Unduly Lenient Sentences

Wednesday 6th December 2017 Westminster Hall

16:30

[Sir Mike Penning (Hemel Hempstead) (Con)]

I beg to move,

That this House has considered unduly lenient sentences.

It is a pleasure to have this debate under your chairmanship, Mr Davies. The debate can be no surprise to the Solicitor General or to the Ministry of Justice. We have an hour, so I will keep to a couple of points that I have been making for the nearly 12 years I have been in the House, and I will leave it to other colleagues to raise other issues. I have purposely worded the motion so as to allow as many colleagues as possible to join the debate. The subject is not a controversy or party political in any shape or form. Some of this could have been addressed under the previous Labour Administration. Indeed, they tried to address it, as did the coalition; I certainly tried to address it when I was the Minister with responsibility for police, justice and, in particular, victims.

I come at the subject from the point of view of the victim. If the criminal justice system is to do what it says on the tin, it has to side with the victim. What worries me is that parts of court sentencing make victims feel, quite rightly, that the system is not on their side. There are two obvious anomalies. Anyone who has been found guilty has the right to appeal against the severity of their sentence. There is no argument about that. In a civilised society, that is right and there is a procedure for it.

In our courts, however, the procedure for victims, a victim’s representative or someone such as their MP to appeal against the undue leniency of a sentence is quite perverse. The guidance on the Government’s website, under “Ask for a Crown Court sentence to be reviewed”, is vague:

“Only certain types of case can be reviewed, including…murder…rape…robbery…some child sex crimes and child cruelty…some serious fraud…some serious drug crimes…some terror-related offences”,

and—without the word “some” this time—

“crimes committed because of the victim’s race or religion”.

The word “some” leaves things open in anyone’s mind, making it enormously difficult for the public we represent to understand what can and cannot be appealed against.

When I was a Transport Minister, I noticed the classic example of death by dangerous driving. Death destroys a family, and if drink and drugs are involved in the case, the sentence is appealable. A sentence for death by careless driving, however, is not. Although really serious offences are tried in the juvenile courts, my understanding is that it is not possible to appeal against undue leniency. If I am wrong, I am sure the Solicitor General will tell me.

[Gareth Johnson (Dartford) (Con)]

I congratulate my right hon. Friend on securing this important debate. Is he aware that more than 40% of sentences referred to the Attorney General are refused simply because they fall outside the scheme, and that has included at least one case of rape from the youth courts? Does he agree that that explains the clamour from the public to widen the scope of the scheme?

[Sir Mike Penning]

My hon. Friend hits the nail on the head. I congratulate him on the work he has done to address the law in this area. If we work together across the House, we can address what he wanted his Bill to do with regard to other anomalies. When we talk about the juvenile courts, we think about really young people, but I could have been prosecuted in a juvenile court—had I committed an offence—while I was serving in the Army, which I joined when I was 16. It seems to me that we are removing a whole plethora of cases—with victims who still desperately need to feel that they have been heard and listened to—simply because they were tried in a certain type of court or involved a certain type of offence.

[Rehman Chishti (Gillingham and Rainham) (Con)]

I pay tribute to my right hon. Friend for securing the debate. He has mentioned his time as a Transport Minister. I completely agree that one should do everything one can to support victims, but at the same time one should prevent people from becoming victims in the first place. Does he agree that, in certain circumstances—such as sentencing for driving while disqualified or drink-driving, for which only a six-month custodial sentence can be given by the lower courts—we need not only that review of unduly lenient sentences, but a review of sentencing in the wider context, including for such transport matters?

[Sir Mike Penning]

Absolutely. Colleagues across the House will bring up such anomalies during this debate. I am enormously proud of the very few drug-related driving offences that were prosecuted—I had the honour of being the Transport Minister when we introduced the drugalyser at the roadside—as well as of the first prosecutions that took place, although that took nearly four years and I was in the Ministry of Justice by then. But the sentencing also needs to be a deterrent. People need to realise that when they commit certain offences, the penalty will fit the crime. If people go before magistrates courts—I think this is what my hon. Friend was talking about—knowing that they will get only six months, they will not opt for trial by jury or to go up through the system to be tried before a judge in the Crown Court. I agree—though this is not something I will concentrate on today—that we need a much wider debate on the types of sentencing to which I am referring.

Before I became a Minister, I did try—I appealed against the leniency of sentences, particularly those to do with paedophiles. I had real concern about some of the sentences for paedophiles who not only did not plead guilty, but did not think that they had done anything wrong, and I have always had concerns about racially aggravated offences. I think such offences are an abhorrence to our society.

I appealed successfully. One of my constituents was murdered by a man called McLoughlin, who was out of prison on day release. He attacked my constituent’s neighbour and my constituent did what I hope I would do, which was defend their neighbour, but they were murdered. McLoughlin was found guilty in the courts and given a sentence of something like 20 years—don’t quote me on that. We all knew what would happen—it would be three years or something. Nor was that the first offence, because he had murdered before. I appealed to the then Labour Attorney General that the sentence was unduly lenient. He should have got a much more severe sentence, or at the very least an indeterminate one.

