If we are to believe that this Government take violence against women and girls seriously, can the Minister explain how they can consider those convicted of stalking and domestic abuse as lower-risk offenders? The Minister himself stated, in a recent event held by the Domestic Abuse Commissioner, that domestic abuse is at the top of the Government’s agenda and reforming and reframing their response is their top priority.

Support for this amendment would present a small step in the right direction to give victims of such violence the trust and confidence that the justice system is committed to tackling violence against women and girls. I will not press Amendment 82B to a vote, but would welcome a meeting to see if we can make some progress on reducing the contradiction highlighted by Victoria Atkins for something that would provide real support for victims.

My Lords, I appreciate that the noble Baroness who moved the lead amendment in this group is concerned primarily with Amendment 78B, but perhaps I might be forgiven if I focus exclusively on Amendment 78A. This relates to the new clause, which would apply a minimum mandatory sentence of seven years to the offence of rape.

I am against this proposed new clause and think it profoundly wrong. I am against it for essentially two reasons. First, as one who has practised in the criminal courts for many years, I know that the offence of rape carries within it a very broad spectrum of culpability, from the most serious kinds of offence to ones significantly less serious. That should be reflected in the ability of the judge to impose the appropriate sentences.

Already a life sentence is the maximum that can be imposed. This takes me to my second point—that I really think the amendment is unnecessary. Anybody who goes to have a careful look at the guidelines published by the Sentencing Council as to how courts should approach sentencing for rape will come to the conclusion that public protection is already appropriately safeguarded. In fact, the spectrum of custodial sentences set out in the Sentencing Council guidelines is between four and 19 years. There is a whole host of considerations set out to assist the judge in determining what level of sentence should be imposed.

That takes me to the last point that I want to make. If you go to the Sentencing Council’s guidelines, as I am sure many of your Lordships have done, you will see a whole range of mitigating circumstances—as well, of course, as aggravating circumstances. Those mitigating circumstances are circumstances that a trial judge could take into account when imposing a determinate sentence of less than seven years. In the new clause proposed in Amendment 78A, nothing is said, for example, about what the consequences would be of remorse or contrition, nor about the making of an early plea, although that of course now attracts a mandatory reduction as a general proposition. Nothing is said about what happens if the defendant has been assisting the prosecution, nor about the time spent on bail. All those things are built into the sentencing guidelines of the council, but they do not appear in the proposed new clause.

If the amendment was to be accepted by your Lordships’ House, very considerable injustice would be done. I also happen to think that it is wholly unnecessary.

My Lords, I shall speak to Amendment 78B, on the maximum sentence for disclosing the identity of sexual offences complainants. I understand the motivation for this amendment and agree with the sentiment underlying it. The current level is obviously inaccurate and inappropriate, but it should not be addressed in isolation. It is correct that the present provisions for dealing with disclosure need revision, as they were passed in 1992 and plainly directed at conventional print, radio and TV media, antedating the internet. For newspapers and TV stations, a fine is generally appropriate. Since 2015, a level 5 fine has meant an unlimited one, which could run to hundreds of thousands of pounds for a newspaper that does this either deliberately or inadvertently. But we all know that today a malicious individual can cause similar damage with a post on the internet, and imprisonment may well be appropriate.

These are serious sexual offences—I do not deny that at all—but there are other matters of great sensitivity that will not be covered by this; it could well cause offence and upset if they are not dealt with at the same time, and they should all be looked at as a whole. The ones that I pull out in particular are, for example, to be found in Section 71 of the Female Genital Mutilation Act 2003. There is still only a fine if you disclose identity, when really it is a very sensitive matter—but, for historical reasons, it remains just a fine. So too if you disclose the name of someone involved in slavery—it is also only a fine—and so too with witnesses in the context of youth justice, which also results in only a fine. All those cases are dealt with in a magistrates’ court. Those things, which are all sensitive and difficult, would be better dealt with in the round. It might be that, for one category of offences, it was thought that the maximum sentence ought to be more than two years, and for others two years, but you want to look at them as a package and reach a considered decision.

This is a worthy amendment, in one sense, but it should not be pursued. Instead, I urge the Government to bring on the review with the Attorney-General that has been promised, really get cracking on it, and look at all offences of the unlawful disclosure of witnesses’ names. I am sure that, if the Government’s officials have time after Christmas, they could draw up a list of all those categories pretty swiftly and get on with it, so they are all dealt with as a whole. I call on the Minister to give appropriate assurances in that respect.

The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.

I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.

Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.

Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.

I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,

“unless … there are exceptional circumstances … which justify it not doing so.”

Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.

In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.

Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.

I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.

The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.

There would also be glaring and unjustifiable discrepancies with the penalty for breach of other sorts of prohibition on identifying a participant in a trial, some of which might have been imposed for a witness’s protection. I made that point in Committee. With respect, it was not directly addressed by the noble Baroness, Lady Chapman, and we therefore remain unpersuaded that it is appropriate to legislate selectively—

Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.

Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.

My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.

The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.

Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.

Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.

Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.

Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.

All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.

Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.

I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.

I am grateful to noble Lords, and particularly to the Minister for his comments in response to the amendments tabled by my noble friend Lord Ponsonby.

On Amendment 78A, clearly it is right that mitigating factors are taken into account and that remorse, guilty pleas and assistance with prosecution are considered; no one is arguing anything to the contrary. However, I put it gently to noble Lords that it is important that sentencing adapts as attitudes in society evolve. I suggest to those noble Lords who were so outraged that we might want to change the system with regard to rape that attitudes towards that crime have changed. That is a very good thing and we should welcome it. However, public confidence in how rape is handled is in crisis.

All rape is violent, often with life-changing consequences for the victim, and we will continue to press the Government on this. I am pleased that women are speaking up with confidence and demanding this kind of change. Speaking personally—although I know that is not something you can properly do from the Dispatch Box—I find the frequent emphasis in this discussion on the idea that there are different degrees of rape, that “There’s rape and then there’s rape”, troubling. As I say, though, we will return to this in future because the women of this country will demand that of us.

On the question of a spectrum of culpability, does the noble Baroness not realise that the sentencing guidelines take that as their premise? That is why the spectrum in custodial sentences is between four and 19 years, because the sentencing guidelines recognise that there is a broad spectrum in culpability and that, as well as aggravating circumstances, there can be mitigating circumstances.

Of course I realise that; I have read the sentencing guidelines. All I am saying is that attitudes in the country outside this House have changed, and the view of a minimum sentence of four years, as opposed to a minimum of seven, is changing, and we are reflecting that in our amendment. That is the point that I am making. I beg leave to withdraw the amendment.

Amendment 78A withdrawn.

Amendment 78B

Moved by

78B: After Clause 102, insert the following new Clause—

“Maximum sentence for publishing the identity of a sexual offences complainant

(1) Section 5 of the Sexual Offences (Amendment) Act 1992 is amended as follows.(2) In subsection (1), leave out “and liable on summary conviction to a fine not exceeding level 5 on the standard scale”.(3) After subsection (1), insert the following subsection—“(1A) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine not exceeding level 5 on the standard scale, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both.””

I will explain why we want to move this amendment. I am afraid we are unpersuaded by the Government’s response on this issue. There are many victims of this problem today and they could be better protected now. The failure to do so leaves complainants subject to publication without adequate justice, and that is putting people off reporting crime. This is a problem today, and the Minister’s position—the inability to fix it for all complainants—is, frankly, beneath him. I would like to test the opinion of the House on this issue because I think there is sufficient concern about it in many areas that we really need to make some progress on it now. I beg to move.

Amendment 78B disagreed.

Amendments 78C and 78D not moved.

Amendment 78DA

Moved by

78DA: After Clause 102, insert the following new Clause—

“Maximum sentence for an offence under section 70 of the Sexual Offences Act 2003

In section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), in subsection (2)(b) (penalty on conviction on indictment), for “2” substitute “10”.”

My Lords, this is a probing amendment. It increases the maximum sentence for the offence of sexual penetration of a corpse in Section 70 of the Sexual Offences Act 2003 from two years to 10 years.

I am tabling this amendment in the light of the appalling case of David Fuller. He was convicted month of the murders of two young women more than 30 years ago. When the police finally caught up with him, thanks to advances in DNA techniques, they discovered in his home evidence of some appalling sexual crimes, including 4 million images of sexual abuse. The most terrible of these images had been created by David Fuller himself. He had recorded himself sexually abusing the dead bodies of women and girls in the mortuary of the Tunbridge Wells NHS hospital—both the old one in Tunbridge Wells and its replacement in Pembury. This is where I live, so it is an issue that is close to my heart. It is also close to the heart of my right honourable friend Greg Clark, the MP for Tunbridge Wells.

Fuller had raped the dead bodies of more than 100 women and girls over a period of 12 years up to 2020. The youngest was nine; the oldest 100. Sometimes he repeated the offence on the same body. He kept records of his acts. There are no words to describe the depths of this kind of depravity.

Last month, Fuller pleaded guilty to the two murder charges, to 33 counts of the sexual penetration of a corpse involving 59 individual victims and to some other important charges. Unsurprisingly, this afternoon he was given a whole life sentence.

This case has shone a spotlight on the maximum sentence of only two years which is available for the offence of sexual penetration of a corpse. The judge today emphasised that there is no sentencing guideline for this offence. She in fact gave Fuller a 12-year concurrent term for the totality of his other crimes.

