Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Tuesday 23rd July 2019 Other Business

Moved by

[Lord Keen of Elie]

1: Clause 1, page 1, leave out lines 9 to 11 and insert “an enactment relating to the coming into force of the repealed provision or any other enactment”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I intend to move Amendment 1 and speak to the other amendments in the first group. The amendments mainly relate to adding further exceptions in Schedule 1 to the Bill to the clean sweep. This will make sure that no offender will be subject to a greater maximum penalty than would have been available to the courts at the time the offence was committed, or subject to a minimum or mandatory sentence that did not apply at the time of the offence.

The amendments are largely required to reflect the most recent changes to the law, and to make sure that we can incorporate sentencing provisions in so far as they relate to the Armed Forces into the sentencing code.

Before I talk to the amendments concerning further exceptions to the clean sweep, I will briefly cover government Amendment 1, which is simply a minor drafting change in relation to the definition of “transition time” in Clause 1, namely the point at which a given provision was commenced, repealed or amended. As a result of this amendment, the provision will simply revert to the form as published by the Law Commission in its draft Bill last November. We thought that we would simplify that part of the Bill, but parliamentary counsel thought the contrary and we have reverted to the original drafting.

I turn to the further exceptions to the clean sweep. Government Amendment 3 ensures that recent increases to the victim surcharge are exempt from the clean sweep. That will mean that offenders who committed offences before 28 June this year—the date when those increases were commenced—will not be subject to a surcharge under the sentencing code greater than that which existed at the time of the offence.

Government Amendment 4 ensures that an increase made to the maximum curfew requirement that can be attached to a youth rehabilitation order is exempt from the clean sweep. As such orders can be imposed for non-imprisonable offences, this will mean that offenders aged under 18 on conviction who committed offences before 3 December 2012—the date when the increase to the maximum curfew requirement came into force—will not be subject to a maximum penalty under the sentencing code greater than the one that existed at the time of the offence. That is clearly an incredibly small group of cases—it would entail someone aged 10 committing an offence before 3 December 2012 and coming before the courts for conviction and sentencing aged under 18 at the time when the code is commenced—but we make the amendment, stressing the need to be comprehensive in our exceptions to the clean sweep.

Amendments 6, 7 and 8 extend existing exceptions in Schedule 1 which ensure that the addition of certain offences to Schedules 15 and 15B to the Criminal Justice Act 2003, which list specified offences for the purposes of imposing sentences on dangerous offenders, are exempt from the clean sweep, so that they cover not only civilian but military sentencing. Those amendments extend the existing exemptions so that they cover the corresponding provisions of the Armed Forces Act 2006; namely, Sections 218A, 219 and 221.

Amendments 5, 9, 10 and 11 all relate to new exceptions resulting from the Offensive Weapons Act 2019, with the added complication that the provisions in question have not yet been commenced. Amendment 5 ensures that if regulations are made under the Offensive Weapons Act 2019 before the sentencing code is commenced which extend the category of offences concerning prohibited weapons for which an offender aged under 18 can be sentenced to be detained under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, they are to be included as an exception to the clean sweep. That will mean that future amendments that extend the category of offences concerning prohibited weapons will not apply to offenders aged under 18 who are convicted of possessing certain prohibited weapons, but who committed their offence prior to commencement of those regulations.

Government Amendments 9 and 10 ensure that if regulations are made before the sentencing code is commenced which commence minimum sentencing provisions in the Offensive Weapons Act 2019 related to certain offences concerning prohibited weapons, they too are to be included as an exception to the clean sweep.

Finally, government Amendment 11 relates to the minimum sentencing provisions for offenders convicted under the Offensive Weapons Act 2019 of possessing a corrosive substance in a public place for a second or subsequent time. That amendment will mean that offenders who are found to have been in possession prior to commencement of those provisions will not be subject to a minimum sentencing requirement for a second or subsequent offence under the sentencing code. I therefore beg to move government Amendment 1, and later will move the remaining government amendments in the group, Amendments 3 to 11.

Amendment 1 agreed.

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Moved by

[Lord Keen of Elie]

2: Clause 5, page 5, line 3, at end insert—
“(6A) The power conferred by section 338 of the Criminal Justice Act 2003 (power to extend to Channel Islands and Isle of Man, and to modify) is exercisable in relation to any amendment or modification of that Act that is made by or under this Act.(6B) The armed forces provisions extend to—(a) the Isle of Man, and(b) the British overseas territories except Gibraltar.(6C) The powers conferred by section 384 of the Armed Forces Act 2006 (power to extend Act to the Channel Islands and powers to make provisions of that Act apply with modifications in relation to the Channel Islands, British overseas territories and the Isle of Man) are exercisable in relation to any armed forces provision.(6D) “Armed forces provision” means—(a) an amendment, modification or repeal made by or under this Act of a provision of the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of any other provision, so far as the provision is applied (by whatever words) by the Armed Forces Act 2006.”