In court the judge had said, “I cannot give an indeterminate sentence, because the European courts will strike it down.” That was like a red rag to a bull. The sentence a judge in our courts gives has nothing to do with a European court. We subsequently won the appeal—the Attorney General agreed with me, as did, eventually, the Court of Appeal. McLoughlin was eventually given the right sentence, which was an indeterminate one. Hopefully, he will spend the rest of his life in prison. That will never bring back my constituents’ husband and father, but the original sentence was wrong.

When I got into being a Minister, in particular for policing in the Ministry of Justice, I kept asking: why are we not addressing those anomalies in the law? It is fundamentally unfair that victims do not have the same rights as the perpetrators. The Ministry of Justice is not represented in the Chamber today, but I know that the briefing would be that the cost implications of having more people in our prisons are disproportionate.

I am afraid that that is tosh. I have seen no physical evidence for that—not in the whole two and a half years I was in the Department, and I asked for it several times. The Attorney General and I debated it around the ministerial table and with the Prime Minister, who was then the Home Secretary. We never got to the bottom of the great opposition in the Ministry of Justice to more people going to appeal. In actual fact, from the other end of the telescope it looks like fewer people go to appeal because they do not all opt to go to the Crown Court, opting instead for their defence to be heard by their peers in a magistrates court. There is no evidence and we do not know exactly what is going on.

[John Howell (Henley) (Con)]

Surely one solution is to ensure that the sentencing is correct at the beginning. The Select Committee on Justice is a statutory consultee of the Sentencing Council. It has to give opinions on the sentencing proposed in the council. Does my right hon. Friend agree that the Committee should take a much tougher line?

[Sir Mike Penning]

My hon. Friend is a member of that Committee and it should take a much tougher line and a much closer look at the issue of fairness or unfairness. I may be wrong—I may be banging my head against a brick wall. Perhaps victims do not want their voices heard. Perhaps they do not want to feel that they are equal in the courts.

In the past few weeks I have taken up the biggest anomaly, which really upsets me. I appealed recently against the sentences given to a group of gentlemen—I use that word advisedly—who were involved in the sex gangs in Newcastle. I can say that because they have been convicted. When I saw the sentence, I was very surprised that the judge had not taken into consideration that the crimes were obviously racially motivated. All the girls but one, I think, were white, and nearly all the perpetrators were of Asian extraction. That is not casting aspersions on the whole community; they are simply the facts.

I wrote to the Attorney General, to ask whether he would kindly look into this, whether he agreed that the sentences were unduly lenient and, if so, whether he could refer the issue to the appeal court. To my astonishment, a very polite letter came back from the Attorney General that said, “I’m really sorry; I cannot look into this, because you are outside the 28-day limit. You have to appeal within 28 days to the Attorney General.” I said, “It was only in the papers the day before yesterday”. “Ah”, said the Attorney General, because the judge had put a restriction on reporting the sentencing. The sentence had actually taken place about two and half months beforehand. The victims did not know that and neither did we. No one knew, so it was not possible to appeal against the leniency.

From conversations that I have had with the Solicitor General, I know that he will come up with some ideas. The situation, however, is an insult to those victims whom we are supposed to represent, not just here but in our courts, so that justice is seen to be done. I ask the Solicitor General: is there an answer? A pretty simple answer would be that, if the judge puts a restriction on court reporting, the Attorney General should be informed of the sentence and be able to look into it. Even though that is a step in the right direction, the problem is that the victims do not know, so their legal representatives are not able to appeal on their behalf, and neither are we. We need to do something about that. I have previously discussed with the Attorney General the issue of how to get justice for victims and I got quite an interesting response. It was very different from that which I received form the Ministry of Justice. The simplest way for victims to get justice would be to make it possible to appeal against unduly lenient sentences in the Crown court. That option is available to the perpetrators—those found guilty of a crime have those rights—so why is it not available for victims?

[Mr Gregory Campbell (East Londonderry) (DUP)]

Will the right hon Gentleman give way?

[Sir Mike Penning]

I will just say one last thing and then I will give way, as I am conscious of the time. I am absolutely passionate about this issue. I believe that we have the greatest criminal justice system in the world, but it needs to learn from what it is doing wrong. This is one example of that.

[Mr Campbell]

I thank the right hon. Gentleman for giving way and I congratulate him on securing the debate. Does he agree that the 28-day limit is in all probability against the spirit in which it was introduced? Does he agree that a way around that would be that any time limit, be it 28 days or more, should be applicable from the time when any relative or victim becomes aware of the leniency of the sentence given by the court?

[Sir Mike Penning]

I completely agree with the hon. Gentleman. The appeal system states that it is not just the victim or their MP who has the right to say that they think there is an anomaly and that something has gone wrong. Anybody can appeal. The only way that they can do that is if the 28-day period starts on the day that the sentence becomes public. That is the only way it can work. We can consider other ways to do that, but I think that is the only way. It should be possible to appeal against all unduly lenient Crown court sentences. I have not seen any evidence of exactly what that would cost. We all understand the issue of cost, but it is important that the justice system is fair.

The 28-day period has to be addressed. There is something fundamentally wrong. There are cases where people have been unwell following the loss of a loved one and have not had the opportunity to appeal in time. The judges have a very limited power and once the 28 days are over, the Attorney General cannot do anything. That has to change.