However, let us suppose that the evidence for the murders had not been strong enough for a conviction and that the only viable charges against him were for sexual penetration of a corpse, or perhaps that the evidence stood up for only one act of penetration of a corpse. He might then have been given only a two-year sentence, and could even perhaps have walked free this afternoon, taking account of his time in remand. I do not believe that this makes any kind of sense.

Although the immediate victims were not alive, this is not a victimless crime. The families of those victims are victims too. They feel a great sense of pain and outrage that their mothers, daughters and sisters have been desecrated. That has compounded their grief, as today’s statements in court made clear. The two-year maximum stands in stark contrast to the main rape and penetration offences in the 2003 Act, which carry life terms.

The sexual penetration of a corpse offence was created for the first time in the 2003 Act. I was the lead opposition spokesman when your Lordships’ House considered the then Sexual Offences Bill, and I am delighted that the noble and learned Lord, Lord Falconer of Thoroton, is in his place, because he led for the Government when that Bill went through your Lordships’ House. He may recall why the offence was settled at two years. In any event, I do not think that at the time any of us could have had a case as awful as that of David Fuller in our minds, because the facts of that case are simply unimaginable—at least, they were.

My amendment selects 10 years rather than two in order to make the point that sexual penetration of a corpse is a much more serious offence than a two-year term implies. I claim no expertise in criminal law or sentencing, and wiser heads than mine will know how best to calibrate this offence. The purpose of tabling my amendment is to hear from the Government what they intend to do about the offence, and when they will do it. I am aware that my right honourable friend the Secretary of State for Health and Social Care informed the other place that the Government would review the offence, but he did not put a timetable on it. It is a fairly simple issue, and I hope my noble friend the Minister can be clear with the House about what the Government will do. I beg to move.

My Lords, I support the amendment. I am conscious that the Bill is on Report. This is a probing amendment, but it raises an important and pressing point. I hope I shall be short. I make four points.

If this offence is taken on its own, I think we would all agree that two years is plainly an insufficient maximum. Let us assume for these purposes that an offender comes before the court, is not a murderer and has not been a party to the death of any victim, but has had access to the bodies and has done what Mr Fuller did. It appears that he committed many offences of sexual penetration of corpses to which he had access by virtue of his employment. It may not be common, but we simply do not know what someone may do in the future. It is an appalling prospect, but we simply cannot exclude the possibility that a non-murderous necrophiliac might offend in a similar way. I suggest that we must do all we can both to deter and to punish in that event. If there is no murder but a large number of offences, is 10 years really too long a maximum sentence for someone such as Mr Fuller?

I talk about punishment because it is impossible to contemplate the horror of a relative who learns that their deceased loved one was defiled in this way. We as society owe it to such a relative, who is truly a victim, to show that we respect the dead and will mark such behaviour in a way that demonstrates that respect.

When I was approached by the noble Baroness to help her on this matter, I asked the Library to do some research. It very helpfully uncovered materials relating to the debate that took place in 2003. There was the Home Office’s consultation paper of July 2000, and section 8.6 addressed this issue. It disclosed that at that time, somewhat to the authors’ surprise, there was no offence that made necrophilia illegal. The consultation disclosed that there was

“no firm evidence of the nature or the extent of the problem”,

but agreed that

“human remains should be shown respect”

and noted that

“relatives and friends would be deeply distressed”.

In section 9.2, that consultation addressed sentences for a range of offences. From my reading of the Government’s response in November 2002—I do not criticise anyone for this—it appears that the authors at that point may have proceeded on the assumption that the offence would follow and be additional to a charge of murder or manslaughter. In other words, it was not looked at on the basis of a stand-alone sexual deviant.

If we are looking for a comparator, brief research has disclosed what happens in Canada, where the offence carries a maximum sentence of five years. I question whether even that is sufficient in the worst case, but I leave it to others to consider.

To conclude, this is a most unpleasant criminal offence. It must be reconsidered as a matter of priority. The current sentence for the stand-alone offence is simply too low. I urge the Government to address this with dispatch and not to delay once the immediate clamour over the Fuller case has died down. It is not difficult. It simply needs a suitably steep maximum sentence to mark its gravity.

My Lords, Amendment 78DA, moved by my noble friend Lady Noakes, is in regard to the maximum penalty for the sexual penetration of a corpse. I first place on record my shock and horror at David Fuller’s horrifying offending; my thoughts are with the victims and their families. I assure the House that the Government are committed to looking in detail at what happened in this appalling circumstance to ensure that it simply never happens again.

As we have heard, just this afternoon Mr Fuller has been sentenced to a whole-life term of imprisonment. An investigation into other aspects of his offending is ongoing. The House will understand why I will not comment on the sentence passed in this case, but I thank all those in the police, the CPS and the wider criminal justice system for bringing him to justice.

