Draft Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Gareth Bacon Excerpts

Tuesday 23rd January 2024 General Committees

[The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)]

I beg to move,

That the Committee has considered the draft Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023.

It is a pleasure to serve under your chairmanship, Mr Vickers. Last July, my right hon. and learned Friend the Lord Chancellor made a written statement to this House announcing the publication of the full Government response to the independent domestic homicide sentencing review undertaken by Clare Wade KC. The response announced a package of proposed reforms to ensure that the seriousness of domestic homicides is reflected in our sentencing framework. The draft regulations before us today are the first step in implementing those important changes.

In 2021, Clare Wade KC was commissioned to review sentencing in domestic homicide cases to establish whether the law and sentencing guidelines were fit for purpose. That followed concerns raised by a number of stakeholders, including the Domestic Abuse Commissioner and the Victims’ Commissioner, and by Carole Gould and Julie Devey, the mothers of two young women, Ellie Gould and Poppy Devey- Waterhouse, who were tragically murdered by their former partners in 2018 and 2019 respectively. I would like to take this opportunity to pay tribute to Carole and Julie for their tireless campaigning following the deaths of their daughters, and to Clare Wade KC for her work on this important review.

About a quarter of all homicides in England and Wales are classed as domestic: that is, they are committed by the partner or ex-partner or a relative of the victim. Over the past 10 years, that represents an average of nearly 160 homicides a year, with almost 90 of those being committed by a partner or ex-partner. The majority of domestic homicides are committed by men against women. In many of these cases, the victim has been subjected to years of abuse before their death and many also involve sustained and excessive violence towards the victim, which I will refer to in this debate as “overkill”. When female perpetrators commit domestic homicide, they have often, although not exclusively, been the victims of abuse and have killed their abuser.

The legal framework for sentencing for murder is primarily contained in schedule 21 to the Sentencing Act 2020. Schedule 21 was first introduced in the Criminal Justice Act 2003, more than 20 years ago, and contains the factors to which the court must have regard when assessing the seriousness of murder. Although it always remains open to judges to consider aggravating and mitigating factors not contained in schedule 21, the schedule does not include any specific consideration of the seriousness of domestic homicides and the abuse that often precedes such cases. Over the last 20 years our societal and legal understanding of domestic abuse has evolved. The Government have made controlling or coercive behaviour in an intimate or family relationship a criminal offence under the Serious Crime Act 2015, and introduced the landmark Domestic Abuse Act 2021, which created a legal definition of domestic abuse for the first time and made non-fatal strangulation a criminal offence.

We are also delivering on our rape review action plan, tackling violence against women and girls strategy and tackling domestic abuse strategy, and more than quadrupling funding for victim and witness support services by 2024-25, up from £41 million in 2009-10. However, as Clare Wade KC highlights in her review, our sentencing framework for murder does not yet fully reflect the increased seriousness that society now recognises in offending committed in a domestic context. Nor does it adequately account for the reduced culpability of a victim of abuse who snaps and kills their abuser. The measures that the regulations introduce will change that.

First, the draft regulations introduce both a statutory aggravating factor and a statutory mitigating factor for murder in relation to controlling or coercive behaviour. Cases of domestic murder are rarely isolated incidents. They are often the culmination of years of abuse underpinned by coercion and control. In the majority of cases, although not all, the abuse has been committed by the perpetrator of the murder, who is usually a man, against the victim, who is usually a woman. The new statutory aggravating factor will apply in those cases where an abusive partner or family member has killed their victim, in recognition of the seriousness of the preceding abuse and the experience of the victim before death.

However, a minority of cases involve a victim of abuse who has killed their abuser, often after years or even decades of abuse. In most of those cases, the perpetrator of the killing and the victim of the abuse is a woman. The new statutory mitigating factor will apply in those cases where a victim of abuse has killed their abuser, in recognition of their experience of abuse which preceded the killing and its impact on their culpability.

Secondly, the statutory instrument introduces a statutory aggravating factor for murder in relation to overkill, which it refers to as “sustained and excessive violence”. The prevalence of overkill in domestic murders is striking. It was identified in more than half the murder cases analysed for the review. In all but one of those cases, the perpetrator was male, and in more than two thirds, the perpetrator had also exhibited coercive or controlling behaviour towards the victim. Overkill causes intense distress to victims’ families. The horror of overkill, and the anguish that knowing that the body of their loved one was violated in such a way causes victims’ families, will now be recognised in statute.

Although the SI is an important first step in the Government’s response to the domestic homicide sentencing review, it forms part of a wider package of measures that we are taking forward in response to the recommendations made by Clare Wade KC.

The final legislative measure in the package is being taken forward separately in the Criminal Justice Bill. It will make the connection between a murder and the end of a relationship, or the victim’s intention to end a relationship, a statutory aggravating factor. In 40% of the murder cases analysed for the review, the murder occurred at the end, or perceived end, of the relationship. In all those cases, the perpetrator was male. Killing in those cases is the final controlling act of an abusive partner and its seriousness will now be recognised in law.