I will get lots of letters tomorrow morning saying that I should have brought up lots of different subjects. One particular subject I want to raise is cruelty to animals, which is fundamentally wrong. I think that sentencing for cruelty to animals is really wrong and it needs to be addressed. There are human victims of that crime, as well as the animals subjected to cruelty. There are lots of other issues, too. I wanted this debate to concentrate specifically on the victim, and I hope that I have done that.

[Several hon. Members rose—]

[Geraint Davies (in the Chair)]

Order. I am aware of the number of people who want to speak, so I am introducing a time limit of four minutes for speeches.

16:45

[Jim Shannon (Strangford) (DUP)]

I congratulate the right hon. Member for Hemel Hempstead (Sir Mike Penning) on bringing this issue to the House. Over my 30 years as a councillor, as a Member of the Legislative Assembly and now as an MP, I have seen literally thousands of cases, but these cases are different. They stick in my mind because of what happened. In the short time I have, I would like to mention the heartbroken mothers whose lives were torn apart when their children were killed by a drunk driver, and the knife being twisted further at court when the judged passed a sentence that came nowhere close to natural justice.

My heart aches when I think of those scenarios, as it does in the case of sexual abuse of children. They are the most difficult cases that I have ever dealt with as an elected representative. They are very emotional because I become intertwined with the person telling the story. When those abused children become adults and they speak out about what was done to them, the nightmare comes back—something triggers it and I do not know what it is—but all of a sudden their memories of what took place when they were children become part of the living hell that they are in. There is the physical and emotional turmoil of taking the step of reporting their abuser to the police. They then go through the interview process and finally, the intrusive court case, which, no matter how sensitively the judge handles it, inevitably causes more wounds and scars.

After putting themselves through all this, in the hope of finding justice or some form of closure, they find only heartache and even feel dismissed, as if they are not worth the trouble. I understand that it is hard for judges who wish to do more but find that their hands are tied. In Northern Ireland, the Public Prosecution Service offers the following guidance on unduly lenient sentences:

“In certain cases, the Director of Public Prosecutions for Northern Ireland, who heads the Public Prosecution Service (PPS), has the power to ask the Court of Appeal to review a sentence on the grounds that it is unduly lenient. An application to review a sentence must be made within 28 days from the day when the sentence was imposed.”

The right hon. Gentleman mentioned that. It continues:

“If the Court of Appeal agrees that the sentence was unduly lenient it may increase the sentence…The court also takes account of the fact that the offender has been put through the sentencing process a second time. It will not intervene unless the sentence is significantly below the sentence that the judge should have passed.”

There is a big if in the process. A victim is once again looking at a long drawn-out process to have their justice and this is not guaranteed. They must again take the steps to make contact, retell their horrific story, wait to be judged to see if what happened to them is bad enough to be reviewed, and wait to see if another court will uphold, increase or decrease the sentence of the person who destroyed their life. All the while, it is the victim who is suffering in silence, as my hon. Friend the Member for East Londonderry (Mr Campbell) said, while the perpetrator goes through a further sentencing process. Something seems a little wrong with that. The right hon. Member for Hemel Hempstead said that, too, in his introduction.

I understand that our prison service is at capacity. I understand that it is impossible to hand out custodial sentences for every crime and indeed it would be insane to do so. I also understand that the punishment must fit the crime and there are certain crimes that are not punished accordingly. There is an appeal system in place but it is up to us to legislate, to enable judges to make the punishment fit the crime, rather than putting the onus back on the victim and almost re-traumatising them. There has to be a better way.

The right hon. Gentleman mentioned sentencing in animal cruelty cases. I have asked for sentences to be reviewed in cases involving the horrific abuse of animals and, to be fair, the Public Prosecution Service has looked at those sentences again and increased them. But there has to be a better way, and this House is tasked with finding it. I ask the Minister, with great respect, how this will be accomplished through legislation, rather than through the appeals process.

16:50

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Davies. I congratulate my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning), who hit the nail on the head in securing this timely debate. Under-sentencing has a number of effects—it causes outrage for the victim, it demoralises the police and it may cause public danger, but more important than all those things, it hinders the development of a rational sentencing procedure in the courts. It is important to bear that in mind.

We heard from my right hon. Friend that the subjects covered by the unduly lenient sentences scheme were extended in August to include terrorist activities, so it is open for them to be further extended in the way that he suggests. I presume that the Solicitor General has some sympathy with that view. I know that he is working hard to try to bring charges against people who have received unduly lenient sentences, and he has had some success with that in the courts.

Let me return to the point that I made in an intervention on my right hon. Friend. The Justice Committee is a statutory consultee of the Sentencing Council, which produces guidelines for judges about what sentences should be applied in individual cases and how they should be applied. I understand, having reviewed some of those things, that this is difficult because the issues are complex and challenging. For example, the Select Committee looked at intimidatory offences and domestic abuse, which would be ideal for inclusion in the scheme, but our efforts to give concrete examples were bedevilled by the complexity of the issues involved.

