Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.

One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.

Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.

Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.

My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.

I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.

However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.

I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.

The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.

The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.

These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.

I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments all refer to the unduly lenient sentence scheme, which is set out in Sections 35 and 36 of the Criminal Justice Act 1988. It allows anyone to ask for certain sentences imposed by the Crown Court to be considered by the law officers where the sentence is felt to be unduly lenient. The law officers—it is ultimately their decision, for reasons I will come back to—may then decide to refer the case to the Court of Appeal. Once it gets there, it is a matter for the Court of Appeal to decide whether the sentence should be increased.

I should underline that it is not a right available to anyone to ask the court to reconsider the sentence. The way the system works is that the request is made to the law officers; their role is to ask the court to increase the sentence. That was set out deliberately and rightly in the scheme. We prosecute in this country in the name of the Crown; we do not have, with very few exceptions, private criminal prosecutions. The instances of the scheme going wrong or people not knowing about it, as we have just heard in the cases of Tracey Hanson and the appalling murder of her son Josh, and the terrible attack on Claire in front of her young daughter, are terrible to hear about. One can only imagine the consequences for those families.

I therefore understand the motivation behind Amendment 196A. It is critical that victims, prosecuting authorities and members of the public are aware of the ULS scheme. I heard the noble Baroness, Lady Brinton, talk about a lack of clarity. She quite rightly referred to the revised Code of Practice for Victims of Crime, or the victims’ code—I am grateful to her for doing so—which came into force on 1 April this year. It provides victims with the right to be informed about the existence of the scheme and includes, as we heard, a requirement for the witness care unit to inform victims about the scheme promptly when sentencing takes place. In addition, the Crown Prosecution Service references the scheme in its leaflet entitled Information for Victims. There is provision in place to ensure that victims and their families are informed of the scheme.

It is not the case that it is left to victims or bereaved families to contact the law officers. The Crown Prosecution Service can and does make requests directly to the Attorney-General for cases to be referred to the Court of Appeal in instances where the prosecuting authority considers the sentence to be unduly lenient. Those requests are considered by my right honourable and learned friend the Attorney-General in the way that she considers all such requests. While I understand the motivation behind Amendment 196A, I suggest that it is not required.