[Lord Keen of Elie]

My Lords, government Amendment 2 will ensure that any pre-consolidation amendments of sentencing procedural law made by or under the Bill extend to the Crown dependencies and British Overseas Territories in the same way as the legislation being amended, modified or repealed. It does so in two ways. First, the amendment inserts a provision in Clause 5 to replicate the power conferred by Section 338 of the Criminal Justice Act 2003. That power allows for any of the provisions in the 2003 Act to be extended to the Channel Islands and Isle of Man by Order in Council. As Schedule 2 to the Bill contains a number of pre-consolidation amendments of the 2003 Act, this provision will ensure that those pre-consolidation amendments can be similarly extended.

Secondly, this amendment inserts three provisions in Clause 5 that directly extend pre-consolidation amendments of Armed Forces legislation—namely, the Armed Forces Act 2006 and legislation applied by it—to the Isle of Man and British Overseas Territories except Gibraltar, and replicates the power conferred by Section 384 of the 2006 Act, which allows for any of the provisions of that Act to be extended to the Channel Islands by Order in Council. Those provisions will put beyond doubt that the pre-consolidation amendments of Armed Forces sentencing law contained in Schedule 2 to the Bill, for which the Government have tabled amendments, directly extend to the Isle of Man and the British Overseas Territories except Gibraltar, and can be extended to the Channel Islands.

It should be emphasised that to date the power in the permissive extent clause in the 2003 Act has not been exercised to extend any provisions that we are looking to consolidate in the sentencing code. Indeed, given that the Crown dependencies have autonomy in their domestic affairs and legislate for themselves on sentencing and criminal justice matters, we do not envisage a situation where there will be an extension of that provision. However, we are bound to put the provision in the Bill to ensure that sentencing procedural law can be consolidated faithfully in the sentencing code.

I acknowledge that there is a case to be made that the inclusion of a permissive extent clause in a UK Bill that contains provisions that fall within the Crown dependencies’ domestic competence should not ordinarily be necessary, save in exceptional circumstances connected with the UK’s constitutional responsibilities for the Crown dependencies. I can certainly see a case, when the law of England and Wales relating to crime is being updated in future, for our reviewing the permissive extent clauses that exist, including in sentencing, with an eye to removing them, but that is not the purpose or function of the present Bill. I beg to move.

Amendment 2 agreed.

[Lord Judge (CB)]

My Lords, before we get to Clause 5, I wonder whether this might be a convenient moment, this being a special Public Bill Committee, for me to say something about the way in which the committee has worked and the issues that we have resolved, so that they are a matter of public record given the unusual circumstances of the Bill.

The committee has met and taken oral evidence from Professor David Ormerod of the Law Commission and from the noble and learned Lord, Lord Keen of Elie, the Minister responsible for the Bill. We also received evidence from the Criminal Appeal Office and the Prison Reform Trust, and from Professor Andrew Ashworth and Professor Nicola Padfield, both of whom are acknowledged experts in sentencing law. We received supplementary written evidence from Professor Ormerod and the noble and learned Lord, Lord Keen, which addressed the issues raised during the committee’s oral hearing. The committee agreed that this written evidence should be accepted and indeed published. Beyond that, the committee had before it the sentencing code summary, the detailed sentencing code report and the sentencing code itself—all very substantial documents. This enabled us to examine the wide breadth of the consultation programme in which the Law Commission had engaged, and the responses to that process.

It is beyond controversy that the law relating to the sentencing powers of the courts is in desperate need of clarification. The adoption of this sentencing code is an imperative. The Bill, however, is mechanical. It does not, and is not intended to, address sentencing policy problems, nor is it a Bill intended to reform the law of sentencing. For example, one current policy question is whether there are any circumstances, and if so what, in which a short prison sentence may be imposed, or whether such sentences should be abolished. I suspect that if the members of the committee—some of whom are here today—had sought to address this single question, we might have been discussing and receiving evidence about it for many months.

There are many other outstanding questions, such as the continued detention, well beyond the normal sentencing tariff, of those ordered to be subject to imprisonment for public protection. There is a whole raft of policy questions. Therefore, it is important to emphasise not only that the Bill is not intended to address complex policy questions but that, if the Bill is enacted and the sentencing code comes into force, the policy questions will remain open for further public discussion and parliamentary decision.