However, we should put more emphasis on this issue. We ought to give a firm steer to the Justice Committee that it can take as hard a line as it likes and give a good, rational steer in this area. One of the things I was most taken aback by when looking at domestic abuse cases was the mitigating factors that were brought in, which included good character, provocation, self-referral for treatment and so on. They have their place, of course, but there seemed to be too strong an emphasis on them rather than on getting sentencing right in the first place. Unless we get sentencing right, we will blunt the deterrent effect of the criminal law. That would be a disaster for us and a disaster for the judicial system.

16:53

[Peter Heaton-Jones (North Devon) (Con)]

It is a pleasure to serve under your chairmanship, Mr Davies. I congratulate my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) on securing this debate. I echo what he said about the importance of the victim being at the centre: victims and their families should absolutely be front and centre.

It is completely right that it is open to victims and their families, and to the general public, to make complaints about undue leniency to the Attorney General. However, as my right hon. Friend said—he hit the nail on the head—the current system is less clear than it should be, if I may use that phrase, and the threshold for referral seems pretty high.

Let me use a specific case from my constituency, in which there are no ongoing legal proceedings, to illustrate that. Tragically, Aiden Platt, a young constituent of mine in North Devon, was killed when his motorbike was hit by a driver under the influence of drugs. Aiden was just 20 years old. That hit the family and the community of North Devon extremely hard. The driver, a woman called Laura Ward, had cannabis, diazepam and amphetamines in her system when she hit Aiden. At the subsequent court case, she admitted causing death by careless driving while under the influence of drugs. Between the crash and the court case, a further factor arose: Laura Ward became pregnant and had a baby. The judge at Exeter Crown court gave her a 20-month suspended sentence. He specifically said that the reason for that suspension was:

“Your son is five months old and I am…persuaded for that reason and that reason alone I can properly suspend this sentence.”

I have met Aiden’s mother, Mandy, on a number of occasions and she knew that I would raise this case today. I have also been contacted by friends and members of the local community. Frankly, they all express astonishment at this case. For them, not unreasonably, justice has not been done. Yet when Mandy sought a referral by the Attorney General on the ground of undue leniency, she was advised that the case was not within the scope of the current scheme. Aiden’s family think that that is wrong, and I agree: it sets the threshold too high. The other point that they make, after suffering the trauma of the loss of their young son and then the trauma of reliving it all during the subsequent court case, is that 28 days is actually a pretty short period in which to, as Mandy put it to me, “get your head together” and get around to making a formal referral to the Attorney General. That time period ought to be extended.

For those reasons, I ask the Solicitor General not just to give consideration to what offences are within the scope of the unduly lenient sentencing rules, but to consider widening the Attorney General’s ability to refer cases where the offence is already within the scope of the rules but the “gross error” threshold for referral seems to set a pretty high bar. My constituents would take great confidence from knowing that those matters were being reviewed. They believe that the sentence that the woman who killed their son received sends out the wrong message. I hope that, in reviewing the rules for unduly lenient sentencing—I welcome the fact that that is being done—we can put that right, and I very much look forward to the Solicitor General’s comments.

16:57

[Philip Davies (Shipley) (Con)]

One of the good things about our last manifesto was our clear commitment to extending the unduly lenient sentences scheme, which was a continuation of our clear commitment in our previous manifesto. I just wish we would get on with it. The scheme has been modestly extended to include some terrorism-related offences, but we need it to cover far more offences.

I regularly criticise the justice system, but one of the good things about it is the ability to challenge sentences that fall outside the normal bounds of leniency. I have successfully used that provision a few times, and I congratulate the Solicitor General, who has done a brilliant job in appealing many unduly lenient sentences with great success.

One recent example of the power of the scheme is the case of Safak Sinem Bozkurt. She was a prison officer who smuggled phones, SIM cards and drugs into prison. She avoided prison because of her children. When the case was appealed, counsel on behalf of the Solicitor General said that her children could not be used as a “trump card” to avoid jail. The judges agreed that the sentence was too lenient and she was rightly sent to prison.

It is frustrating when cases cannot be appealed because they do not fall within the scheme. Ironically, there can be variation where the same offence is charged differently. For example, where someone is charged with sexual activity with a child, their sentence generally can be appealed, but where they are charged with sexual activity with a child while in a position of trust, it cannot be.

[Sir Mike Penning]

I wanted to cover this point. Actually, the legal profession have to look at themselves as well, because often they advise clients to plead guilty to one offence, knowing that it is outside the scheme, rather than defending themselves inside the scheme. The legal profession are telling them what to do to beat the system.

[Philip Davies]

My right hon. Friend is absolutely right, and I am grateful to him for highlighting that point. The inability to appeal a sentence based on charging and not the facts has led to some very low sentences. One example involved a transsexual called Gina Owen, whose case was before the court last year. She pleaded guilty to two counts of causing or inciting a child to engage in sexual activity 12 years earlier, before she underwent sex reassignment surgery. She only pleaded guilty on the day of the trial when the charges were amended.

Gina Owen was employed as a taxi driver by the local council to drive children to a special school in Somerset. During the six-month period of abuse, I understand that Gina Owen made the victim tie her up in bondage sessions, urinate in her mouth and humiliate her by hitting her then-male genitals. Gina Owen was 61 when the matter came to court and the abuse was of a boy who was around 13.