The Government have announced an inquiry into the events that occurred in hospitals in Tunbridge Wells. This will help us understand how the offences took place without detection in the trust, identify any areas where early action by the trust was necessary and consider wider national issues, including for the NHS as a whole. The Government have already made good progress in establishing the independent inquiry. I understand from colleagues in the Department of Health and Social Care that the inquiry’s chair, Sir Jonathan Michael, has developed draft terms of reference already and will engage with the families on them in the new year before they are published.

As well as that inquiry, I assure the House that the Ministry of Justice is reviewing the existing penalties available for the offence of sexual penetration of a corpse. The statutory maximum penalty for that offence is, as my noble friend indicated, two years’ imprisonment.

I reassure your Lordships, however, that that is the statutory maximum penalty for one offence. Where the offence is sentenced alongside other offences, each offence will be sentenced individually. The overall sentence passed will therefore reflect the totality of the offending behaviour.

I also pay tribute to my noble friend’s work in supporting the inclusion of this offence when it was debated during the passage of the Sexual Offences Act 2003. It was created primarily to deal with a different circumstance—different circumstances were in mind at the time. The focus was on the situation where a murderer abuses the corpse of their victim after death, and it was therefore perhaps thought likely that those sentenced for this offence would, for the most part, be sentenced at the same time for another offence, such as murder—which of course carries a mandatory penalty of life imprisonment. As we have seen in the Fuller case, that is sometimes the case but may not always be so.

It is therefore right that, in view of this depraved—which is not a word I use often, but I think is appropriate in this context—and horrifying offending where we have seen an individual commit this offence independently of other offending in relation to that victim, we review the current statutory maximum penalty for the Section 70 offence. It may also be that this review, and the public inquiry into the offending in hospitals in Kent, will highlight other issues that need to be considered relating to the existing offences that deal with sexual abuse of corpses.

To be clear, I am not saying—I cannot this afternoon —that the Government will adopt the specific approach taken in this amendment, but neither do I rule out future changes to the maximum penalty. Rather, we are reviewing the maximum penalty in its context, and speaking with DHSC officials to ensure that learning from the inquiry into events in hospitals can be taken into account into our review of the penalty. That is the best way to reach a considered conclusion about how to amend Section 70 appropriately.

As to timing, the inquiry into the events at hospitals in Kent is due to publish interim findings in the new year, with the full report at a later stage. I will write to my noble friend, and place a copy in the Library, with any further information on the inquiry’s timescales as soon as that is available. Our review of the available maximum penalties is likely to follow a similar timescale, to ensure that findings from the inquiry can be taken into account in our conclusions. It is therefore important that we await the findings of the inquiry before amending the current legislation. I listened carefully to how my noble friend opened this short debate, and I therefore ask her formally to withdraw this amendment.

My Lords, this has been a short but important debate, and it will be particularly important for the families of those who died who were abused by that man. Clearly, they have suffered hugely. My noble friend is right to point out that I made clear that this was a probing amendment and therefore have no intention of pressing the amendment. My main purpose was to ensure that the Government are set upon dealing with this issue properly, and I was much reassured by what I heard from my noble friend. With that, I beg leave to withdraw my amendment.

Amendment 78DA withdrawn.

Clause 103: Whole life order as starting point for premeditated child murder

Amendment 78E not moved.

Amendment 79

Moved by

79: After Clause 116, insert the following new Clause—

“Independent commission to consider proposals for reform of the IPP sentence

(1) Within three months of the passing of this Act, the Secretary of State must establish an independent commission to consider proposals for reform of the imprisonment for public protection (”IPP”) sentence.(2) The remit of the commission must include, but is not limited to, the consideration of proposals that—(a) would allow for existing IPP sentences to be terminated and for their replacement by arrangements appropriate to the circumstances of the individuals concerned; and(b) have regard to the interests of both public protection and meeting but not exceeding the original punitive intention of the sentence imposed.”

My Lords, first, I thank everyone who has made it possible to get to this group of amendments before the business at 7.30 pm. I repeat the thanks, in which I think all others joined on 15 November, to those families and individuals who have been campaigning but also to Members from across the House. I am deeply grateful for the commitment of people in every group of your Lordships’ House and, I have to say, to those who have stayed this evening on the eve of recess. I hope that, by the time that the Minister has responded, it will be possible to see at least a modest way forward. I shall speak very briefly to allow that to happen in good time, so that we can conclude this debate before 7.30 pm.

I monitored the Commons Justice Select Committee’s interview yesterday with the Minister of State, Kit Malthouse, whose responsibilities of course bridge the Home Office and the Ministry of Justice, and I have to say that it was a dispiriting experience. That is why what commitments can be given by the Minister tonight will be so important, because, of all those to whom I have spoken in the department—and there have been several, indeed, multiple changes of Secretary of State and of Ministers—I trust and believe that the Minister understands the issues and is committed to trying to find a continuing way forward, and that therefore his word can be trusted.

