Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Tuesday 12th December 2023 Grand Committee

Considered in Grand Committee

17:15

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, around a quarter of homicides in this country are domestic homicides, where one spouse or partner, or ex-spouse or ex-partner, is killed by the other. In recent years, there has rightly been a considerable focus on these tragic cases. We have had a number of particularly tragic instances, such as when Poppy Waterhouse and Ellie Gould were killed by their ex-boyfriends in 2018 and 2019 respectively, and that of Sally Challen, who killed her husband after years of domestic abuse and whose conviction for murder was replaced by a conviction for manslaughter in 2019.

The law of murder in such cases is currently being reviewed by the Law Commission at the request of the Lord Chancellor. Today, we are concerned not with the law itself but with sentencing. The statutory framework for sentencing in murder cases is to be found in Schedule 21 to the Sentencing Act 2020, replacing earlier legislation, as supplemented by guidelines of the Sentencing Council. However, hitherto, nothing in Schedule 21 has specifically addressed domestic homicide.

In the light of all this background, in 2021 the Government asked Clare Wade KC to conduct an independent review of domestic homicide sentencing. The Wade review was published in March 2023, and the Government’s final response was published in July 2023. Today’s instrument takes forward Clare Wade’s recommendations 5 and 8.

Regulation 3 of this statutory instrument deals with a murder that has occurred where there is coercive and controlling behaviour in a domestic context by the offender. It provides that such behaviour will be an aggravating factor for the purposes of paragraph 9 of Schedule 21, which sets out the statutory framework for dealing with aggravating factors. The instrument further provides that, where the situation is the other way round, and the coercive and controlling behaviour has been on the victim’s part—typically, where it is the woman who has killed the man—the fact that the woman has killed having been subject to coercive and controlling behaviour shall be a statutory mitigating factor for the offender subject to such behaviour for the purposes of paragraph 10 of Schedule 21.

In addition, regulation 3 of the draft instrument implements recommendation 8 of the Wade report, which deals with a situation known in shorthand—and, I must say, completely inadequately described—as “overkill”. This arises in cases, particularly at the end of a relationship, where the offender, typically the man, kills the woman in circumstances of extreme violence, defined in the instrument as “sustained and excessive violence”. That too will be a statutory aggravating factor. As I understand it, some 40% of domestic homicide cases occur at the end of a relationship, when the rage and anger are so intense that these very unfortunate and excessive situations arise.

[Lord Beith (LD)]

My Lords, I am sorry to interrupt the Minister while he is introducing the regulations. I am slightly worried that there is confusion over the ending of a relationship, which was a separate recommendation of the Wade report that is not dealt with in these instruments.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Beith, for that intervention. There is a further aspect of information that I would like to share with the Committee to deal with the very point the noble Lord has raised, for which I thank him.

I have explained the statutory instrument before us, but I need to complete the picture for the Committee. In the Criminal Justice Bill, which is already before the other place, there is a provision that deals explicitly with murders committed at the end of a relationship, defining it as in itself an aggravating factor. Your Lordships may well ask whether it seems a little bit piecemeal that we have this statutory instrument and something in the forthcoming Bill. That point was quite understandably made by the Secondary Legislation Scrutiny Committee in its consideration of this instrument. What happened was that the two recommendations that we are dealing with were accepted in the Government’s interim report by the previous Lord Chancellor, and when the present Lord Chancellor succeeded to the post he thought that we should go further. Therefore, it is in the forthcoming Bill.

However, that is not quite the end of the story—this is a continuing story—so I tell your Lordships for information and by way of background that there is another aspect of the sentencing exercise called the starting point: the level of the “tariff” at which you start. For these kinds of domestic murders, the Government commenced a consultation in November to consider the possible reform of the provisions dealing with the starting point in Schedule 21 to the 2020 Act. I should say that these developments are in response to continuing concerns by stakeholders, particularly victims and their families, about the response of the law to these very difficult cases. The Government are listening to those concerns and continuing to address the issue. However, as I indicated, the statutory instrument before us adopts the two recommendations of the Wade report. I therefore commend the instrument to the Committee and beg to move.

[Lord Beith (LD)]

I am very grateful to the Minister for his introduction and his helpful and illuminating response on the matters that I raised in my intervention. As he said, these regulations carry out the intention to address murder related to domestic violence and coercion. The intention was expressed in Schedule 23 to the Sentencing Act 2020 and follows the Clare Wade report. We support these provisions, which take into account the context of controlling and coercive behaviour in relationships, treating them as an aggravating factor in sentencing for murder or, in the case of a murder by a victim of a controlling relationship, as a mitigating factor.