I raised the case with the Solicitor General, who wrote to me to say:

“The CPS has now considered the amendment to the indictment and concluded that counsel’s approach was wrong. Their clear view is that…he was at all times under the age of 16. Therefore, there was a realistic prospect of conviction for the under 16 offence. This is clearly a more serious offence than the position of trust offence, carrying a maximum penalty of 14 years, as opposed to 2 years. It is also in the unduly lenient sentencing scheme. The CPS’s view is that it would also have been in the public interest to prosecute”—

for that more serious offence—

“notwithstanding the possibility of a plea to the position of trust offences.”

As a result, the defendant received a conditional discharge, which was wholly inappropriate given the circumstances—no punishment at all, to be perfectly honest. What kind of justice is that for the 13-year-old boy who was abused? The whole saga was made worse by the fact that nothing could be done to appeal the sentence because of the charging of that offence. This is an obvious anomaly that needs fixing, and it could be easily done. It is accepted that the scheme has grown in a haphazard fashion and that that has given rise to inconsistencies. I therefore hope the scheme will be widened further.

I also hope, like my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning), that the time limit for the scheme will be changed, because 28 days is very little time for someone to find out about a case and get their objections to the Attorney General. Sometimes, victims do not find out in time about the sentence or they may not be aware that it can be appealed until it is too late. I know that Families Fighting for Justice supports the change, and I have previously tabled amendments to Bills to try to achieve it. I appreciate that the period cannot be indefinite, but the very strict 28 days has meant that some criminals have certainly evaded real justice.

Jean Taylor, the campaigner from Families Fighting for Justice, has had some terrible examples. People have been convicted of serious crimes such as murder and not been able to have their cases considered again because of the strict 28-day limit. I therefore hope that the Government will revisit the scheme, and I congratulate my right hon. Friend for bringing this matter to the House’s attention.

17:02

[Julian Knight (Solihull) (Con)]

It is a great pleasure to serve under your chairmanship, Mr Davies; I apologise for arriving two or three minutes late for the debate. I congratulate my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) on securing this important debate and bringing his expertise to bear.

Upholding the rule of law is one of the fundamental duties of any Government. It is essential that every citizen knows that the law is on their side and that public safety is the top priority. Solihull has recently experienced a rise in crime, especially so-called acquisitive crimes such as aggravated burglaries, car crime and carjacking. Although our community is a safe and friendly one, we face a real challenge of criminals driving into Solihull from elsewhere in the west midlands. I have heard it said in many parts of my constituency there is frankly a loss of faith in the criminal justice system at this time, facing this rise in crime and also perhaps in seeing some of the sentences handed out.

An excessively lenient sentence lets down not only the victim of the original crime but everybody put at risk when somebody is left on the streets who should be behind bars. Indeed, a short sentence can be the worst of all possible worlds, exposing the convict to hardened criminals and imbuing them to a life of crime, without serving as a proper, efficient deterrent.

Of course, an independent judiciary is the foundation stone of our justice system, and rightly so, but the law is laid down by Parliament and, through Parliament, by the people. It is therefore right that mechanisms such as the unduly lenient sentence scheme exist to allow the Attorney General’s Office to intervene where sentences do not properly reflect the strength of public feeling about a particular crime.

I echo the views of hon. Members about the much wider scope. Let us take one example. One area talks about “some serious fraud”. How do we decide how much of something is serious fraud? Is it about the impact on the individual or just about the scale in monetary terms? What about an old lady who will not answer her door or answer any correspondence and becomes a recluse because of what she has suffered? She may have been through a small financial theft or fraud—perhaps a few hundred pounds—but that has a significant impact on her life. How do we decide on the seriousness in those respects? The system needs to be tidied up and based on more clarity, with better openness for the public so that they can regain and boost their confidence in the judicial system.

As my right hon. Friend the Member for Hemel Hempstead suggested, the 28-day period for appeal seems arbitrary. Although I realise there has to be an end date, it should not be scuppered by reporting restrictions. It seems obtuse in many regards that we have a situation where criminals are effectively beyond the reach of the system because of something put in place potentially to protect victims.

I hope that the message from this debate is loud and clear: although the system is welcome, and the Attorney General’s work in it is to be praised, I passionately believe that we need to look at this again and see how we can amend the definitions and improve the system to bring about greater confidence. In many respects, unduly lenient sentences need to be clamped down upon as soon as they occur. That sends a message to the judiciary as well: that the public have frankly had enough of unduly lenient sentences and it needs to act.

17:06

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Davies. I, too, congratulate the right hon. Member for Hemel Hempstead (Sir Mike Penning) on securing this debate. He makes a powerful and persuasive case.

To cut to the chase, clearly the point the right hon. Gentleman makes about unreported sentences and the strict application of the 28-day rule is unanswerable. That definitely needs fixing. However, the main question he has asked us today is: why should the category of case in which a prosecution can appeal against unduly lenient sentences be limited? As hon. Members have set out, the Attorney General can refer unduly lenient sentences to the Court of Appeal, but only where offences are triable on indictment or are one of a restricted number of specified “either way” offences. The right hon. Gentleman made a powerful case as to why that should change. There seems little logic in such restrictions, so could they be lifted?

