Police, Crime, Sentencing and Courts Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Brinton, for the clarity with which she has put this forward. The driving force behind this amendment is Marie McCourt whose daughter Helen McCourt was murdered by Ian Simms, and the body was never found. Ian Simms never indicated where the body was, refused to acknowledge what had happened, and was eventually released on parole. Prior to him being released on parole, Marie had campaigned successfully for a change in the law, which said in effect that if you did not indicate where the body was, parole should normally be refused.

Now, very effectively and with great understanding, Marie McCourt has pressed for a change in the law to make sure that there is, in effect, a crime of desecrating the body of somebody you have murdered. This is a greater problem than previously. In recent times, 54 murder trials have taken place without a body. We on this side of the Committee strongly support this offence. It might be asked whether this matters if you are being charged with murder. It matters to the victims’ families and therefore it should matter to the law. That is why we support this amendment.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I will address the two amendments in reverse order, starting with Amendment 292L. This creates a new offence of concealment of a body and repeals the existing offence of obstructing a coroner. As it stands, to obstruct or prevent a coroner’s investigation of any body found, when there is a duty to hold one, is to commit an offence. That offence is a common-law one, triable only on indictment, and carries a maximum penalty of life imprisonment. The common-law offence is therefore wide-ranging. Proof of the offence does not require a person to conceal or attempt to conceal a body, or proof of a specific intent to obstruct a coroner—only that the coroner’s inquest is obstructed or prevented.

Amendment 292L replaces that wide-ranging offence that covers several ways in which a coroner is obstructed with a more narrowly defined offence which relates to obstruction by concealing a body or to facilitate another criminal offence. The specific offence proposed by the amendment also has a maximum penalty of three years—less than the life sentence that can be imposed under the current law. This approach, in our view, creates gaps in the coverage of the law compared with the existing common law and reduces the ability of the court to sentence for the full range of the offences.

We agree that concealing a body in this context should always be recognised by the law, and it already is in several ways. First, in the circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated a body is a clear aggravating factor in sentencing. As a result, the sentence will be increased to reflect the additional harm caused. Noting what the noble and learned Lord, Lord Falconer of Thoroton, said about the increasing number of trials that take place without a body, we acknowledge that as forensic techniques have improved, so has the determination or ingenuity of the criminal to try to erase traces.

Secondly, where the concealment of a body is part of a course of action that includes the killing, the sentence for murder—or for manslaughter, I imagine—will include that aggravating factor in deciding on the starting point from which the sentence should be imposed.

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The last royal commission on the justice system, the Runciman commission, was established in 1991 and reported in 1993. Over the last 30 years, much has changed in the justice system. We need a root and branch review. This amendment puts the need for a deeper understanding of our sentencing policy, the factors which influence it and the consequences which result from it firmly back on the agenda, and I commend it.

[Lord Stewart of Dirleton (Con)]

My Lords, just at the very moment when the noble and learned Lord, Lord Falconer of Thoroton, was admonishing the Government for wagging their finger at this Committee of your Lordships’ House for seeking to impose upon it that it should finish this evening, a message popped up on my phone saying that there is to be no dinner break tonight. Lest that be taken as a sign of this Government’s authoritarian tendencies in action, I assure the Committee that I am told that that has been agreed via the usual channels.

I thank the noble Lord, Lord Thomas of Gresford, for introducing this interesting debate and all noble Lords for their contributions. The noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord German, addressed themselves to the fiendishly complex nature of sentencing. As is appreciated across the House, I think, the business of sentencing is in many respects a collaborative project, involving not only this Parliament but the Bench as well as the profession. On the topic of sentence inflation, referred to again by the noble Lord, Lord German, as well as by the noble and learned Lord, Lord Thomas of Cwmgiedd, I have noted at least in the neighbouring jurisdiction that, as we monitor or study sentencing patterns, we see that, as some sentences over time appear to have extended, sentences in other areas appear to have diminished. I go back to the notion that it is not simply Parliament that sets these trends but the judges independently of Parliament—albeit I accept the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that there must necessarily be some degree of influence on the Bench coming from this place and the devolved Administrations.

In his thoughtful contribution, the noble Lord, Lord Beith, described an incoherent approach, and made the point that there was too much emphasis on the retribution side of sentencing as opposed to the rehabilitative. In that regard, I note that the principles of sentencing as set out in statute are fivefold; as well as rehabilitation and the reduction of crime, they also include punishment, reparation and public protection.

The noble Lord, Lord Berkeley of Knighton, setting sail for Utopia, in a compassionate contribution, proposed or floated before your Lordships the possibility of an additional service dealing with the mentally ill, whose difficulties, problems and tortures are so often seen by the medical profession, hospital staff and the emergency services. I regret that I am not in a position to address that thoughtful contribution tonight. Perhaps a royal commission is needed.

