Police, Crime, Sentencing and Courts Bill

Debate between Viscount Hailsham and Baroness Brinton

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

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

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

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

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

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

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

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

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

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

[Viscount Hailsham (Con)]

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

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

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

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

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

Policing and Crime Bill

Debate between Viscount Hailsham and Baroness Brinton

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Viscount Hailsham]

I really do not think so because it is a question of publication. What is meant by “publication”? It is, I think, different from communication. I think “communication” is a private communication—made, for example, by a police officer to a journalist—and “publication” is a more overt act which happens via the press, the television or whatever. I think they are different. Perhaps that matter could be considered by the noble Lord, Lord Paddick.

The second point concerns gossip. The noble Lord, Lord Pannick, is quite right about this. There will be gossip. Among the great mischiefs are social media and foreign communications, where there is an awful lot of identification. That is a form of gossip that is simply not touched by this amendment and probably cannot be. That is a defect, which I acknowledge even though I support the broad thrust of the amendment.

On the broad thrust, I find the arguments advanced by the noble Lords, Lord Campbell-Savours and Lord Paddick, very persuasive. Harvey Proctor was an old colleague of mine in the House of Commons. We all know that he lost his job and his home, and his reputation has been irreparably damaged by what happened. The publicity regarding Sir Edward Heath is simply absurd but it will taint his long-term reputation. I was PPS to Lord Brittan when he was Chief Secretary to the Treasury. His last days were darkened by the allegations against him, which were wholly groundless. There is therefore a serious mischief that the Committee should seek to address.

The noble Lord, Lord Pannick, has made some important points here but, if he will forgive my saying so, he seems to ignore the principle of proportionality, which should come into play. If we are right in supposing that this is a very serious mischief, we should be cautious about allowing drafting points to stand in the way of confronting it. The question of witnesses coming forward is a proper point. There is no doubt that on occasion, publicity enables witnesses to come forward; that is absolutely true. Surely, though, the proviso in the amendment that would enable the police to go to a judge for the authority to disclose the fact of the accusation addresses that point. Maybe it could be improved upon but the concept of allowing the prohibition to be lifted by a judge is surely a sensible one.

The point the noble Lord makes about the accused person being prohibited from receiving exoneration is a perfectly good one and has substance, but actually it is a drafting point and it would take the noble Lord and myself but a few moments to add the necessary words to the amendment to cover it. I ask the Committee to stand back, look at the extent of the mischief and ask itself whether the drafting objections that have been put forward are sufficiently weighty to stand in the way of our doing justice.

[Baroness Brinton (LD)]

My Lords, many speakers with much more experience than me might wonder why someone who has amendments later in today’s Committee on the rights of and support for victims might wish to speak in support of this amendment. I have experience of cases involving two teachers and very contrasting approaches by the police, both pre-charge and post-charge. The first involved a head teacher who happened to live in the area of his school. A pupil had made a very serious allegation and there was much publicity. Not only did the head teacher and his family have to leave the village but he became seriously ill; in fact he died within two years of the incident going public. It quickly became apparent that this was a fallacious allegation by the pupil, and the police dropped the case. The problem is people. The matter had been all over the local press and radio, and this man’s career was utterly traduced. There is no doubt that it led to the downfall in his health and his subsequent death.

The other case is that of a friend of mine who was abused at his boarding school aged about eight years old. After some decades he finally managed to pluck up the courage to talk to the police, and then the police guidelines were followed. Until after charging there was no advertising at all about the case. At that moment two other pupils from other decades came forward, thus supporting and helping the police and the CPS when they brought their case. Importantly for the initial complainant, they went through only one moment when the entire matter was made public. Had it gone public before then, there would have been repeated incidences in the press and very difficult times until it came to trial.

This is about justice. It is absolutely right that there should be justice where a complaint has been made and no charge follows. However, there is also an issue for the victims and the lives they have to lead if false publicity is given and nothing then follows; they also have to live through substantial amounts of publicity. I do not have the knowledge that the noble Viscount, Lord Hailsham, does, but I support the amendment. If it needs redrafting to finesse it, that is absolutely right—provided that there is the chance at an appropriate moment, and it seems to me that charging is that moment.