Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Debate between Lord Bellamy and Lord Beith

Tuesday 12th December 2023 Grand 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.

Legal Services Act 2007 (Approved Regulator) Order 2023

Debate between Lord Bellamy and Lord Beith

Tuesday 12th December 2023 Grand Committee

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

My Lords, I have to confess that I struggle to find anything interesting to say about this statutory instrument.

Under the Legal Services Act 2007, the Legal Services Board oversees various approved regulators for persons providing legal services. They are designated under Schedule 4 to the Act. In 2009, the Association of Chartered Certified Accountants—ACCA—was designated for the regulation of probate activities. It did not embark on any regulatory activities until 2018, when it found that the uptake was extremely low: it granted authorisations for probate to only 99 persons. At that point, the association discovered that the costs of regulating were very high and it therefore determined that it would withdraw from that activity. It applied to the Legal Services Board in October 2021 to cease to be designated as an approved regulator. The Legal Services Board approved that request on condition that the 99 persons already approved had either ceased to practise or been transferred to another regulator, mainly CILEx Regulation. That condition having been fulfilled, the Legal Services Board asked the Lord Chancellor to regulate the situation by removing the designation of the ACCA under the Act. This statutory instrument now rounds off that process and terminates its authorisation, which is to all intents and purposes redundant anyway. I beg to move.

[Lord Beith (LD)]

My Lords, it is indeed difficult to find many interesting things to say about this instrument, except perhaps that it has taken more than two years to get to this point after the ACCA decided that its members did not want to be either engaged in or regulated in respect of probate work. However, I have a question about CILEX that puzzles me.

The transitional arrangement is that some people will be or have been transferred to CILEx Regulation. CILEx Regulation is itself the subject of a consultation, which ended in November, because it has been proposed that it should be transferred to the Solicitors Regulation Authority—a much larger body. What will that mean? Will accountants, or staff of accountants’ offices, be transferred to CILEx Regulation by the Solicitors Regulation Authority, or will some other transitional arrangement be made for them? The Minister is studying his papers; I hope he has an answer to the question.

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[Lord Bellamy (Con)]

My Lords, I think I have only one question to deal with, on the transitional arrangements for the 99 persons with whom we are concerned. My understanding—I will write to the noble Lord if my understanding is wrong—is that these persons have already been or are being transferred, so they are subject to an appropriate regulatory structure.

There is an issue in that there is some kind of dispute between CILEX and CILEx Regulation, which regulates it. That is an ongoing matter that will be resolved in due course by the Legal Services Board, or perhaps it will recommend a solution to the Minister. As I understand it, it is not appropriate for the Government to comment at this stage on how that will be sorted out. CILEX wants to be transferred to the Solicitors Regulation Authority, whereas CILEx Regulation is resisting that. It is an unresolved, ongoing dispute that is separate from the issue we are discussing, but the Government’s position is to stand away from it while the regulatory bodies sort it out between themselves. I do not know whether I have managed to approach the noble Lord’s question—

[Lord Beith (LD)]

I thank the Minister for his helpful answer. It would be helpful to have reassurance from the Government that, in so far as there are still people from this background engaged in probate work, they will continue to be regulated and know by whom they are regulated.

[Lord Bellamy (Con)]

As far as I am aware, I can reassure the noble Lord that they will continue to be regulated appropriately. If there is any further information that I need to convey, I will write to noble Lords accordingly.

Sentencing Act 2020 (Special Procedures for Community and Suspended Sentence Orders) Regulations 2023

Debate between Lord Bellamy and Lord Beith

Monday 26th June 2023 Grand Committee

[Lord Beith (LD)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for initiating this debate. I welcome his contribution and that of the noble Lord, Lord Jackson. I am not a million miles from either of their views either, but I emphasise that I value the progress that we are making with the three courts on the aims of the White Paper. I want to give it a fair wind, because we need to carry out these experiments.

I share some of the reservations of the Secondary Legislation Scrutiny Committee about some of the problems: the inadequacy of the Explanatory Memorandum; the failure to identify the resources that are needed, which are spread across government, so this is a pretty important question; and the failure to set out a systematic means of evaluation. What is the point in an experiment if you do not evaluate it properly and independently? Those who operated the experiment should not be the judges of its success.

I have a long-term interest in the development of problem-solving courts as an alternative to periods of imprisonment for some offenders—periods of imprisonment that did nothing to change the lives of such offenders. When I was chair of the Justice Committee in the Commons, I had the opportunity to visit a number of such courts, including the North Liverpool Community Justice Centre. Why do we not have a proper evaluation of that yet? The noble Lord, Lord Jackson, mentioned that point. Reoffending rates alone do not explain why the full potential of that experiment was not realised. I could see certain things that were working well when I looked at it, including the access it gave offenders to services that they needed and that are physically located within the court complex. When a judge can send an offender off to someone who can provide an addiction service or help them with their housing problem, it facilitates progress towards an orderly life for people whose lives are chaotic. We need to know what was lacking or what more could have been done to make that experiment more successful.