[A noble Lord]

Hear, hear!

[Lord Stewart of Dirleton (Con)]

The noble Lords, Lord Ramsbotham and Lord German, also referred the Committee to the lack of progress on the royal commission on criminal justice. The noble Lord, Lord Ramsbotham, chided the Government for having been discourteous to Her Majesty by having her make in this place a commitment on behalf of the Government which the Government had no intention of fulfilling. As I understand it, with the onset of the Covid pandemic and with resources being limited, a decision was taken to slow the work in that regard. There certainly has been no departure from the manifesto commitment.

[Lord German (LD)]

In answer to a question—I cannot remember whether it was asked by me or by the noble Lord, Lord Ramsbotham—I was told that all the staff who had been allocated to the royal commission had been reallocated to other duties. Rather than slowing it down, it has been stopped, surely.

[Lord Stewart of Dirleton (Con)]

The noble Lord makes a useful point. I did not have the fact, to which he referred your Lordships’ Committee, that all staff had been reallocated, but, as I do not have that fact, with the noble Lord’s leave, I will make inquiries and commit myself or my colleagues to write to him.

I commend the noble Lord, Lord Thomas of Gresford, for his commitment in relation to these important and difficult issues, expressed today as they have been on many other occasions in the past, but I offer the Committee the assurance that the Government are already pursuing a range of programmes and reforms in these areas and therefore consider a royal commission unnecessary.

A sentencing White Paper published last year set out the Government’s proposals for reform of the sentencing and release framework. Work is under way on the non-legislative commitments made there, and legislative proposals are being delivered by the body of the Bill. The White Paper was clear that the most serious sexual and violent offenders should serve sentences that reflect the severity of their offending behaviour—that, of course, is nothing more than the object of all sentencing exercises.

In answer to the point raised by the noble Lord, Lord German, about minimum sentences, we consider that there is room for minimum sentences in the overall statutory framework. I note that proposed new subsection (2)(h) acknowledges this, in that it seeks to review

“some mandatory or minimum prison sentences”

but not the overall principle by which Parliament dictates that some sentences will be mandatory. Minimum sentences have a place in the sentencing framework, particularly to deal with persistent behaviour that blights communities. These sentences are not technically mandatory; they are a mandatory consideration that the court must make before passing a sentence, and it is important to note that the court retains the discretion to ensure that individual sentences are commensurate with the seriousness of the offence. Clearly, there are appellate procedures relating to sentences which do not adequately reflect the seriousness of the offence.

However, the White Paper also makes it clear that properly robust, effective and trusted community-based sentencing options are equally as vital to protecting the public and to supporting confidence across the system and are a way of breaking a cycle of reoffending, which often will lie with these community solutions. It sets out a number of community sentencing measures to support rehabilitation, and it is made clear that this was a fundamental aim of its more targeted approach to sentencing, diverting low-level offenders away from criminality, whether this be with treatment for mental health issues, drug or alcohol misuse, more effective use of electronic monitoring, or problem-solving approaches to address offending behaviour. This work will also be supported by our recent reform of probation services, bringing together the management of offenders of all levels of risk into one organisation and delivering a stronger, more stable probation system that will reduce reoffending, support victims of crime and help keep the public safe, while helping offenders make positive changes to their lives.

The royal commission that the amendment sets out would look to address the particular needs of young people and women in custody. I again recognise the noble Lord’s laudable intention with regard to these cohorts of offender, and I commend him for this. I reassure the Committee that we are already taking action to support these vulnerable offender groups.

The youth justice sentencing framework already makes it clear that custody should be used as a last resort for children, and measures in this Bill make more rigorous community sentences available with the intention that those sentencing should have more confidence to give community- rather than custody-based disposals, where appropriate. We are also continuing to reform youth custody so that children are safer and better able to lead positive, constructive lives on their release from the penal system.

The aims of our female offender strategy are to have fewer women coming into the criminal justice system and fewer women in custody, with more female offenders managed in the community and better conditions for those in custody supporting effective rehabilitation. Publication of the strategy was the start of a new and significant programme of work intended to deliver better outcomes for female offenders, and we are making good progress.

The noble Lord’s amendment also seeks to address the overrepresentation of ethnic minorities in the criminal justice system. The Government recognise that this is a deep-rooted issue and that the reasons behind these disparities in the representation of different ethnic groups in prison are complex. We have a broad programme, intended to draw together the wide discourse on disparities, such as the findings of the Lammy review, the Commission on Race and Ethnic Disparities report and the inspectorate’s race-thematic reports. We are clear that we wish address race disparity wherever it appears.

Finally, as to the state of prisons, illustrated by the noble Lord by reference to the Berwyn prison but intended generally, the royal commission proposed would also make recommendations to reduce the prison population, overcrowding and prison violence. In one of the largest prison-build programmes since the Victorian era, we are delivering an additional 20,000 prison places by the middle of this decade through the use of around £4 billion of funding. We will continue to monitor the need for prison places over the coming years to ensure that there is capacity to meet demand.