I have to say that, when I hear comments, as we heard yesterday afternoon in that Select Committee hearing, about the constant recall of prisoners on licence being for their own good and being—I shall use the word that was used—beneficial, my heart sinks. If people, including officials operating in and overseeing the probation service, do not understand what is actually happening to prisoners at the moment and the dispiriting and hopeless nature of what is overcoming them, then we have a hopeless task in getting this right.

A number of forensic psychiatrists and psychologists in the criminal justice field have written to Members, including the Justice Secretary and the Minister, and will be putting evidence again to the Select Committee in the Commons. Their view has changed over the years, and they now believe that what we are doing is making it less likely that people will be able to be rehabilitated, change their behaviour and therefore get out of this terrible revolving door, which on 15 November we all of us across this House understood to be unacceptable and unsustainable. I heard yesterday a concession that there might well be individuals who will never be released, so we can understand why progress must be made.

We have three amendments in this group. The first, which is in my name—and I am grateful for the support for it—can at least in part be dealt with by a recognition that the Government will take seriously the findings of the Select Committee in the other place.

Amendment 81, which substantially deals with the need for automatic referral at each stage of the prisoner journey, can be dealt with, I believe, if the Government are prepared to bring their own amendment back at Third Reading.

Amendment 80, in the name of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for whom I have the most enormous sympathy and empathy, is something that I know, from monitoring what was said by Kit Malthouse yesterday and what has been said to me in my conversations with the Minister, the Government are not prepared—and will not in the Commons be prepared—to move on at this stage in relation to triggering Section 128 of the 2012 Act.

However, I believe sincerely that, if we can make a little progress in taking even small steps, that will set the ball rolling. What has happened with the campaign—with the pressure and the interest on this issue from people not just in this Chamber tonight but right across this House—has transformed the climate and the landscape for going forward. If we can have new guidance and procedures for the probation service, we can start to take seriously what is happening, instead of, as yesterday, mouthing platitudes about an action plan. There is no plan, and there is little action.

Everyone who has provided evidence has shown that the review and the guidance needed for the probation service is desperate. It is not a trimming of the sail—the term used by one of the officials yesterday—but a lifeboat, because these individuals deserve justice. The Minister in Committee in the House of Commons said that this was unjust. I have accepted that it is totally unjust and has worked out in a totally unacceptable way. The Government acknowledging that and taking steps forward will at least give us momentum and start the ball rolling to put this wrong right. I hope that when we hear from the Minister in a few minutes, we can be assured that, as tentative as the steps may be, we are at last making some progress.

My Lords, in speaking only to Amendment 80, I mention that I also support Amendment 81 in this group. Amendment 80 is the one amendment in this entire Bill that could reduce—if only by a tiny fraction—the prison population, which most of this Bill is, of course, calculated to enlarge. More directly and importantly, it would go some small way towards ending a long-standing and ever-growing injustice, now recognised by many as the greatest single stain on our criminal justice system with regard to the cohort of IPP prisoners.

Amendment 80 applies only to some of the 1,700 or so IPP prisoners still in prison after the abolition of the whole discredited scheme nine years ago by LASPO. The amendment applies just to two categories within the 1,700: those who have now served more than 10 years beyond the tariff sentence—in other words, more than 10 years over the proper punishment for their offending —and those who have now served more than the statutory maximum determinate sentence prescribed by law for their offence. For these people this is manifestly preventive detention—frankly, it is internment by another name.

Your Lordships may like to know that, of the 570 IPP prisoners who have served more than 10 years beyond tariff, 200 had tariffs of less than two years and another 326 had two-to-four-year tariffs, so only very few—44—had more than four years. Your Lordships may also like to know that the UK has more indeterminate sentence prisoners, lifers and those on IPP, than any other of the 47 countries in the Council of Europe including Turkey and Russia.

Unlike life sentence prisoners, who are serving life for the gravity of the crimes they have actually committed, IPP prisoners are there simply for what they might do in future—what, in short, they cannot prove to the satisfaction of the Parole Board that they would not do on release. The uncertainty, hopelessness, utter despair and sheer misery of the prisoners and their families need no emphasis. It is small wonder that there have been many suicides and that the rates of self-harm among these prisoners are more than twice that of life sentence prisoners.

In urging this amendment, I stress the essential modesty of the proposal. It is purely a reversal of the burden of proof. It still leaves the public protected against those who can be shown to be dangerous. If the prison authority responsible for their continued incarceration, with all the various reports from prison staff, medics and so forth, can still show that the prisoner would pose an unacceptable risk on release, then they will not get out. The amendment goes nothing like as far as many would wish and think appropriate.

When the noble and learned Lord, Lord Clarke of Nottingham, who, alas, is not in his place, abolished this scheme in 2012, I understand he wanted to abolish it retrospectively as well as prospectively but was not permitted to do so. Michael Gove, after ceasing to be Lord Chancellor. recognised the intrinsic injustice in the Longford lecture. Matthew Parris recently wrote in the Times how the Government need the guts to reassess these cases.

