Police, Crime, Sentencing and Courts Bill

Debate between Viscount Hailsham and Lord Sandhurst

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

[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.

[Lord Sandhurst (Con)]

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

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

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