In relation to the important matter of prison violence, to which the noble Lord made reference, we have increased staffing levels in prisons and are improving how staff identify and manage the risk of violence. We will continue to deliver our £100 million investment in security to reduce crime in prison, seeking to clamp down on the weapons, drugs and phones that fuel prison violence.

In July, we also announced our intention to publish a prisons White Paper. It will set out our ambitions for prisons, considering information learned during the pandemic and setting out a longer-term vision for a prison system that fulfils its objectives of being safe and secure and cutting crime.

I regret that the specific matters of recruitment of prison staff to which the noble Lord referred are outwith my ability to answer at this stage. However, as with other noble Lords, if he will permit, I will have the relevant department write to him on the topic. I hope that the Committee is assured of the Government’s work and commitment on these areas. I therefore urge the noble Lord to withdraw the amendment.

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Moved by

[Lord Stewart of Dirleton]

321: Schedule 20, page 297, line 6, at end insert—
“2A_ In the table in section 122(1) (standard scale of fines for summary offences)—(a) in the heading of the second column, for “1 October 1992” substitute “1 May 1984”;(b) between the second and third columns, insert—

“Offence committed on or after 1 May 1984 and before 1 October 1992

£50 £100 £400 £1,000 £2,000””

Member’s explanatory statement
This amendment makes a minor amendment to the Sentencing Act 2020 to correct an omission from that Act in relation to the standard scale of fines for historical summary offences.

[Lord Stewart of Dirleton (Con)]

My Lords, as an unacceptable substitute for my noble friend Lord Wolfson of Tredegar and in the light of the hour, I will simply move the amendment formally.

[Lord Coaker (Lab)]

Sorry, can I just ask a question? Does this change make any difference? The only reason I ask is because my noble friend Lord Kennedy and I—we are very good friends—looked at this and did not understand it properly, in particular, where it said

“in the heading of the second column, for ‘1 October 1992’ substitute ‘1 May 1984’”.

Given that that is eight years earlier, does that make any difference if you were fined during that period? Will you now get a fine in the post, or will something happen to you? Is it retrospective or does it not make a difference? I just worry that, because of the lateness of the hour, we pass something and then in a month or two—or even three or four months—we find that lots of people start moaning and complaining, quite rightly, that they have suddenly had a letter in the post. Can the noble and learned Lord just explain that to us?

[Lord Stewart of Dirleton (Con)]

I think that I can assist: the provision is not truly retrospective. The Sentencing Act 2020 makes it clear that the repeal of relevant provisions by the Act for the purpose of consolidating sentencing law into the Sentencing Code should not change how the law operates. I hear the noble Lord’s concerns, including that this matter is coming out so late. I will raise it with my noble friend in the Ministry of Justice and he will communicate with the noble Lord in order that these matters can hopefully be clarified to the noble Lord’s satisfaction.

[Lord Coaker (Lab)]

That is very helpful. I thank the noble and learned Lord.

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Moved by

[Lord Stewart of Dirleton]

322: Schedule 20, page 297, line 29, at end insert—
“(2A) In paragraph 34, in the opening words, for “omit” substitute “in”.”Member’s explanatory statement
This amendment corrects an error in paragraph 34 of Schedule 22 to the Sentencing Act 2020, which refers to the omission of subsection (4) of section 257 of that Act rather than providing for the amendment of that subsection.

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Moved by

[Lord Stewart of Dirleton]

324: Clause 175, page 194, line 14, at end insert—
“(ca) section (Expedited procedure for initial regulations about remote observation of proceedings);”Member’s explanatory statement
This amendment provides for the new Clause after Clause 170 in the name of Lord Wolfson of Tredegar to extend to England and Wales, Scotland and Northern Ireland.

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Moved by

[Lord Stewart of Dirleton]

325: Clause 175, page 194, line 29, at end insert—
“(6A) Sections 167 and 168 extend to England and Wales, Scotland and Northern Ireland.”Member’s explanatory statement
This amendment provides for Clauses 167 and 168 to extend to England and Wales, Scotland and Northern Ireland (in consequence of their expanded scope as brought about by the amendments in the name of Lord Wolfson of Tredegar at page 187, line 17 and page 190, lines 27 and 28).

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Moved by

[Lord Stewart of Dirleton]

329: Clause 176, page 195, line 39, leave out paragraph (u) and insert—
“(u) sections 167 and 168;(ua) section (Expedited procedure for initial regulations about remote observation of proceedings);”Member’s explanatory statement
This provides for Clauses 167 and 168, and the new Clause after Clause 170 in the name of Lord Wolfson of Tredegar, to come into force on Royal Assent.