I know there are always dangers in comparing the two legal systems, but let me briefly mention the position in Scotland, which I think is relevant and may assist the right hon. Gentleman’s case. The right to appeal against sentences in Scotland is contained in the Criminal Procedure (Scotland) Act 1995.

[Sir Mike Penning]

I am a great advocate of devolution—I was a Minister involved in devolution. This is a devolved matter; this is about English courts and Welsh courts. I do not really understand why, in the limited time we have for this debate, the hon. Gentleman is going to talk about what is going on in the Scottish courts. We can have a debate on that another day. This is about English and Welsh courts.

[Geraint Davies (in the Chair)]

Order. This is a matter for the Chair. The Scottish National party is entitled to respond to the debate. I invite Mr McDonald to continue.

[Stuart C. McDonald]

Thank you, Mr Davies. If the right hon. Gentleman is patient, he will hear that I am trying to support his case by saying that there are no restrictions in Scotland, and the system works. I will also explain changes made there that may provide some ideas for how it could be made to work in England.

As I said, the right to appeal against unduly lenient sentences in Scotland is contained in the Criminal Procedure (Scotland) Act 1995. On the face of that legislation, there are no limits to the class of cases on indictment where the prosecutor can appeal sentences on the grounds of undue leniency. However, in summary cases, the right applies only to a class of case specified by order made by the Secretary of State.

On the face of it, exactly the same situation applies in England and Wales. However, for whatever reason—I do not know what the reasons were at the time—when the order was made in 1996, the class of case specified was effectively “any case”. In short, all sentences, whether on indictment or summary proceedings, can be appealed by the prosecutor. In fairness, that has not clogged up the courts there or indeed the prisons, so I think that is a separate issue. As far as I am aware, it has never been suggested since that limits be applied to such rights to appeal unduly lenient sentences. Some more recent reforms may also be relevant to the current debate; they were designed to make the court processes more sustainable, with significant changes taking place after wide-ranging reviews of both civil and criminal court processes.

In fact, it was a review of civil procedure that prompted the introduction of a new appeal tier, a Sheriff Appeal Court. To assist in ensuring that the High Court and Court of Session focused on the work it truly needed to focus on, the new Sheriff Appeal Court established in 2015 was given the task not only of taking on civil appeals work, but of hearing summary criminal appeals, including appeals against sentence, from both sheriff and justice of the peace courts. Whereas, in the past, sentencing appeals from summary cases would go to the High Court of Appeal, they now go to the new national Sheriff Appeal Court. In short, to answer the right hon. Gentleman’s point, what the Government should consider is whether, at the same time as extending the prosecutor’s right of appeal in “either way” cases, one way to make it work more effectively and efficiently without clogging up the Court of Appeal is to look for an alternative forum for such appeals against unduly lenient sentences.

17:11

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Davies. I refer Members to my relevant entry in the Register of Members’ Financial Interests, indicating that I am a non-practising door tenant at Civitas Law in Cardiff.

I congratulate the right hon. Member for Hemel Hempstead (Sir Mike Penning) on securing the debate, and on the considered way in which he introduced it. I know he has carried out a number of ministerial roles; I remember in particular his role that combined both justice and policing. While I might not always have agreed with him, I always thought he carried out the job in extremely good faith, and it is good to see him making this contribution from the Back Benches today. He described well how the system works, with the right of appeal for defendants and the unduly lenient sentence scheme as it stands. I wholly agree with him on the question of public understanding of, and confidence in, the working of the scheme and of how victims are communicated with throughout the process, whether by the courts system, the Crown Prosecution Service or their lawyers. The need for clarity is vital, and I am sure the Solicitor General will be able to touch on it in his closing remarks.

There was also a good contribution from the hon. Member for Henley (John Howell). I know the job he does on the Justice Committee, on which I served briefly in 2015, and he identified well the role of the Committee as a statutory consultee as we set the sentencing framework. That is important, and it is crucial that the Justice Committee makes its views known at that stage, as it can only assist with consistency in sentencing.

I thought there was a thread running through all the other contributions to the debate, whether from the hon. Member for Solihull (Julian Knight), the hon. Member for Shipley (Philip Davies), the hon. Member for North Devon (Peter Heaton-Jones) or the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald). The real sense was about clarity, consistency and public understanding, which are vital to our criminal justice system. If I may say so, it was also a pleasure to hear from the hon. Member for Strangford (Jim Shannon), who spoke powerfully about his 30 years of public service and the thousands of cases with various sentencing decisions that he has dealt with in Northern Ireland.

Coming to the issue of the unduly lenient sentence scheme, the Solicitor General will be aware of the 19 terror- related offences added to the scheme on 8 August this year. The statistics are instructive, and I looked them up prior to the debate. There is no doubt that the number of requests is increasing, although that is partly due to sentences being added to the scheme. In 2010 there were 342, in 2015 there were 713 and last year—the most recent set of statistics available—the figure was up to about 837. In 2015, of those 713 requests, 136 were referred to the Court of Appeal—[Interruption.]

[Geraint Davies (in the Chair)]

Order. The sitting is suspended for 15 minutes for the Division. If there is a second vote, it will be suspended for a further 10 minutes.