[Kevin Brennan (Cardiff West) (Lab)]

When describing the overkill provision in the statutory instrument, the Minister referred to the body of the victim. That matter was raised in our recent consideration of the Victims and Prisoners Bill. Is the provision applicable when such desecration took place after death, or does it apply only if it happened during the course of the murder?

[Gareth Bacon]

It will be applicable if the desecration took place after death as well as during the course of the murder, because the state of the body causes anguish to the relatives who are left behind.

As part of the Government’s response to the review, my right hon. and learned Friend the Lord Chancellor wrote to the independent Sentencing Council to propose that they revise their guidelines in the light of the recommendations and the Government’s response to them. I am glad to inform hon. Members that in response, the Sentencing Council is consulting on amending the aggravating and mitigating factors in the manslaughter sentencing guidelines to include a history of controlling or coercive behaviour. That consultation also seeks views on adding an aggravating factor to the manslaughter sentencing guidelines for strangulation, suffocation or asphyxiation.

Finally, the Lord Chancellor has invited the Law Commission to undertake a review of the use of defences for murder in cases involving domestic abuse, and to consider in particular whether there is any evidence to suggest that defences are used in different ways, or to different effect, depending on the gender of the defendant.

Although I hope that hon. Members will support the Government’s important changes in response to Clare Wade KC’s review, I recognise that some Members may want us to go further. We have therefore launched a public consultation to ensure that all options are fully explored. We recognise that there are issues and options that would benefit from further consideration, beyond the recommendations made in the review. The consultation seeks views on a minimum term starting point for murders preceded by controlling or coercive behaviour against the victim, and for all murders committed with a knife or other weapon. The consultation will close on 4 March and the Government will carefully consider the responses to determine whether further reform is required. We will update the House on the outcome of the consultation in due course.

Murder is the most serious crime that a person can commit, and we must ensure that in every case the sentence is commensurate with the seriousness of the crime. Our sentencing framework must reflect the seriousness of violence and abuse committed by those closest to the victims.

I commend the regulations to the Committee.

--- Later in debate ---

[Gareth Bacon]

I thank the hon. Member for Cardiff West for the Opposition’s support for an important SI. He raised several points, which I will attempt to answer in order.

We covered one aspect of overkill. The hon. Gentleman asked whether it would apply to all cases of murder. The short answer is that it will. All statutory aggravating factors in schedule 21 apply to all murders, and that will be the case for overkill. We anticipate that most cases captured by the change will be domestic murders, but the provision will apply in every case.

The hon. Gentleman asked about progress on the other recommendations. He specifically asked why all the measures in response to the DHSR are not being introduced in the same legislative vehicle. The new aggravating factors in the SI were announced in the Government’s interim response to the DHSR last March. At that time, no primary legislative vehicle was available, so we committed to acting quickly and introducing the legislation as soon as we could. The measure in the Criminal Justice Bill to make murder at the end of a relationship a statutory aggravating factor was announced in the Government’s full response to the review in July and was included in the King’s Speech. It was not possible to include the measure in the SI without delaying its introduction due to the consultation that is required. That is why we have done that in a slightly different way. We decided to proceed with the SI to ensure that important changes could be made as soon as possible, and to include the final measure in the Criminal Justice Bill.

The new statutory mitigating factor relating to controlling or coercive behaviour was announced in the Government’s full response in July. Due to its similarity to the equivalent aggravating factor, it was possible to include it in the consultation with the Sentencing Council without delaying its introduction. That is a long way of saying that speed led to its inclusion.

The hon. Gentleman asked whether we should have wholesale rather than piecemeal reform. We do not accept that the SI represents a piecemeal change. It is part of a package of reforms that the Government are introducing at the same time to update schedule 21 in response to an independent review. As he knows, it was an in-depth review, which Clare Wade KC undertook, that involved extensive research and engagement with stakeholders across the sector. The review found that schedule 21 needed to be updated to reflect our improved societal and legal understanding of fatal domestic abuse. That is exactly what we are doing. That does not preclude a future review of schedule 21, but the Government took the view that the priority was to change the law now, rather than delay.

The hon. Gentleman touched on cost and the £100 million. As he said, that is over 40 years. The Ministry of Justice’s annual budget is £14 billion, so although £100 million sounds like a lot of money in isolation, compared with the overall budget, it is not as much as he suggests.

The hon. Gentleman asked about longer sentences and pointed out that the impact assessment estimates that the measures will require a set number of prison places. The good news is that that will not be for at least 15 years because the measure will not kick in as an aggravating factor until beyond the minimum term for a murder conviction, which is 15 years.

The hon. Gentleman also mentioned public infrastructure, particularly with regard to prison places. The Government are currently engaged in the largest expansion of the prison estate since the Victorian era, with £4 billion being invested in creating 20,000 additional prison places.

The hon. Gentleman was correct that I do not have a brief on his final point about parental responsibility because it is not within the confines of the SI. As he suggested, I will write to him by the end of next week with a full response on that.

Question put and agreed to.