I also observed the Red Hook court in New York and problem-solving courts in Seattle; Portland, Oregon; and Houston, Texas. Texas was really interesting, because Republicans and Democrats there both agreed that they were wasting the taxpayer’s dollar on periods of imprisonment for people whose lives were not being changed by that imprisonment. The political divide fell away as the two parties and the wings of those parties agreed that the taxpayer’s dollar should be used for something that might work better. Hence there was a real political investment in developing problem-solving courts.

In observing these various courts, I was struck by some general points that proved important. One I have already mentioned: access to services—such as addiction treatment, housing, education and employment—which offenders had found it difficult to access or had not even tried to access before they were convicted. That is crucial.

The second is a review process overseen by the same judge, who often became an important authority figure in offenders’ lives and had a capacity to hold them to account for the changes that they needed to make in their lives.

A feature that is not attempted in these proposals—I have some doubts about it, but it was interesting to observe it in Texas—is a court-room full of other offenders, who would applaud an offender who had got a clean bill of health, because he was clean of drugs and had not reoffended since the last time he came before the judge. All the people waiting for their cases to be heard would clap at that point and give him encouragement. Of course, if the reverse was true and the offender had failed, they might be sympathetic, but the Texas marshals were there to take the offender away for imprisonment, which was the consequence of not keeping up with requirements that the judge had set. The cultivation of a common feeling of “let’s try to make this work and change our lives” was really valuable.

Today, we are authorising more limited experiments in two courts for men and one for women. They will not deliver improvement unless there are adequate resources available from the Ministry of Justice through the Probation and Courts Services. Then, of course, there is the hope of an eventual shift in resources from prisons to probation, for example, but also from a wide range of other departments that will need to become involved in offenders’ lives if we are going to try to change them; that includes housing, education and health services.

All this is taking place against a background of declining confidence in the courts in community sentences. I sit on the House of Lords Justice and Home Affairs Committee, which, as the noble Lord, Lord Ponsonby, pointed out, is currently carrying out an inquiry. There has been a lot of public evidence already indicating that, as a proportion of sentences, there is a decline in the use of community sentences; this suggests a lack of judicial confidence in them. That must change; it needs to change for the system as a whole, but it certainly needs to change in the context of these three courts.

This is potentially an important and valuable experiment. As well as the resourcing and valuation issues that I have mentioned, it will need judicial continuity, with the same judge dealing with individuals over the period of their sentence. It will also need confidence to be built in the quality of community sentencing, addiction services and other services. The courts need to be better informed about what services are available and how good and reliable they are, as well as how appropriate they are to the kind of offender that they may want to attach to them. It will place considerable requirements on the Probation Service, which is seriously overstretched at the moment throughout the country, and will pose challenges for local authorities, the health service and other providers of services. However, we need to do it and I wish it well. We need an effective alternative to expensive, ineffective prison sentences for some offenders.

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

My Lords, I am extremely grateful to all noble Lords who have contributed to this debate in such a constructive and thoughtful way. I am particularly grateful to the noble Lord, Lord Ponsonby, whose Motion gave rise to it.

First, I will briefly address the concerns raised, notably by the noble Lord, Lord Beith, about the Explanatory Memorandum. I am happy to acknowledge that, in this case, the Explanatory Memorandum was somewhat thin and did not meet the required standard. My officials have, I think, been able to provide answers to the committee’s satisfaction. We are working to ensure that future memoranda do not encounter a similar problem. Internal training is being undertaken and we will shortly have a meeting with the clerk of the relevant committee to understand what its requirements are. I hope that these various measures will deal with the problem, but I apologise for the fact that the committee felt it necessary to draw the House’s attention to this statutory instrument.

Let me explain briefly some of the background to this instrument; I hope also to deal with the points that have been raised. We are piloting three ISCs: two are focused on offenders with substance misuse and one is focused on female offenders. I place particular importance on the female offender court, which is at magistrates’ level in Birmingham. To take one particular point, in the earlier sentencing White Paper of 2020, the Government committed to piloting up to five schemes; we did not commit to five or more, I think. It is partly a question of resource, but the view has been taken that we should try to do three properly now rather than risk spreading resource too thinly; of course, that leaves open the possibility of the programme being expanded later if it is successful, but I hope that this is a solid and important start. I am glad to hear that, in general, noble Lords welcome this step forward.

I mention, I hope relevantly, four particular features of the programme. The first is close judicial monitoring by the same judge. The noble Lord, Lord Ponsonby, my noble friend Lord Jackson and, I think, the noble Lord, Lord Beith, raised the importance of continuity from a judicial point of view; it is crucial. I am sure that the MoJ will take away that point—it was made very forcefully by your Lordships, who collectively represent a wealth of experience in this area—and ensure that it happens. That is indeed a mainstay of the proposal.