The regulations introduce the concept of overkill—a word which bothers me as much as it did the Minister as being inadequate to describe the use of violence in excess of what would have been required to kill the victim—as an aggravating factor, not least because of the deeply distressing impact of some of these horrific murders on victims’ families.

However, I have some concerns. I begin with those raised by the Secondary Legislation Scrutiny Committee, one of which has been referred to by the Minister. The reference to consultation with the Sentencing Council blandly and misleadingly fails to mention the council’s concerns, including about the wording of the overkill provision. The Explanatory Memorandum should explain using all the relevant facts. It should not obscure by omission. I presume the revised wording has met some of the council’s concerns, but I would be grateful for some clarification of that as it was raised quite forcefully by the scrutiny committee.

The scrutiny committee also questioned the failure to include other provisions proposed in the Government’s response to the Wade review. We had a helpful explanation from the Minister that things are moving on and that the new Lord Chancellor has indeed taken up the concerns and included them in draft legislation. Indeed, I was a bit surprised by the Government’s defence that the earlier omission of some of the recommendations was because these statutory instruments were an interim response, but I will not criticise further because there is obviously progress on that front. I rather agree with the committee that

“in general, it is better policymaking to make all related changes at the same time”.

More than that, I argue that it makes for more coherent legislation if you put things in the same piece of legislation.

In supporting these provisions, I must, however, make clear what they cannot do. In the first case, they cannot and should not remove the judge’s ability to take into account all the relevant circumstances of the case when passing sentence. Justice should not be blind or deaf to the many different issues that may emerge in evidence or in mitigation. The judge must justify deviation from the guidelines but must be free to do justice.

Secondly, we should not deceive ourselves or the public with the pretence that these provisions will have a powerful deterrent effect. Justice has many purposes, including punishment and rehabilitation, but deterrence is scarcely a major factor for this kind of crime. Someone who, having used enough violence to kill the victim, carries on to inflict more violence is not going to think, “Oh, I’ll get a slightly longer sentence, won’t I, because of that statutory instrument?” That is not the real world; it is not the mindset of those who would carry out such terrible and vengeful acts.

That brings me to my final point. For the murders we are talking about, the murderers need in many cases to be imprisoned for long periods for public safety, including the safety of other potential victims of the same kind of crime, but adding a few more years to the sentence may only marginally, if at all, add to public safety and will do nothing to protect safety when they are eventually released. The extra years are added to recognise the greater severity of the offence, and we add them because they are almost the only means we know of recognising that severity and marking it with a more severe penalty. It would appear ethically bland if we treated different murders in exactly the same way, but what we actually do is allocate significant resources to keeping somebody in prison for a bit longer in a hopelessly overcrowded prison system, in which resources are desperately needed for rehabilitation to reduce the risk of reoffending when offenders are released.

As a society, we need to look for more effective ways of recognising and challenging crimes of varying degree and asserting that they will not be tolerated, otherwise we are condemned to endless sentence inflation because sentences for one crime affect sentences for another. It will not be long before comparison is made between these crimes and some other crimes and an argument for longer sentences for them. We have a problem as a society in finding ways of recognising the greater severity of some crimes than others that do not simply commit resources in an ineffective way when those resources are needed to secure public safety.

As I said, we support these provisions, but room must be left for judicial discretion and there must be some recognition that we do not cure crimes simply by passing statutory instruments such as this.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for introducing this statutory instrument. The Labour Party supports these regulations.

As we have just had explained to us, the instrument introduces two additional statutory aggravating factors and one additional statutory mitigating factor in the determination of the minimum term relating to the mandatory life sentence for murder. The new aggravating factors are the fact that the offender had repeatedly or continuously engaged in behaviour towards the victim that was controlling or coercive and the use of sustained and excessive violence towards the victim. The new mitigating factor is the fact that the victim had repeatedly or continuously engaged in behaviour towards the offender that was controlling or coercive.

17:30

The noble Lord, Lord Beith, very adequately covered the points made by the Secondary Legislation Select Committee on its reservations about the piecemeal approach to these various changes. The Minister answered those points and acknowledged the point made by the SLSC, so I will not dwell on that point again.

