Sentencing (Pre-Consolidation Amendments) Bill

Alex Cunningham Excerpts

3rd reading & Committee stage & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons
Thursday 4th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

The Bill seeks to pave the way for the consolidation of sentencing procedural law in the forthcoming sentencing code. Currently, when passing sentence, a sentencing judge must consider the sentencing law that was applicable at the time of the offence. Given the number of different pieces of sentencing legislation passed over the years, that is often a complicated exercise. When reviewing that area, the Law Commission discovered 1,300 pages of legislation governing sentencing in this country. When it conducted a review in 2012, it discovered that errors were made in sentencing in 36% of cases, we think as a consequence of the extraordinary complexity of having to work out which piece of sentencing law applied at the time of the offence. Therefore, given the concept behind the sentencing code and its essential precursor, the Bill will ensure that a single set of sentencing legislation is applicable at the time of sentence, to which sentencing judges may refer.

The Law Commission was asked to look at this issue in September 2014. After Herculean labours it reported back in late 2018, but as a consequence of various general elections and other constitutional disruption, only in 2020 do we finally enact this Bill. I put on record my thanks to the Law Commissioners for their work, and particularly Professor David Ormerod, QC, for the enormous amount of work he has done in preparing the sentencing code for which this Bill paves the way.

As I understand it there are no amendments to the Bill’s five clauses, but I will briefly speak to each clause—I will be extremely concise. There are two substantive clauses. Clause 1(3) contains a clean sweep provision that removes those historical layers of sentencing law legislation to which I referred, so that when the sentencing code is enacted, which will be soon, sentencing courts will no longer need to refer to the historical versions of sentencing law in place at the time of the offence, and can instead refer to the sentencing code that was in force at the time of sentence.

We are, of course, extremely mindful of the well-established common law right that no offender should be subject to a heavier penalty at the point of sentence than was in force at the time of the offence. That right is enshrined in article 7 of the European convention on human rights, but the common law right long predates that. Therefore, in recognition of that important principle, there are a series of exemptions to ensure that no offender will suffer a heavier penalty than would otherwise have been the case. Those are expressed in clause 1(4) and (5), and in a wider list of exemptions enumerated in schedule 1.

Clause 2, the second substantive clause, essentially makes a series of amendments and modifications to existing sentencing legislation. Those are enumerated in schedule 2, which is quite long, and they essentially correct minor errors, streamlining sentencing procedural law. For example, they change language to avoid inconsistency and update statutory references. Because any consolidation must operate on the current law, we need to make those changes to enable the consolidation to happen in a technically correct way. They are therefore all essentially technical amendments to ensure that legislation works in the way that is intended.

I stress that the provisions of neither clause 1 nor clause 2 make any substantive changes to sentencing law. They do not increase or reduce the penalties for any particular offence; they simply clarify the way that sentencing law is available to judges to use when they pass sentence. It is a procedural simplification. Nothing in the Bill changes the actual level of sentences that are available to the courts to pass down.

Clause 3 is a technical interpretation clause, clarifying what is meant by the various definitions and phrases used in the Bill. Clause 4 provides regulation-making powers in the Bill, if any changes need to be made that are necessary for the implementation of the sentencing code and for no other purpose. Any such statutory instruments would be made by the affirmative procedure.

Finally, clause 5 sets out the commencement provisions. Although, of course, the regulation-making powers will have effect upon gaining Royal Assent, the wider force of the Bill takes effect only when the sentencing code has been passed. The sentencing Bill enacting the code will be before the House relatively shortly.

I do not wish to detain the Committee any longer discussing clauses to which no amendments have been tabled, but I hope that gives the Committee a flavour of the clauses’ operative effect. This is a piece of extremely important legislation that I think the entire legal community will strongly welcome. It is a shame that it could not have been introduced any earlier, but we are doing so today, and it will greatly improve the operation of criminal sentencing in this jurisdiction. I urge the Committee to agree that clauses 1 to 5 stand part of the Bill.