17:14

Sitting suspended for a Division in the House.

17:19

On resuming—

[Nick Thomas-Symonds]

I was referring to the statistics about the number of cases that have been referred to the Court of Appeal and subsequent increases. In 2015 there were 136 referrals, and 102 sentences were increased. In 2016, which is the most recent year for which there are statistics, 190 cases were referred and 141 sentences were increased.

I raise those statistics to put the debate in context. Each year, there are about 80,000 Crown court cases. I agree that there is a need for clarity and confidence in the system, which has come through powerfully in all the contributions. We need that at the police and investigation stage, at the charging stage—a number of Members referred to charging issues—and when cases are proceeding through the courts, as well as in the trial process, in the sentencing process and in terms of the options available at sentencing. It is vital that all those things are communicated. The hon. Member for North Devon raised the issue of reporting restrictions. There have to be ways to ensure that victims and their families are still aware of what has happened and get an explanation for why a particular sentence has been imposed.

All those things are very important, but I come back to the fact that in 2016, there were 141 increased sentences and 80,000 Crown court cases. We have to look at where there have been issues with sentences that fall outside the reasonable band.

[Sir Mike Penning]

Using statistics is a wonderful thing. As a Minister, you get them thrown at you all the time. With all due respect, the shadow Minister is not comparing like with like. We can only use the figure of how many sentences are appealed if every one of those 80,000 cases is appealable, and they are not. That is the problem. I understand where he is coming from. We do not want the courts swamped. I do not think they would be, but I am still looking for the evidence from the Justice Department. We are not comparing like with like.

[Nick Thomas-Symonds]

As a matter of fact, it is obviously the case that the unduly lenient sentence scheme does not cover the entire 80,000 cases. I totally accept that. That is absolutely correct.

[Philip Davies]

The hon. Gentleman seems to be running away with the idea that, of all these cases, only very few are deemed unduly lenient. We must make it clear that these sentences can only be appealed if they are unduly lenient. Sentences may well be lenient, but they cannot be appealed. There could be many more sentences that are lenient. These are just ones that happen to be unduly lenient.

[Nick Thomas-Symonds]

The hon. Gentleman is quite right, but that applies the other way as well. If the defendant appeals something, as long as it is within a reasonable band, it will not be appealable the other way either. The reasonable band exists to bring certainty and consistency to sentencing, which all of us in this House who believe in the rule of law should want.

I take the point entirely that the unduly lenient sentencing scheme does not cover 80,000 cases. None the less, there are thousands of cases where the judiciary, within the sentencing framework it has, does a good job, and we should not lose sight of the fact that we should be backing our judiciary.

[Geraint Davies (in the Chair)]

Before inviting the Solicitor General to respond, I point out that the debate will end at 5.42 pm.

17:36

[The Solicitor General (Robert Buckland)]

Thank you, Mr Davies. Diolch yn fawr iawn. It is a pleasure to speak in the debate and I congratulate my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) on securing it. He and I worked together in Government on a number of issues relating to victims, and I pay tribute to him for his sterling work during his years of service. He continues that work as a senior Back Bencher, bringing important issues to the attention of the House. I thank all right hon. and hon. Members for taking part in the debate.

I think it was actually my right hon. Friend the Member for Hemel Hempstead who quite rightly said at the beginning of the debate that this is not a party political issue. In that spirit, I welcome some of the comments by the hon. Member for Torfaen (Nick Thomas-Symonds), who was right to remind us that, in the majority of cases, judges apply the law as consistently as they can, but that they are applying it on a case-by-case basis in an independent manner. I think all of us in the House and beyond want to see that when it comes to upholding the rule of law.

My hon. Friend the Member for Henley (John Howell) mentioned sentencing guidelines, which are a very important development in the law. That now means that, regardless of whether someone is sentenced in Truro or Merthyr Tydfil, there should be a consistency of approach; there sometimes was not in the past, quite frankly, and I think sentencing guidelines are helping to change that approach.

On the ambit of that scheme, I should remind hon. Members of its origins. It is only about 30 years of age, and it arose as a result of the famous Ealing vicarage case, in which the late Jill Saward was the victim of a horrendous rape. As a result of the outcry and the campaign that was launched, the law was changed in 1988 and the scheme was developed. It was originally very tightly constrained and applied only to a few very serious indictable-only offences, such as murder.

However, over the years it has developed in a somewhat piecemeal manner, and I readily accept that there are anomalies, inconsistencies and matters that need clarification, because the system, although I think it attracts a high degree of confidence from the public at large, could do with strengthening. I can think of no better way of strengthening it than by giving it more consistency, and therefore accessibility to members of the public who might wish to use it.

The scheme’s introduction was not without controversy. It is unusual, if not exceptional, for a member of the Executive, such as the Attorney General or me, to be able to request the judiciary to reconsider a matter that has been dealt with by a court. Rightly so; that needs to be carefully circumscribed. It is not a right of appeal; it is a right of referral, and I beg to suggest that there is a difference between the two. A referral is, if hon. Members like, like a safety valve that exists in the system to make sure that, where there has been gross error or the sort of sentence that no reasonable court should have passed, there can be intervention from a higher court in order to correct it.