Beyond the policy question, we also recognise that the consolidation provisions in the Bill do not cover every single aspect of every single sentencing enactment that might apply to conviction of a particular crime in particular circumstances by a particular offender. For example, the complexity of the confiscation provisions vested in the court after conviction is notorious. That issue is addressed in a separate further proposal.

Without wanting to suggest that they are not difficult, at the other end, there are also what may be described as the fiddly bits of a sentencing decision; for example, where and in what circumstances jurisdiction to make a protection order would arise. I am speaking for myself, although I think I speak for the committee also, when I say that I am satisfied that it would be contrary to the public interest to postpone the implementation of the code in its present form—it is a massive project, which has taken literally several years to bring before Parliament—until after the remaining questions have been addressed. At the moment, the code provides opportunity to improve and make the sentencing process much more straightforward and less prone to error; it is urgently needed.

Again, I emphasise that the enactment of the Bill and the coming into force of the sentencing code should not be seen as the end of the process but as a very large and important step in it. We were invited by Professor Padfield to treat the Bill as an interim measure; she made a powerful argument. As and when the further consolidation proposals are received from the Law Commission, I urge that the Government of the day see it as a matter of obligation to bring them to Parliament, not “as soon as practicable”—those are slightly weasel words—but forthwith. It is not a difficult process and we have not found it particularly time-consuming in Parliament, though the reading has been substantial.

The issue with which every member of the committee, and indeed many of those who responded to the consultation, was concerned can be summarised in a single word: “retrospectivity”, or perhaps in two words, “no retrospectivity”. If I may, I shall adopt Professor Ashworth’s identification of the principle at common law and embodied in Article 7 of the European convention: the defendant should not be subjected to a heavier penalty than the one that was applicable at the time the offence was committed. It is a simple and clear definition. The particular importance of applying this principle to this code and enactment is that, over the years, Parliament has steadily increased the maximum penalties for a number of offences including, for example, indecent assault. Many cases of sexual assault are now prosecuted and tried as historical cases, going back very many years. For such an offence committed in, say, 1988 or 1998, the sentence available then—not that available now—binds and limits the sentencing court.

We are satisfied that the retrospectivity issue has been properly addressed in what has been described as the “clean sweep” approach, in particular Clause 1(4). Beyond that, we did not find a single observation in the evidence which suggested or implied that there could be any doubt that the retrospectivity issue had been properly addressed. Yet further beyond that, my personal view is that if a sentence which infringed this principle were imposed, it would, at common law and under Article 7 of the convention, be corrected as an error. But importantly, the statute leaves the question beyond doubt.

Some concern was expressed in the committee about the possible extent of the regulation-making powers granted to the Secretary of State, in particular whether the Bill granted powers that would enable him or her, by regulation, to alter sentencing levels—especially, of course, to increase them. As Governments of different hues have developed what I describe as an unfortunate tendency, although that is rather polite, to try to create criminal offences punishable with imprisonment by the exercise of regulation-making powers, this concern obviously required careful analysis. I suspect that any court faced with any alteration to sentencing levels said to be derived from powers created in the Bill would be extremely dubious about construing the Bill in this way. Beyond that, however, in his recent written evidence the Minister pointed out that the regulation-making power in Clause 2(2) applies only to any potential amendments that facilitate, or are otherwise desirable in connection with, the consolidation process; and that Clause 5(3)(a) restricts the amending power to pre-consolidation amendments. In my view, the regulation-making powers in the Bill, which are concerned exclusively with the consolidation of legislative provisions currently in force, is not open to potential misuse by the Secretary of State.

We were also troubled by a problem over which we have no control and which I wish to highlight. It has nothing to do with the statutory provisions with which we are concerned, but with the danger that, unless great care is taken with the enactment of criminal legislation, particularly sentencing provisions—and, if I may say so, taken with infinitely greater care than in past enactments, which has caused all the problems—the code itself will be out of date within a major criminal justice statute or two. Given the rate at which such statutes are enacted, that would not be very long—possibly before the consolidating process of what I have described as the fiddly bits has been completed.

This code is pre-eminently a provision to which the words “living instrument”—my words—should be applied. It must be capable of adaptation and development as sentencing provisions and, in due course, policies change. The whole purpose of the code would otherwise have been lost. It would have been built, in the word used by one member during our discussions, on dust. That makes it imperative that when sentencing provisions are introduced, amended or repealed, express provision should be made in that primary legislation for the incorporation of those new provisions, as I shall now call them, into the sentencing code. We, and more importantly the Law Commission, given the extraordinary burden it has carried for several years now, will otherwise have been wasting our time.