[Alex Cunningham (Stockton North) (Lab)]

This is the first piece of legislation that I am leading on as a shadow Justice Minister, and I am sure that it will be the first of many over the coming months, particularly given the Government’s legislative programme and the need for action in so many parts of our justice system. It is very clear to me, and to others, that the Government are facing a series of crises, from the impact of the coronavirus in prisons to the huge backlog of cases in the Courts and Tribunals Service, which had reached over 1 million, months before the pandemic. Much action is clearly needed.

I join the Minister in thanking the Law Commission and others who have been working so diligently on preparing this material. As has already been said, this is a largely technical and uncontroversial Bill and we have tabled no amendments. We agree that we cannot continue with complicated and complex guidance on sentencing, which is resulting in unfair sentences that are causing further problems, such as costs and delays in justice processes. Our current system is in no way perfect, by any measure. A near-dysfunctional mess of mixed legislation and amendments has, over time, led to wrong sentencing decisions resulting in lengthy and costly appeals, adding more and more stress to what is an overburdened justice and court system, as I referred to earlier. There must be a standard approach to provide clarity.

Offenders receiving unlawful sentences is unacceptable. That could mean offenders receiving more lenient sentences than the law says they should receive, or it could mean an excessive prison sentence outside of the guidelines for the particular offence committed. The Minister pointed out earlier that the survey showed that 36% of sentences were seen to be wrong. That is unacceptable in a just judicial system.

--- Later in debate ---

[Alex Cunningham]

I very much welcomed the Minister’s comments in Committee and his attitude on how we can work together to create good law in this place as part of his and my brief. The same, of course, applies to the Lord Chancellor, but we will continue to do our best to hold the Government properly to account.

Everyone across the House can, I believe, welcome the progress of this Bill today. Its provisions have long been called for by the professions, and we all hope that the simplification brought in by this and the Sentencing Bill and code itself will put an end to the high proportion of wrong decisions made on sentencing. Likewise, we hope to see an end to the tremendous workload created in the Court of Appeal, dealing with the mistakes, and an end to the many cases where people are not being handed the sentences that they actually deserve.

I very much welcomed the fact that the Lord Chancellor focused on the defendant, because they are the people who are at the sharp end when it comes to sentencing. We should never ever lose sight of the fact that, when we are dealing with these matters, we are dealing with people’s lives.

This Bill coupled with the Sentencing Bill, which creates the actual sentencing code, should make that whole system more efficient and assist in dealing with the backlog of cases which have only been added to during the current pandemic. I recognise that the Government are struggling with the escalating backlog in courts and tribunals. As I said, over 1 million cases are awaiting process in courts and tribunals, and that was at the end of 2019, before we had the effects of coronavirus. As Ministers know, this has been caused by the huge court closure programme, the lack of interpreters, and other problems, but there is no doubt that today’s legislation will contribute to better and speedier justice and reduce congestion and backlog in the courts over the coming years. As I said, I look forward in the coming weeks to learning how Ministers will address the huge backlog and whether the Minister will review the court closure programme and shorter sitting hours of many courts.

Virtual courts are part of the answer and the Minister in Committee addressed that, but they do not work in all contexts. We have seen cases halted because the system did not work in a fair and just way. The Opposition believe that the adoption of virtual proceedings, which have been heavily used using during covid-19, should never have a detrimental effect on the people participating, including defendants. I would appreciate clarity from Ministers—perhaps not now, but on another occasion—about whether they are concerned about the discrepancy in sentencing between physical and virtual proceedings, whether today’s new legislation will help to rectify that, and whether they will address this issue. I ask that specifically because I believe that while the sentencing code is much needed and welcomed, we must consider other issues that have an impact on sentencing and the environment that the sentencing code will operate in. I hope that Ministers will be able to have a clear conversation with us on virtual justice and the impact on sentencing, as it is an issue that the Opposition most certainly will raise time and again.

In conclusion, we know that this Bill and the Sentencing Bill are designed to simplify sentencing and enable the Government and individual lawmakers to do their jobs even better. It would therefore be useful to understand the plans that the Government now have for more general law reform. I look forward to future indications from Ministers about how they plan to do just that—reform further—but today, we are pleased to support the Bill’s passage and take that much needed step to improve the justice process for all.