I end, as I did in Committee, with this question: suppose one of these IPP prisoners with a tariff of a one-year sentence representing his criminality, is more than 10 years beyond that and still unable to discharge the burden of showing the Parole Board that he can be safely released without risk. What should happen? Should he remain incarcerated for another five, 10 or 20 years, or do we as a nation accept lifelong internment for this group? I hope not.

My Lords, I will speak to Amendment 81 in my name which is substantially the same as one I tabled and withdrew in Committee. I am grateful for the support of my noble and learned friend Lord Garnier, the noble Lord, Lord Blunkett, and the noble Baroness, Lady Burt of Solihull. We are dealing with a shame and a scandal. I shall not dwell on the nature of it because that has been well spelled out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I shall come to the substance of the amendment because, of the three tabled on this topic, it is the one that is the most modest and helpful—indeed, it is intended to be most helpful to the Government.

Unlike Amendment 80, referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, it does not concern those in prison serving an IPP, only those living in the community on licence—that is, those who have been released after the Parole Board has resolved that they do not represent a serious risk to public safety. At the moment, these persons are potentially subject to a lifelong licence. They can be recalled to prison for a breach of the licence conditions at any point. The only way the licence can be terminated is for the individual to apply to the Parole Board for a licence review after the expiry of the qualifying period, which is currently set at 10 years.

The Government have stated that they wish those reviews to be automatic in future, not requiring an application from the prisoner. My noble friend Lord Wolfson of Tredegar said on 21 July in a Written Answer to the noble Lord, Lord Blunkett,

“From September this year, officials will refer automatically to the Parole Board the case of every offender serving the IPP sentence who has become eligible to apply for termination of his/her IPP licence.”

I take that as a definitive statement of government policy: automatic referral. But yesterday, when I attended a meeting of the Justice Select Committee in the other place—referred to by the noble Lord, Lord Blunkett—and a question about this was put to Sonia Flynn, chief probation officer, she did not reply using those words. She said something rather different. She said that from September, the probation service had started proactively encouraging those who qualified to make an application. She had no explanation when asked by a member of the committee why, of the 500 persons currently entitled to apply for their licence to be terminated, only 20 had applied.

There is a good reason why the probation service is not carrying out the policy in the terms set out by my noble friend. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. The Government cannot, therefore, make an automatic referral to the Parole Board without the prisoner’s active collaboration.

This amendment addresses that deficiency by amending the Crime (Sentences) Act 1997 to make an automatic referral to the Parole Board at the end of the qualifying period and, if the application is dismissed, annually thereafter. The referral does not depend on the acquiescence or collaboration of the prisoner, so it allows the Government to do what they have said they want to do and I hope it will command their support. What it does not do is prejudge in any way the decision the Parole Board makes on that referral. That remains a matter for the board.

Noble Lords may wonder why an offender entitled to a review at the end of the qualifying period should not have made one on his or her own initiative. What is the need for automaticity? The simple truth, however, is that many IPP prisoners out on licence after that many years simply do not want to re-engage voluntarily with the criminal justice system they believe has treated them so unfairly, even when proactively encouraged—“It’s the Home Office, we have a form for you to fill in”. This is the answer to the question that put to the chief probation officer about why only 20 of the 500 had applied. Automaticity is a good and necessary thing. The Government agree and it would be very strange if they held out against the substance of this amendment given that it gives them the statutory power to carry out their own policy.

There is, however, another part to the amendment. I referred earlier to the qualifying period after which a review of the licence can be applied for or, if this amendment were passed, would take place automatically. That qualifying period is set by law at 10 years. The very last words of the amendment would have the effect of reducing the qualifying period to five years. To those IPP prisoners who received a short minimum term, the 10-year licence period is wholly disproportionate and can hardly be argued to be necessary for public protection because, as I said earlier, under this amendment the decision whether to terminate the licence remains with the Parole Board. Reducing the qualifying period to five years simply reduces the length of time after which an individual is entitled to a review. These people will be out on licence with the approval of the Parole Board and will have shown themselves safe in the community for five years. The number of IPP prisoners recalled after five years out on licence is very small and the latest data shows that no IPP prisoner committed a serious further offence five years or more post release. The risk to public safety in this essentially administrative change is zero.

I very much hope that my noble friend will accept the modest changes effected by this amendment. I hope that noble Lords will bear in mind not only the plight of the offenders affected by this sentence but also that of their families, who have stuck with them in many cases and struggled and fought for them and whose lives, as a family, have been disrupted, damaged and, in some cases, come close to destruction by the injustice done and the practical impossibility of recovering the life of a free citizen. I hope to hear encouragement and undertakings from my noble friend. If not, I give notice now that, reluctantly, I may wish to test the opinion of the House.