Much has been made—I accept the comments by my hon. Friend the Member for North Devon (Peter Heaton-Jones)—of the threshold applied by the Law Officers in dealing with unduly lenient sentences. I think the threshold should be rigorous and should be high. My concern is that if we departed from the degree of information and evidence that is currently needed, we would end up in a situation in which judges would be routinely second-guessed in a way that I think would encroach on their independence. We have to be very careful about that when dealing with this system.

I take great pride in my work with regard to unduly lenient sentences. It is difficult work, and I am grateful to my hon. Friend the Member for Shipley (Philip Davies) for his work on it. There are cases in which something has quite clearly gone wrong and needs rectifying, and the Court of Appeal assists in that regard.

I find the most difficult cases to be the sort that my hon. Friend the Member for North Devon raised, in which, for example, a bereaved family have suffered the shock and horror of losing a loved one in a road traffic incident. As a result of that tragedy, nothing the court can actually do could restore that family to the position they want to be in. However, I accept his point that there is an inconsistency when offences of careless driving cannot be referred, yet an offence of careless driving where there is evidence of impairment through drink or drugs, for example, can be referred. He made his point very powerfully, and we are listening.

Similarly, my hon. Friend the Member for Shipley made the point about sexual offences committed in breach of trust. That is a very important and concerning anomaly, which again is one of the reasons why I prefaced my remarks by speaking about the need for clarity and consistency. Attractive though it might be to go down the line advocated by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), to extend the scheme in England and Wales to all offences in the Crown court and magistrates courts would be a step too far. That is why I am attracted by arguments that create consistency in the Crown court.

Let me look at the figures. It is the case that 12,800 or so indictable-only offences were sentenced in the Crown court last year. That is probably a pretty reasonable benchmark to start looking at the incidences of unduly lenient sentences. It does not include the either-way offences that might come to the Crown court or might be the subject of references, but it gives us an indication of the proportion of cases that are successfully referred.

The hon. Member for Torfaen went through some of the figures that we have. He is right to say that in the last year for which we have full figures, 837 cases were drawn to our attention and 190 of them were taken to the Court of Appeal, with an increase in 141 of the sentences. It seems to me, looking at the figures and doing the best I can, that over the last few years there has been a dramatic expansion in the number of cases brought to our attention and a roughly proportionate increase in the number of cases then successfully referred, so I do not think that my Department can be accused of playing politics with the role that we occupy. We apply the law very carefully, and I think that that important and proportionate rise indicates that we use our powers, as you would expect, Mr Davies, in a way that is consistent with our adherence to the rule of law.

I am glad that awareness of the scheme has been growing, because both the Attorney General and I, supported by our office, work very hard to ensure that that awareness increases. It is consistent with the principle of open and transparent justice that we work to ensure that news about successful references is publicised, particularly in local media. We undertake a round of interviews with local media and use social media to discuss these issues. As a result, the scheme’s profile continues to rise.

Both the Attorney General and I personally present cases in the Court of Appeal. Only a few months ago, I presented the case of Paterson, the breast cancer surgeon who was responsible for the mutilation of victims who were supposed to be in his care. In a week or so, I will go to the Court of Appeal to present another case of an unduly lenient sentence. I think it is important that the Law Officers, whenever they can, personally attend to present cases before that Court. I take particular pride in that role.

I remind myself that I was a sentencer. I sat as a recorder of the Crown court for years before I became Solicitor General. I therefore know the particular challenges that face judges who have to pass sentence, which allows me to understand in a particularly helpful way their position and the delicacy of the balance that needs to be struck.

I take the opportunity to remind everyone that of course anyone—any member of the public—may contact our office about an unduly lenient sentence. No special connection with the case is needed, and it only takes one request for a case to be considered. If there is a victim referral and I decide not to refer the case, a personal letter will be sent to that person, explaining carefully the reasons why. Communication is a very important part of the process, as the shadow Solicitor General said.

Let me move on to deal with reporting restrictions. Obviously, the starting point in all criminal proceedings is the open justice principle. In a very limited number of cases, as we heard, there are reporting restrictions, so in the new year, for a period of six months, we will pilot a trial of the Crown Prosecution Service referring all cases in which there is a restriction on the reporting of the sentence or sentences. That will allow the Attorney General or me to consider personally each case in which there is potentially unduly lenient sentencing, so that no sentence slips through the cracks in the way that my right hon. Friend the Member for Hemel Hempstead outlined.

For those reasons, I commend the unduly lenient sentence system to the House and ask that hon. Members carry on supporting it and promoting its effectiveness.

17:42

[Sir Mike Penning]

I thank the Solicitor General for moving significantly on this matter. I know how difficult that may have been, given the negotiations with other Departments, some of which I may have been a Minister in myself. I know that in relation to some of the things that I have asked for, there are real concerns in other Departments. But I come back to the victims. The victims do not want the thresholds changed. They just want a level playing field. They want to know that justice is being served—that the system does what it says on the tin. It is vital, when they go to court, that they are being represented and they know what is going on. I—

17:42

Motion lapsed, and sitting adjourned without Question put (Standing Order No. 10(14)).