The second feature is a particular emphasis on continuity and personal probation supervision so that there is always that particular continuity. As has been explained to me—to my personal satisfaction, I must say—it is in this respect something of a return to the old system of probation, whereby you had one probation officer who looked after you, took you all the way through the court process and was in direct touch with the judge, rather than there being, as I understand has happened to some extent in recent times, a sort of split within the Probation Service between the court team that prepares the reports and the supervisors who are out in the community, with a certain lack of communication in that process. It is very important that there should be the continuity of a single probation officer. Of course, at the same time—this is one of the reasons why the experiment is perhaps not as expansive as it might be—you do need to fully involve local authorities, other support services and so forth. We need to be sure that agencies have, as it were, signed up to and bought into the whole process for it to work.

For the substance misuse course, we have a requirement for regular drug testing so that, if there is a risk of someone falling back into such misuse, it will be picked up early.

Fourthly, as the noble Lord, Lord Ponsonby, said, there is not exactly a mixture of carrot and stick but the possibility of imposing sanctions on offenders if they are clearly not observing the rules in a way that merits a sanction.

Your Lordships know the sequence of events. There was a sentencing White Paper in 2020, then there was the 2022 Act and now there are the pilots. The ministry did not exactly invite bids but sought to explore which areas of the country would be interested in undertaking this work. I have to say, the response was not exactly overwhelming because, at the time, the courts were preoccupied with the backlog and after-effects of Covid and all those issues. So we do not, from that point of view, start from a particularly propitious situation. None the less, on each site, a local level, multiagency team has worked together, including the judiciary, probation, the police, the police and crime commissioner, the local authority, third-sector organisations and, of course, MoJ officials.

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[Lord Bellamy (Con)]

My Lords, I was explaining the work with local multiagency teams to make sure that we are delivering a model and a system that will work with a ring-fenced probation resource and a judiciary that will engage in intensive supervision and provide the continuity that has been lacking so far. As I say, this resulted from the sentencing White Paper of 2020 and the 2022 Act.

Against that background, I will take up at least some of the main points raised in the debate by noble Lords. As I say, we have sought to concentrate on what is within our ability to deliver, which is why we have gone for three courts instead of five. There may well be further opportunities to expand that in the future.

It is certainly true that there is an international context, to which attention was rightly drawn. Over the years, it has been difficult to pinpoint exactly how successful some of those international experiments were or are. I regret to say that there was not a full follow-up to the Liverpool experiment of some years ago, so we do not have the data, which is why the evaluation process is so important. All noble Lords referred—and the noble Lord, Lord Ponsonby, and my noble friend Lord Jackson specifically referred—to the importance of evaluation.

There will be an interim process evaluation report next year—2024—a further evaluation report in 2025 and yet a further impact evaluation in 2027. The reason for the further impact evaluation in 2027 is to allow time to give an assessment of the reoffending rate because we want to be sure—or to have some information on—whether people have managed to stay on the straight and narrow for two or three years. That is why the 2027 date is in the evaluation.

There will be a continual process of assessment as we go along. There are governance boards across the three sites to enable local partners and the MoJ to review progress on an ongoing basis, so evaluation is critical to the success of this experiment. It is fair to add that one of the encouraging features in a parallel context, at least in some areas, is the relative success of the FDACs—family drug and alcohol courts. That parallel example is slowly catching on because, unlike this process, they involve very considerable dedication of resources by local authorities and it is has taken them a little while to buy in to the idea, particularly in some parts of the north of England.

[Lord Beith (LD)]

Will the Ministry of Justice be marking its own homework, or will we have some kind of independent basis for the evaluation?

[Lord Bellamy (Con)]

At the moment, the evaluation is an MoJ evaluation, as far as I know. I am sure that we can build in stakeholders. This is not exactly the MoJ’s homework, because the MoJ is not active in doing this; it is judges, the Probation Service, local authorities and so forth. I am sure that if your Lordships attach importance to some objective, third-party look at what we are doing—I can quite see why—that suggestion should be taken very seriously as we move forward.

European Court of Human Rights

Debate between Lord Bellamy and Lord Beith

Monday 5th September 2022 Lords Chamber

[Lord Bellamy (Con)]

While I am on my feet—in view of the political situation, I fully understand why noble Lords want to have a little bit of amusement at my expense—I take this opportunity to thank and congratulate the noble Lord, Lord Foulkes, who has posed this Question, for his work at the Parliamentary Assembly of the Council of Europe. That Assembly plays a very important role in the convention, and the UK plays a very important part in the Assembly. I particularly commend the noble Lord for his work on sport and human rights and his recent report looking at the protection of underage players against risks of abuse and other matters. I thank the noble Lord for his Question.

[Lord Beith (LD)]

Will the Minister confirm that the Government intend to use the Bill introduced in the other House to limit the ability of citizens to use the convention on human rights to safeguard their position against an over-mighty state? Does that not sit very oddly with the victor of the Conservative Party leadership contest quite often asserting her dislike of an over-mighty state? Is this not one of the main protections against it?

[Lord Bellamy (Con)]

It is a protection and will remain a protection. The rights in the convention will continue to be respected and enforced by the courts of the United Kingdom as before.