It is such a folly, is it not, for legislatures to impose strict, rigid, statutory tramlines on sentencing decisions? That is what this problem stems from and I very much regret that the current Bill finds some more rigid, statutory tramlines to affect the sentencing decision.

What is the problem with this? It is very complex but I will try to sum it up. With the IPP, many of those subject to it or sentenced to it found that their dangerousness as an individual was being predicted on the basis of strict statutory assumptions of general application. That is not the way that we should legislate.

No one wants anybody dangerous to be released. I do not mean to be light-hearted about this, but nobody has ever thought that the noble Lord, Lord Blunkett, was a soft, lily-livered—I do not know what the right epithet would be, but he has never been one of them. He was responsible for this Act. He was the Minister and, if I may say so, I greatly admire his courage in coming to Parliament to say that something went wrong.

We all know that IPPs are a failure. They were abolished years ago. They are not available. Why on earth do we continue to keep people subjected to them, incarcerated, unless they are indeed dangerous.

May I take a completely trivial example? My daughter is in South Africa. She hit the red line four days after the new virus appeared. If she comes back, she is subjected—or was—to 11 days’ incarceration in a hotel, which is trivial compared to anybody in prison. That has changed and the red lines have gone. Is it really being suggested that those who were in a hotel, in quarantine, should now continue to be in quarantine although people coming in from South Africa will no longer be subjected to it? Of course not; it is completely daft.

I regret to say that I think the current situation is daft. We really must try to help the Government get rid of this absurdity and—can we also remember?—enable justice to be done to a large number of individuals.

I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.

I am a signatory to my noble friend’s amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.

Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.

My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.

At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.

I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.

I will be brief. There is an IPP fact sheet on the Ministry of Justice website that describes IPP sentences as “unclear and inconsistent” and says that they are not working because they

“have been used far more widely than intended, with some … issued to offenders who have committed low level crimes with tariffs as short as two years.”

I do not understand why the Government would continue to leave people to rot in prison when they have scrapped the system. Perhaps the Minister could explain that particular conundrum. I have no legal training but I think I have an awful lot of common sense; to me, this is a clear injustice.

On rotting in prison, I have had a letter from the mother of an IPP prisoner. She said that two of his fellow IPP prisoners committed suicide because they felt that there was nothing left in their lives. Clearly, this is an injustice. Are the Government going to do something?

My Lords, I just want to associate myself with the comments of my noble friend Lord Beith. I will reserve my comments until after the Minister has spoken.

My Lords, I am extremely grateful to the various Members of the House who have spoken. These amendments relate to offenders serving sentences of imprisonment for public protection, known as IPPs. We had a heartfelt and powerful debate on this issue in Committee; the mood during today’s debate has been equally apparent. I should say that, throughout this time, I have personally received a lot of emails from families affected by IPP sentences. I put on record that I have read all of them, even if I cannot reply to them all individually.

Let me go through the amendments and set out the Government’s position clearly. First, I make it absolutely clear that the Government recognise that more work needs to be done in relation to this group of prisoners. On that basis, the Government intend to bring forward an amendment at Third Reading. I will give details of that amendment in a moment; let me first set out the work done so far.

We have put together a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences to safe release via this plan. Liaising with front-line staff and consulting stakeholders, officials regularly review and revise the plan to ensure that it addresses current operational challenges. As I noted in Committee, the Justice Select Committee in the other place has launched an inquiry into IPP sentences, as already referred to. Its stated aim is to examine

“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”

The Select Committee is scrutinising what the Government are doing and will provide recommendations, which the Government look forward to hearing. I therefore underline that we are already doing effective work in this area.

Turning to the amendments put forward by noble Lords, Amendment 79 would require an independent commission to be created to consider proposals for terminating existing IPP sentences and replacing them with other arrangements as would be appropriate for the individuals concerned. The commission might also consider other matters. The Government’s long-held view is that legislating to resentence IPP offenders would cause an unacceptable risk to public safety. Any resentencing of IPP offenders would risk the immediate release of many prisoners who have committed serious sexual or violent offences without a risk assessment and, in many cases, with no licence period. It is therefore vital to public protection that they are released only when the independent Parole Board determines that they may be safely managed in the community. Our aim is therefore to provide all those who continue to serve IPP sentences with every opportunity to show that they can safely be released by the Parole Board. The IPP action plan, which I mentioned a moment ago, is working. As of 30 September 2021, there are 1,661 IPP prisoners who have never been released. That marks significant progress compared with the more than 6,000 people in custody serving the IPP sentence at its peak, so we do not think that establishing a commission is necessary, given that officials already consult widely on the measures needed to reduce the IPP prison population safely.