However, I want to dwell on some of the points that the noble Lord, Lord Beith, made in his speech just now. We all come at this with different experiences of the criminal justice system. As noble Lords know, I sit as a magistrate and have done so for about 18 years now. I see domestic violence permeate so much of the work I do as a magistrate. I see that in youth courts, family courts and adult courts. We are more conscious of it than when I first started 18 years ago. Of course, we are talking about an extreme here—murder—but it is absolutely not unusual for women, usually, to make allegations about partners or former partners, and that is a dominating factor in the cases which we hear in those various environments in which I sit.

I agree with the point which the noble Lord made about how these guidelines should not remove the ability of judges to sentence and deviate from the guidelines. Of course they should give reasons if they do that, but each case is different, and guidelines are guidelines, not tramlines, as we all know. That point is worth repeating. I also agree with the point made by the noble Lord, Lord Beith, that in these particular cases, deterrence is unlikely to affect the ultimate outcome. We need to be realistic about that. It is difficult to acknowledge, but it is reality, that different types of murder need to be treated differently, and the way the judge sums up the murder and gives the reason for the sentence reflects society’s view of the way that murder should be treated. So this is useful for judges. Of course, they make extremely difficult decisions, and guidance which is up to date and acknowledges the reality of many people’s lives, particularly women’s lives, is a good thing.

In conclusion, I will talk about sentence inflation. In fact, just before this session, I listened to the Lord Chancellor addressing the All-Party Parliamentary Group on Penal Affairs about his general approach. I think it is fair to say that everyone in the room thought it was a breath of fresh air compared to some recent previous Lords Chancellor. There are some very real and substantial problems within the wider prison estate, and there is a problem with overcrowding, of which we are well aware. I was comforted by the fact that the Lord Chancellor understands these problems very well. As I said, the Labour Party is happy to support these changes which we are talking about in this SI because it is right that the overwhelming importance of domestic violence should be acknowledged and properly reflected in sentencing guidelines. As the Minister said in opening—I will just repeat the stat he gave—one-quarter of all homicides in this country are domestic-related. That is a terrible fact, but I suspect it has not changed for many, many years, although it has been acknowledged more only in recent years.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their important contributions. I venture to suggest that we all in many ways share an analysis of the nature of the problem and that we are working, I hope collaboratively, to arrive at solutions on very difficult issues.

I will deal in so far as I can with the various points made. I can tell your Lordships that there was a very full exchange with the Sentencing Council. As I understand, it was concerned among other things with exactly how “overkill” is defined, or that sort of point. The question is: how far should you go into all that in the Explanatory Memorandum? Maybe it was a bit skimpy; if so, the Government will take that very much into account. However, the Sentencing Council’s views have been fully taken into account and they are reflected in the instrument. I do not anticipate any disagreement from the Sentencing Council’s point of view with this statutory instrument.

Secondly, as both noble Lords have rightly said, these regulations do not in any way cut down the discretion of the judge in a particular case to consider all the circumstances that he thinks fit. They will always take into account all relevant circumstances, but they provide important statutory reinforcement of the approach that should be made in domestic homicide cases. As the noble Lord, Lord Ponsonby, rightly said, and as I think is common knowledge, we have had domestic violence cases as a substantial proportion of all murder cases for years and years—probably for centuries. However, we have become much better informed. I nearly said we have also become much better equipped, but I do not quite mean that; we have become much more able to understand the situation—I will put it like that—and draw appropriate conclusions than perhaps has been the case in the past.

As I think I said in opening, this is still work in progress. We are still working on aspects of this—on sentencing and, in due course, we will be working on aspects of the law of murder itself, whether we should have just one law for murder, or ways of distinguishing better between different circumstances. That, I think, is a question for another day.

On the general question of sentencing, I want to say, respectfully, that I acknowledge the force of the careful remarks made by the noble Lord, Lord Beith, on this issue. I think, respectfully, that today is not the day for a general debate on sentencing policy, but we have very difficult issues in this area. There are always the questions of public safety, deterrence and rehabilitation, but there are also questions of public outrage and anguish. How do we deal with those?

From a personal point of view, it is very nearly impossible to disregard public outrage and anguish as factors in the circumstances when the court comes to consider what it should do. That is a fact. We are certainly in a situation where, for some time now, sentences have been growing longer. That has produced pressures on the prison estate, which have been further complicated by Covid and by the increased numbers of police officers, who are arresting more people than they were before. We have all sorts of things to deal with. These are difficult matters, which will merit full debate on another occasion. I have endeavoured to deal as far as I can—otherwise, I hope your Lordships will forgive me—with the points made this afternoon. I commend this instrument to the Committee.

Motion agreed.