Before long, sentencing courts will be struggling with the difficult problem of deciding what the sentence should be. If I may pause there, I think many judges would say to the Minister that, with the possible exception of deciding where children should live when there are problems at home, a decision about what sentence should be imposed on an individual is one of the most difficult problems that any judge can face anyway. They would be faced not only with the difficult problem of deciding what the sentence should be but with the ludicrous task of examining complicated legislation to ascertain what the court’s lawful sentencing powers are.

I have said all that I wish to say on this beyond thanking our team, led by John Turner, very much for their help and their immediate response to a Bill that has come through the House very rapidly and needed close attention from all those involved behind the scenes.

[Lord Keen of Elie]

My Lords, I want to make one or two observations for the record in response to the comments made by the noble and learned Lord as chairman of the committee.

Clearly, as was observed, the clean sweep mechanism is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available or subject to a minimum or mandatory sentence that did not apply at the time that the offence was committed. Of course, a clean sweep allows for a different sentencing disposal than would have been imposed had the code not been enacted. The guideline judgment in R and H v UK in 2011 sets out that sentencing exercises should be conducted on the basis of current sentencing law by measured reference to any definitive and relevant sentencing guidelines, and that while sentences must be limited to the maximum available at the time of the offence, it would be unrealistic to try to assess what the sentence would have been had the case been heard years, or even decades, earlier.

My only additional comment is that the clean sweep will extend the duty of the courts to follow sentencing guidelines, thereby removing the previous duty to have regard to sentencing guidelines in relation to offences committed before 6 April 2010. Accordingly, the code will extend the current duty to follow sentencing guidelines to all convictions that follow the enactment of the code.

Clause 5, as amended, agreed.

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Moved by

[Lord Keen of Elie]

3: Schedule 1, page 6, line 17, at end insert—
“5A_ Article 3 of the Criminal Justice Act 2003 (Surcharge)(Amendment) Order 2019 (S.I. 2019/985), so far as it relates to article 2(b) of that order.”

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Moved by

[Lord Keen of Elie]

12: Schedule 2, page 15, line 7, leave out “In section” and insert—
“(1) Section”

[Lord Keen of Elie]

My Lords, Amendment 12 and the other amendments in the group pertain to Schedule 2 to the Bill. Again, the amendments are mainly technical to ensure that sentencing procedural law can be consolidated accurately in the sentencing code for both civilian and military sentencing. In moving government Amendment 12, I shall speak also to Amendments 13 to 24.

The Offensive Weapons Act 2019, which I mentioned earlier, introduces minimum sentencing provisions that apply to offenders convicted of possessing a corrosive substance in a public place for a second or subsequent time. Existing sentencing procedural legislation that will be consolidated in the sentencing code contains a number of provisions that clarify the effect on certain aspects of sentencing procedural law of requirements to impose listed kinds of mandatory minimum sentences.

The amendments make consequential provision to ensure that reference is made in those lists to the mandatory minimum sentences for corrosives under Section 8(2) of the 2019 Act, so that they are treated the same way as other mandatory minimum sentences relating to knives and offensive weapons under the Prevention of Crime Act 1953 and the Criminal Justice Act 1988.

Government Amendment 15 clarifies that the power to make a driving disqualification order under Section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 is exercisable whether or not any other sentence, including a mandatory sentence, is imposed. This will ensure that Section 146 of the 2000 Act is aligned with Section 130 of that Act, which is already subject to a similar pre-consolidation amendment by virtue of paragraph 39 of Schedule 2 to the Bill.

Government Amendment 20 clarifies Section 166 of the Criminal Justice Act 2003, which allows a court to take into account mitigating factors in relation to youth rehabilitation orders with intensive supervision and surveillance, or with fostering.

Finally, government Amendment 22 ensures that Armed Forces sentencing law can apply sentencing law as consolidated in the sentencing code. It does this by making three changes to the Armed Forces Act 2006. First, it removes a reference in Section 178 of that Act to petty sessions districts in Northern Ireland, which were repealed by the Justice Act (Northern Ireland) 2015. Secondly, it clarifies the drafting of Section 212 of that Act in relation to detention and training orders, to ensure that a detention and training order made under Section 211 of that Act will take effect at the beginning of the day on which it is made, unless the court orders otherwise under Section 101(3) of the Powers of Criminal Courts (Sentencing) Act 2000. This change is in line with a corresponding pre-consolidation amendment for a detention and training order made in a civilian case, by virtue of paragraph 31 of Schedule 2 to the Bill. Thirdly, it makes consequential provision to ensure that reference is made in Section 213 of the 2006 Act, which lists provisions relating to civilian detention and training orders, to Section 101(12A) of the 2000 Act.

In these circumstances, I beg to move.

Amendment 12 agreed.

Moved by

[Lord Keen of Elie]

13: Schedule 2, page 15, line 7, after “orders)” insert “is amended as follows.
(2) ”