Unduly Lenient Sentence Scheme

Alex Chalk Excerpts

Tuesday 25th May 2021 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

What a genuine pleasure it is to see you in the Chair, Mr Dowd. I think I speak on behalf of the whole House when I say how pleased we are to see you there.

I commend my hon. Friend the Member for Dartford (Gareth Johnson) for securing a debate on this important topic, and for the force, candour and articulacy that he has brought to this important area—not just today, but for many years. I pay warm tribute to him, particularly for the way that he raised the case of his constituent Gemma Robinson, who was brutally attacked by Joseph Falconer. My hon. Friend read out the sentencing remarks by the judge, who referred to this gratuitous attack and to “jealous and controlling” behaviour. I hope Gemma’s family will know that the shame of those remarks will haunt, and should haunt, Joseph Falconer for the rest of his days. That cowardly and appalling attack is one that we condemn in this House, and that my hon. Friend has drawn to the attention of the House with admirable clarity and eloquence. I thank other hon. Members, too, for raising with great force and conviction their constituents’ concerns about victims who have suffered so grievously,

Let me turn to the specific matter that we are considering today—the unduly lenient sentence scheme. As all hon. Members have said, it is a valuable part of our criminal justice system. It was introduced in 1989, as my hon. Friend the Member for Dartford rightly stated. It has allowed prosecutors, victims of crime and, indeed, members of the public to ask Law Officers to consider referring a sentence imposed by the Crown court to the Court of Appeal for review, and to do so where the sentence is felt to be unduly lenient. If a sentence is referred by Law Officers under the scheme, the Court of Appeal will then review the sentence and may decide that it should be increased. I realise that we all well understand that.

It is important to note—this is a point that the hon. Member for Strangford (Jim Shannon) underscored—that in the vast majority of cases, sentencing judges get it right. Day in, day out they deal with a range of cases that vary in complexity and severity, and I take the opportunity to commend them for their work. Thousands and thousands of cases are dealt with by the Crown court, and a similar number of sentences imposed. Overwhelmingly, the judges get it right.

I pay tribute to the Sentencing Council—I will refer to it in a moment in a little more detail—for its excellent work in developing sentencing guidelines that have provided judges with valuable guidance on deciding appropriate and proportionate sentences. The guidelines are also of assistance to Crown prosecutors who might be speaking to victims who may be interested to know how a case might end up, in terms of the sentence, and to advocates speaking to their clients, because certainty and clarity are an important part of a criminal justice system that does justice to victims.

It is important that the sentencing process is made more consistent, as my hon. Friend the Member for Dartford, who has a distinguished career and practice in this area, well understands. The introduction of the sentencing code last year has helped to enhance the transparency of the sentencing process by bringing together the procedural provisions that courts need to rely on when sentencing offenders and structuring them in an order that follows the chronology of a sentencing hearing. Frankly, the previous system was extremely complicated, and there were an awful lot of opportunities for sentencing judges with the best of intelligence to fall into error. The sentencing code has helped to improve that. However, on the rare occasion when there may have been a gross error in a sentencing decision, the scheme ensures that justice is served, helping to boost confidence in the sentencing process.

Turning now to a few more specifics, the scheme applies to a wide range of the more serious offences dealt with by the Crown court. This includes all indictable-only offences, in other words, those cases that must be tried before judge and jury, and it covers offences such as murder, manslaughter, rape and robbery. I pause to mention that because where hon. Members have referred to specific cases involving murder, those cases are, of course, within the scheme. I will turn in a moment to issues about time limits, and so on, but it is important to note that murder, manslaughter, rape and robbery are all within the scheme. It goes beyond that to certain offences that are triable either way, mainly related to terrorism, violent physical or sexual assaults and drug-related crime. In preparing for this, I wrote down a number of offences that it covers—it is a very long list, and I will not read them all out.

To pick up on the points that my hon. Friend the Member for Dartford made, I do want to set out in a little detail the extent to which the scheme was expanded over recent years. The Government have taken the opportunity to extend the scope of the scheme so that it covers more offences. In August 2017, additional offences included: failing to disclose information about an act of terrorism; fundraising contrary to the Terrorism Act 2000; use of funds in connection with terrorism; money laundering; and weapons training. We extended the scheme to 19 terror-related offences, and to a further nine terror-related offences in January 2018, such as tipping off a terrorist and not complying with a restriction after returning to the UK.

In November 2019, we extended the scheme to 14 more offences, including stalking; harassment involving violence; the possession of indecent images of children; controlling and coercive behaviour; abuse of position of trust in sexual offences; and possession of indecent images. Including these offences in the scheme has helped to ensure that perpetrators of these horrific crimes receive sentences that match the seriousness of their offending behaviour.

