Unduly Lenient Sentence Scheme

Gareth Johnson Excerpts

Tuesday 25th May 2021 Westminster Hall

[Gareth Johnson (Dartford) (Con)]

I beg to move,

That this House has considered the scope of the Unduly Lenient Sentence scheme.

It is a pleasure to serve under your chairmanship, Mr Dowd. The unduly lenient sentencing scheme has been in existence since 1989. It was brought in as a result of woefully inadequate sentences imposed by some judges, to the horror of many members of the public. This included, of course, the so-called Ealing vicarage case, in which an offence of rape was treated less seriously than an offence of burglary. Things had to change, and I am pleased to say that they did.

Having spent 20 years working in the criminal justice system myself, I am very aware of the fact that judges generally get things right, but they are human, and mistakes happen. It is right that the defence can appeal sentences that are too harsh, and it must therefore be right that the prosecution can appeal sentences that they feel are wrong too.

There is a blanket right for the defence to appeal against sentences in the magistrates courts, and a right to appeal against sentences imposed in the higher courts. That is right, and that is fair, yet the prosecution has very limited rights to appeal against sentences that are too lenient. It is in this respect that the scales of justice in this country do not balance.

I pay tribute to the fact that the Government have extended the scope of this scheme more than any other. In 2017, 2018 and 2019, the scheme was extended, so we have ensured that many victims of some of the worst crimes can see the sentences in their cases increased to a fair level. The scales of justice are levelling up, but they are not there yet. I hope during this debate to make constructive suggestions about how we can build on that good progress, and how we can continue. While I have raised the issue of unduly lenient sentences in this place several times before, I was prompted to do so again by a particularly harrowing case affecting one of my constituents.

Gemma Robinson from Dartford was attacked in 2019 by her partner, Joseph Falconer, in the most despicable manner. He had previously assaulted her and was subject to a restraining order, but had tricked or cajoled his way both back into her life and into her home. This young lady was described as the life and soul of any party, yet she was mercilessly beaten by Falconer until her eye socket was fractured and her tooth punched through her lip. She was then spat on by him before he left the house and, in the final insult, he completely cleared her bank accounts.

He was, I am pleased to say, arrested and charged with section 18 GBH, an offence that is covered under the unduly lenient sentencing scheme. The matter went to trial, with Mr Falconer having pleaded not guilty. However, Gemma Robinson, feeling unable to face him in court, took her own life—an event that devastated her family. Subsequently, Joseph Falconer was, quite astonishingly, offered a less serious charge under section 20 of Offences against the Person Act 1861—an offence of malicious wounding. This is an offence that is not covered by the unduly lenient sentencing scheme and he pleaded guilty to that charge. Despite being described by the judge in court as a “dangerous, jealous and controlling man”, he was given just three and a half years imprisonment. Gemma’s family understandably felt that this was insufficient and they contacted my office. Only at that stage were they made aware by my office that there was no power to appeal, as malicious wounding under section 20 of Offences against the Person Act 1861 is not covered under the scheme. Incredibly, had Joseph Falconer been charged with coercive behaviour under the harassment legislation, the scheme would have applied.

Gemma Robinson’s family feel totally let down by the system and they are not alone. There are many instances of people applying for a sentence to be reviewed under the scheme only to be told it is an offence that is not covered. In fact, around a third of the applications are not covered by the scheme and the largest number of offences that are applied and are not under the scheme are actually under section 20 for malicious wounding and also for assault occasioning actual bodily harm. There are many quite vicious and violent assaults taking place in this country for which an unduly lenient sentence is imposed. Yet nothing can be done about it by the victims or by anybody else.

Sadly, the injustices do not stop there. There is a strict 28-day time limit on applications to challenge sentences. I fully understand why we need some certainty and why there is a need for time limits, but there is an arbitrary time limit in this particular case and it needs looking at again. Many rules can be avoided in criminal law if exceptional circumstances apply. That should apply to this time limit too. If there are exceptional circumstances, judges, at their discretion, can enable an appeal under the unduly lenient sentencing scheme to take place. Currently, that is not the case. The criminal justice system is littered with examples of how injustices occur when courts have their discretion removed. The 28-day time limit on unduly lenient sentences is yet another example of where the courts do not have any discretion and, therefore, injustices occur.

A judge, for example, can withhold the publicising of a conviction and sentence if it would impact on another trial. Yet even when that happens, as it did in a rape case in Newcastle that was highlighted in this place by my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning), the judge has no discretion to change or alter in any way the 28-day time limit. An offence is published after 28 days have elapsed, but people then cannot do anything about it. That really needs to be looked at again, because the defence can apply for time limits to be waived when lodging appeals, and so should the prosecution.

The unduly lenient sentencing scheme applies only to the Crown courts. A youth court, for example, when hearing very serious cases such as rape cannot be subject to the scheme. That has caused injustice in more than one case, so we need to look at attaching the scheme to types of offences only and not to the venue where the case was heard. The whole scheme, when we think about it, was brought in after a rape case was mishandled. Yet today, rape cases can be mishandled and unduly lenient sentences imposed without the prosecution or the victim being able to do anything about it. We need either to include rape cases in the youth court within the scheme or to remove the ability of the youth court to hear such cases.

The unduly lenient sentencing scheme is about fairness and balancing the scales of justice so that we give one side the same rights as the other in a court of law. By and large, in the most serious matters the scheme achieves that, but glaring anomalies prevent that in cases such as that of Gemma Robinson, my constituent, and far too many others. Great strides have been taken to widen the scheme, but we must ensure that the widening of the scheme is a continuing process, not simply an event.

The criminal justice system exists to protect the victims of crime, and it does so through fairness and balance. It is therefore imperative that we continue to widen the scheme, and thereby continue to protect the victims of crime.

--- Later in debate ---

[Gareth Johnson]

I thank the Minister for his response and for some of the reassurances that he gave us. I welcome the expansion of the scheme that has taken place, and I also welcome the fact that this is by and large a non-party political issue. Members of different parties have different approaches to the criminal justice system, but ultimately we all want to see fairness prevail, and I am pleased to see that.

We owe it to the victims of crime to make changes to this scheme. We owe it to Gemma Robinson, Kimberley, Jackie, Josh and Ruth, and the thousands of other people who have inadvertently been wronged by the criminal justice system. The 28-days issue is one that I would implore the Minister to look at again, because as I said in my speech, I believe that when there is a lack of discretion from the court in exceptional circumstances, injustice can occur. He was right to point out that we want certainty for both the victim and the offender. At the moment, there is certainty for the offender, but there is less certainty for the victim, because people can appeal out of time in some exceptional circumstances. That should also apply to the victims of crime.

Let’s face it, if we were creating a criminal justice system today, we would not create one like this. There is no way that we would say that the defence can appeal against anything but the prosecution cannot. That is simply not how anyone would create a system that rightly prides itself on balance and fairness. As far as the unduly lenient sentence scheme is concerned, we do not yet have that, so I would ask that this process, which has rightly been pursued by the Ministry, continues to look at what other offences can be brought into the scope of the scheme, so that we can have equality of arms and ensure that justice prevails, which is, after all, what we all seek to achieve.

Question put and agreed to.

Resolved,

That this House has considered the scope of the Unduly Lenient Sentence scheme.