Police, Crime, Sentencing and Courts Bill (Twelfth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 10th June 2021 Public Bill Committees

“increase the prison population, which is already under significant strain.”

[Bambos Charalambous (Enfield, Southgate) (Lab)]

My hon. Friend is making an excellent point. Judges know the case and the circumstances of it, so they are better placed to use their discretion, taking into account the particular set of circumstances, which we cannot know about when we are passing something that gives carte blanche on a particular sentence minimum.

[Alex Cunningham]

Yes, that is very much the case. These organisations all make the same point: we are limiting the judges’ discretion. We are limiting the discretion of the individual who best knows the case, as they have actually heard the case, so it is certainly worrying. In fact, in the sentencing White Paper, the Government note that “concerns have been raised”, and that some repeat offenders are receiving too-lenient sentences, but they fall short of naming a single body that supports that view.

In the same vein, rather than presenting the evidence for change, the White Paper highlights only a single statistic in relation to those convicted of a burglary who receive a sentence lower than the minimum three-year term. I am sure I do not have to remind the Minister that that is as single statistic relating to a single offence out of his list of four. I ask him a very simple question: what evidence has he brought to the Committee today to show that judges have been unduly lenient when sentencing repeat offenders in relation to the importation of class A drugs, possession of a knife or offensive weapon or threatening a person with a blade or offensive weapon in public?

The second of the Opposition’s concerns is how the proposed changes to clause 100 will further entrench the already shameful levels of racial disparity in our criminal justice system. As the Minister is all too aware, since the Lammy review was published in September 2017, racial disparity in the criminal justice system has got considerably worse. The statistics speak for themselves. Black offenders are 26% more likely than white offenders to be remanded in custody, while the figure for black women is 29% more likely. Offenders from black, Asian and minority ethnic backgrounds are 81% more likely than white offenders to be sent to prison for indictable offences, even when factoring in higher not guilty plea rates. Over one quarter—27%—of people in prison are from a minority ethnic group, despite the fact that they make up 14% of the total population of England and Wales. If our prison population reflected the ethnic make-up of England and Wales, we would have over 9,000 fewer people in prison—a truly staggering figure.

That is before we even begin to touch on disproportionality in the youth system, which is even more pronounced. For the first time, young people from a BAME background now make up 51%—over half—of those in custody, despite that group making up only 14% of the population. The proportion of black children who are arrested, cautioned or sentenced is now twice what it was 10 years ago, and the proportion of black children on remand in youth custody has increased to over a third.

When my right hon. Friend the Member for Tottenham (Mr Lammy) was asked by the then Conservative Government to carry out his review, he did so in the belief that that Government, and successive Governments, would implement the recommendations he made. Sadly, that was not the case. At the last count, fewer than 10 of the 35 recommendations had been fully implemented. Perhaps the Minister will explain whether that is still the case today and, if so, why the Government have made so little progress on that in the last four years.

The picture emerging from this Government is that they do not care about reducing racial disparities in our criminal justice system, which is not an accusation I make lightly. Statement after statement recognising the disparities and promising change appears to be no more than lip service. Worse still, many of the measures in the Bill will further entrench racial inequality in the criminal justice system—one of them being the introduction of clause 100. It is abundantly clear that the clause will have a disproportionate impact on offenders from a black, Asian or minority ethnic background.

We know from a Government report published in 2016 that for drugs offences the odds of receiving a prison sentence were around 240% higher for black, Asian and minority ethnic offenders than for white offenders. Even the equalities impact assessment that accompanies the Bill acknowledges an over-representation of certain ethnic groups and the increased likelihood of their being sentenced to custody and given a longer sentence. It states:

“We recognise that some individuals with protected characteristics are likely to be over-represented in the groups of people this policy will affect, by virtue of the demographics of the existing offender population.”

--- Later in debate ---

[Alex Cunningham]

I beg to move amendment 131, in clause 104, page 89, line 1, leave out “18” and insert “26”.

This amendment would make provision for minimum term reviews for those who are serving a sentence of detention at Her Majesty’s pleasure to continue to take place up to the age of 26.

As has been pointed out, the purpose of the clause is to alter the way in which sentence reviews are conducted for those serving detention at Her Majesty’s pleasure. As the law stands, a child sentenced to detention at Her Majesty’s pleasure may apply to the High Court to seek a review of their sentence once they have reached the halfway point of the sentence. The purpose of the review is to establish whether the offender has made sufficient progress while in prison for their sentence to be reconsidered. If the offender’s application for a review is unsuccessful, he or she may make a further application every two years until the sentence comes to an end.

The effect of the clause is twofold: first, those who have reached the age of 18 at the time of sentencing will no longer be entitled to a review of their sentence. Secondly, those who are entitled to reviews—in other words, those who were sentenced when a child—will be restricted to a single review at the halfway point and, if they have reached the age of 18 by that stage, they will be entitled to no further reviews.