The Government continue to keep the scope of the scheme under review and will carefully consider any proposals to extend the scheme to cover more offences. However, as the hon. Member for Strangford correctly indicated, the number of cases that have been referred under the scheme has gone up quite considerably over recent years.

I must stress that the decision to extend the scheme is not a straightforward one, because it is very important—not just to defendants, but also to victims and everyone else—that there is finality in sentencing. The general rule is that a person should expect to serve the sentence a judge has imposed upon them. It should also be recognised that Parliament, in creating the scheme, intended for it to be an exceptional power.

In addition, this scheme has to be set within the wider context in which it sits. The Government have brought forward a wider package of legislative measures in recent years to ensure that the punishment that offenders receive reflects the severity of their crime. To pick up the points that the hon. Member for Lewisham West and Penge (Ellie Reeves) quite rightly made when she was talking about violence against women, it is worth taking a moment to reflect on what is now criminal which was not 10 years ago.

Forget the ULS scheme; first of all we must ensure that it is an offence. More than 10 years ago, it was not an offence to carry out upskirting. It was not an offence to exert coercive control. It was not an offence to stalk. It was not an offence to send revenge porn or threaten to do so. It was not a specific offence to take part in non-fatal strangulation. It was not a specific offence to assault an emergency worker. There is an enormous amount that has changed over recent years to ensure that people who do commit crime can be punished for it. I could add plenty of others, such as causing death by careless driving. That is the first point.

The second point is that over the past 10 years, there has been a significant increase in sentencing to ensure that the punishment fits the crime. There are longer sentences for stalking, desecrating war memorials, and animal welfare crimes. It used to be the case, as recently as 15 years ago, that although someone would get a life sentence, the minimum period that they would serve before being eligible for parole was normally 15 years. Now, if a knife is used in the crime, it is a starting point of 25 years, and if a firearm is used, the starting point is 30 years. It is important to stress that there is not automatic release at the end of that period; that is the earliest point at which they are eligible for parole. So we have more offences and longer sentences.

Defendants are also required to spend longer in custody. We enacted the sentences for offenders of particular concern provision, ending automatic release for terrorism and child sex offenders, and ensuring that convicted terrorists spend a minimum of two thirds of their term behind bars before being considered for release by the Parole Board. We have taken action to ensure that offenders sentenced for serious sexual and violent offences spend longer in custody. Last year, we delivered the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which ended automatic release from custody at the halfway point for offenders given a standard determinate sentence of seven years or more for a serious violence or sexual offence that carries a maximum penalty of life.

The hon. Member for Lewisham West and Penge raised the issue of rape. It is important to note that under these provisions, if the individual is sentenced to seven years or more, they will now serve much longer. Although I genuinely welcome her points on this—we all want to see robust sentences in respect of those who attack women, and particularly for sex crimes—we have had to address a situation brought about by section 244 of the Criminal Justice Act 2003, whereby people who committed that kind of crime would be released at the halfway point. It is a really important step to maintain confidence in the criminal justice system by ensuring that people are not automatically released at the halfway point. That was the situation that we inherited, and that is the situation we have changed.

[Stephanie Peacock]

Does the Minister agree that there should be a minimum sentence for rape?

[Alex Chalk]

We would happily look at a minimum sentence for rape. There are minimum sentences for firearms and third-strike burglary. Respectfully, it would sound more credible if we had had support on that issue on Second Reading of the Police, Crime, Sentencing and Courts Bill to provide longer sentences for those who commit these appalling crimes. I do not question for a second the commitment across this House to ensuring that those who commit appalling offences serve their time, but there are ways we can do it, and it requires everyone to step up and vote for it.

To deliver on our manifesto commitments to make punishments tougher for the most serious offenders and end automatic halfway release from prison for serious crimes, we recently introduced the Police, Crime, Sentencing and Courts Bill to Parliament. Measures in the Bill would ensure that serious sexual and violent offenders who receive a standard determinate sentence of four years or more serve two thirds of their sentence in custody, aligning their release point with serious violent and sexual offenders sentenced to seven years or more.

To recap: more offences, longer sentences, longer in custody. But we have gone further, because we have longer licence periods as well. We have brought in a wider range of terrorism offences within the scope of the extended determinate sentence. No longer is it the case that someone is released on licence until the end of their sentence. In certain cases, that licence period will be extended so that they know that if they transgress again, offend against the public, betray innocents, betray trust or destroy lives, they can expect to be punished again.