Amendment 80 is intended to reverse what some consider to be the burden of proof for the test applied by the Parole Board when considering whether certain IPP offenders are safe for release. This would apply to IPP offenders who served a prison sentence of 10 years or more beyond the minimum term as directed by the court, or longer than the maximum equivalent determinate sentence, for their offence or offences. The current Parole Board release test is constructed so that the board must not give a direction for release unless it is satisfied that it is no longer necessary on the grounds of public protection for the prisoner to remain confined. For the offenders in scope of this amendment, the burden of proof test would be reversed. We discussed this matter in Committee when I reiterated our view that the amendment, in so far as it reverses the burden of proof, which some claim is inherent in the current test, would not have a material impact on release decisions for IPP offenders. The intention of this amendment is that the Parole Board assessment should be altered to ensure that more IPP offenders are released. We just do not agree that it would have the intended effect or is in any way necessary because the Parole Board would still have to undertake an assessment of the risk of harm and reoffending to make a judgment on whether the risks could be managed effectively in the community. It is not a matter where a burden of proof, however framed, would likely affect the underlying decision.

I now turn to Amendment 81. I place on record my sincere thanks to the tablers of the amendment, especially the noble Lord, Lord Blunkett, for the significant amount of time that he and others have dedicated to discussing this issue with me. I know that he and, indeed, everyone else in the House will listen carefully to what I am about to say. I intend to be very clear.

At Third Reading, we will bring forward a government amendment putting our policy of automatic referral of licensees on a statutory footing so that when the time comes that an application for release or termination of licence can be made, it is made. At this stage, we cannot accept a reduction in the qualifying period from 10 years to five years, but we will return to this issue once we have received the report and recommendations from the Justice Select Committee in the other place, which, as I said, is currently in the process of taking extensive evidence.

As I said, we do not think that establishing a commission would be an effective way forward. However, we are prepared to urgently consider automatic referral, as I said, and by the Secretary of State, as this would not detrimentally impact other conditions and could provide clarity for the individual serving out the licence conditions. To provide reassurance to your Lordships’ House and to those campaigning for change—particularly the family of IPP prisoners—the Government are willing to look at the guidance provided to the probation service and the procedures to be followed in supervising those on licence to minimise the risk of breach of licence and promote the rehabilitation of those who have served their sentence and are now on licence.

Although the Government are clear that it is the role of the Parole Board to assess risk when agreeing release on licence, we are mindful, as was indicated in Committee in the other place, of the potential injustice of the revolving door, and therefore take seriously the representations made by noble Lords in Committee and tonight. I reiterate that I am extremely grateful to those who have taken the time and effort to discuss these matters with me on a number of occasions over the last few weeks.

On this basis, I hope that the tablers of the amendments in this group will agree that the Government are acting in good faith, and will therefore not press their amendments this evening.

Before my noble friend sits down, I heard what he said, but if the Justice Select Committee in the other place was to recommend a reduction in the qualifying period from 10 years to five years, would he at least give his personal undertaking to do his very best to ensure that the Government found an opportunity to legislate for that at the earliest possible time?

I am not quite sure of the meaning of a personal undertaking from me to ensure that the Government will find an opportunity. I hope the House will appreciate that I have personally put a lot of time and effort into this matter. When I see the Justice Select Committee’s report, that time and effort will not diminish.

My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.

My Lords, I cannot pretend to be wholly content, let alone happy, with what the Minister has been allowed to say today. It falls dramatically short of providing any sort of an answer to the final question I asked earlier: are we to keep these post-tariff detainees in effect endlessly and for life? It is surely no answer to my point to say that reversing the burden of proof is unlikely to make any difference. That is even less a reason to object to this amendment.

I repeat that I am very far from happy but, as the noble Lord, Lord Blunkett, said, we have at least got some assurances, for the first time, that Ministers will look again at the plight of these IPPs and make some improvements at least to the recall regime—hopefully the first step in a re-evaluation of the entire remaining IPP problem. The other consideration that now weighs on me is the point that has been made that the Justice Select Committee in the other place is now deep into its full-scale IPP inquiry and its eventual report must surely inform the Government’s approach. In the meantime, alas, it provides something of an excuse for the Government to do little of great note.

It is clear that there is huge support for Amendment 80 around the House. What is ultimately needed is political will. For my part, let us hope that the Select Committee will call for proper reform and for the political will to deal with it, and that that is now shown. Meanwhile, I confess that I am deeply disappointed, as will be the IPP prisoners and their families. As the noble Lord, Lord Blunkett, points out, I have no alternative but to not press my Amendment 80.

On the basis of the Minister’s statement, and not wanting a pyrrhic victory, which would end in defeat and even greater hopelessness for those we seek to help, I beg leave to withdraw Amendment 79.

Amendment 79 withdrawn.

Amendments 80 and 81 not moved.

Consideration on Report adjourned until not before 8.10 pm.