In their White Paper, the Government set out that the intention behind clause 104 was to spare victims’ families the trauma of having to continually revisit the events that led to the loss of their loved one each time an offender applies for a review. Although we sympathise wholeheartedly with that sentiment, we are also mindful of the need to balance it with the right of young offenders to have their sentence reviewed in the light of good behaviour while in prison.

The Opposition’s first major concern with clause 104 is that we believe that those who commit an offence as a child should be treated as a child by the criminal justice system, irrespective of whether they turn 18 by the time they are sentenced. That view is widely held by stakeholders across the justice sector, as well as by Members across the House. As the Minister will be aware, the hon. Member for Aylesbury (Rob Butler) has promoted a ten-minute rule Bill to achieve just that.

The Labour party is clear that no child should be put at a disadvantage by turning 18 before being sentenced, especially if the delay has been caused by the record-breaking court backlog. That concern is shared by the Sentencing Academy, which notes:

“We have grave concerns about the removal of reviews from people simply because they have reached the age of 18 at the time of sentencing—particularly at a time when cases are taking so long to reach court due to the backlog of cases that has been exacerbated by the pandemic.”

[Bambos Charalambous]

Obviously, delays are not particularly satisfactory for anybody, particularly in the criminal justice system. Long delays are not fair for victims, either, or for young people. As the maxim says, justice delayed is justice denied. Does my hon. Friend agree that the criminal justice system needs more investment so that things are speeded up and young people do not end up being sentenced as adults?

[Alex Cunningham]

I understand exactly what my hon. Friend is saying. However, I know from discussions with the Lord Chancellor that he is very shy about addressing the issue of people receiving an adult sentence for crimes committed under the age of 18 because their case did not get to court until after they had turned 18. He does not appear to have any sympathy for that. I hope that over time we can work with the Government on what happens to children who commit crimes. They should not be disadvantaged by not having their case heard until they become an adult.

The concept of basing minimum term reviews on age at sentencing, rather than on age at the time the crime was committed, has also been rejected by the courts as contrary to the purpose and rationale of the sentence of detention at Her Majesty’s pleasure. As the great Lord Bingham set out in the case of Smith:

“The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation.”

With that in mind, what guarantees can the Minister provide that no child will be put at a disadvantage because of court delays caused by the huge backlog that has accrued on the Conservative Government’s watch? Similarly, does he agree that it would be hugely unfair for children to be worse off because of something completely out of their control?

The Opposition’s second concern with clause 104 is the cliff edge created by the offender turning 18. As I set out at some length during our discussion of clause 102, the Opposition are very mindful of the significant advances made during the past 20 years relating to the age of maturity. As the Minister is all too aware, it is now widely recognised that young adults are still developing their decision making and impulse control skills well into their mid-20s. As I have said before, that is acknowledged not just by the Opposition but by the Justice Committee, neuroscientists, criminologists and, until recently, this very Government. It is somewhat disappointing, then, that the Government have chosen to create a cliff edge whereby anyone who turns 18 suddenly loses the right to have the High Court review their sentence.

That concern is shared by the Sentencing Academy, which points out:

“The accompanying ‘factsheet’ justifies removing reviews from those aged 18 by the time of sentencing on the grounds that: ‘This is because their age and maturity will have been taken into account at their sentencing’. However, it is an accepted feature of sentencing law that the passing of an offender’s 18th birthday is not a cliff edge in terms of their emotional and developmental maturity.”

I must therefore ask the Minister why, when the Government have previously accepted that

“the system…should presume that up to the age of 25 young adults are typically still maturing”,

they have chosen to create this cliff edge at the age of 18. Not only does this seem unfair; it also seems counterproductive. By removing an offender’s right to a review of their sentence based on good behaviour, the Government are also removing any incentive for that offender to behave well in prison. As the Howard League points out, minimum term reviews are infrequent but important, as they

“offer a rare source of hope and can powerfully motivate young people to make and maintain positive change.”

The Sentencing Academy points out that since 2010 fewer than 10% of offenders serving detention at Her Majesty’s pleasure applied for a second review of their sentence. It says of the proposed change:

“this restriction will merely remove the opportunity of review from a small handful of cases in which exceptional progress has been achieved after the halfway point in the sentence”.

Is the Minister not worried that by removing the right to these reviews, he could be putting overworked prison staff at increased risk of harm?

Although we sympathise with the stated goal that the Government are seeking to achieve through clause 104—to prevent unnecessary distress to the families of victims of crime—in its present form we are unable to support it. Instead, we have tabled amendment 131, which we believe balances the need to protect the families of victims of crime from distress with preserving the rehabilitative benefits of being able to request a sentence review. The mechanics of the amendment are simple. Instead of ending the right to a sentence review at the age of 18, the amendment would make provision for minimum term reviews up to the age of 26, reflecting the widely held view that young adults are still developing in maturity well into their twenties, while also providing a powerful incentive to motivate young offenders to reform and rehabilitate while in custody.

I look forward to hearing the Minister’s response.