The victims code has rightly been referred to. The Government are taking action to ensure that victims are supported at every stage of the criminal justice system. The new victims code came into force on 1 April, and it sets out 12 key rights for all victims of crime. I respectfully urge right hon. and hon. Members to have a look at it if they ever get a moment. It is the culmination of two years of extensive work, including wide stakeholder engagement with victims and victims groups to ensure we have a clear and comprehensive framework for victims’ rights. The hon. Member for Barnsley East (Stephanie Peacock) made an important point about the awareness of this, and she is right to do so. Awareness is critically important, so let me take the opportunity in this place to emphasise that right 9 is the right to be given information about the outcome of the case and any appeals. Right 9.4 says:

“If you think the sentence given to the offender is far too low”—

that’s the heading—

“For some (but not all) cases sentenced in the Crown Court you can ask the Attorney General to refer the sentence to the Court of Appeal to reconsider it. This can only be done if the Attorney General thinks that the sentence was not just lenient but ‘unduly lenient’, such that the sentencing judge made a gross error or imposed a sentence outside the range of sentences reasonably available in the circumstances of the case.”

It goes on, but I will not read the whole thing out. We all have a duty to amplify and publicise that, and I take my opportunity to do so today.

Later this year, we will consult on the detail of the victims Bill announced in the Queen’s Speech, which will enshrine those 12 key rights in law and hold agencies accountable for delivering those rights to victims, with a view to their publishing a draft Bill for pre-legislative scrutiny. The draft Bill will set expectations for the standard and availability of victim support. Let me say also, because it was an important point, that the hon. Member for Lewisham West and Penge picked up in her powerful remarks what can be the context for appalling crimes such as murder, namely, gateway offences of domestic abuse and so on.

We are investing record amounts in support for victims: more than £300 million this year, including £27 million to recruit 700 independent sexual violence advisers and independent domestic violence advisers, in an increase of more than 40%. That is important because we want to ensure that women—it is usually women, frankly—who are the victims of domestic abuse have the opportunity and support to go out and support the prosecution that leads to that individual being taken out of circulation, if that is the will of the court and the proportionate and appropriate sentence. That means that the individual does not go on to commit further appalling crimes.

My hon. Friend the Member for Dartford referred to his specific constituent’s case, the dreadful case of Joseph Falconer. He and other hon. and right hon. Members made the point about time limits. It is important to note that in the circumstances that he referred to—where, say, a judge has imposed a contempt of court order and reporting restrictions because to report on the case might lead to a miscarriage of justice elsewhere—the CPS automatically sends to the Attorney General’s office a summary of that case and it is then reviewed. So that takes place as a matter of course to deal with precisely that point. When it comes to deferred sentence, the clock only starts ticking on the date the substantive sentence takes effect. Those are two aspects that I hope provide my hon. Friend with some comfort.

I accept, however, that there is a wider issue about ticking clocks. We have to weigh up the balance of our criminal justice system and recognise, as a matter of conscience, that where an individual has been convicted, punished and disgraced at the hands of the state, they need to know the maximum extent of his punishment, save in truly exceptional circumstances. There are cases, of course, when even if he is given a long sentence—tough—he is going to get a longer one because that is what the Court of Appeal says. None the less, in the majority of cases, it is important that when that person stands up and is told what his sentence is he has a sense that that is the sentence he is going to get.

The other important point is for victims as well. Those people who have built themselves up to this moment, to the sentencing hearing, which can be a moment of great distress, want to know that that is it. A sigh of relief; this is over. We need to weigh that in the balance to ensure that there is a measure of finality.

My hon. Friend made an excellent point about the youth court and he talked in particular about the issue of rape and the extent to which that could somehow be taken outside the unduly lenient scheme. He made a powerful point about that. It is important to note that for those very rare cases that are dealt with in the youth court because, for the sake of argument, the offender is aged 13, for example, if the court decides, having learned about the offending, that it is so serious that the maximum penalty of two years with a detention and training order is insufficient, they do now have power—I have checked—to commit that to the Crown court. It was previously under section 53 of the Criminal Justice and Courts Act 2015, but that has been superseded by the sentencing code legislation.

Let me close by saying that if people are to have confidence in the criminal justice system, it is critical not only that people are convicted for the wrongs that they have done but that they are required to serve a sentence that reflects the indignation, anger and upset that we feel as a society on their behalf. Sentences are longer, and more offences have been created. People are serving longer in custody, and there is the opportunity for longer licence periods as well. We are extending the unduly lenient system to ensure that justice can be done, and of course we will continue to keep the matter under review. As we do so, we will have the remarks made by right hon. and hon. Members in this House firmly in mind.