Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

[Lord Paddick (LD)]

Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

[Lord Wolfson of Tredegar (Con)]

My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank all who participated in this debate. I will deal very briefly with the two points that have arisen.

First, the system to ensure consistency and compliance with the code will apply to whatever system is brought into effect, including the conditional cautions or fixed penalty notices. I am very grateful to the Minister for his statement, and it seems to me there is now a proper basis for going forward. I think it is fair to say that, when fixed penalty notices and cautions came to be used much more frequently, attempts were made by the judiciary from about 2005 onwards—therefore spanning both Governments—to try and put in place such a system. I am afraid we did not get very far, but it is encouraging to know the Minister is now behind this.

I hope for two things. One is for us to go forwards, as the noble Lord, Lord Ponsonby of Shulbrede, has said, with the magistrates doing matters locally, and I hope the MA will positively engage. The other is for a national basis. National consistency is important, because to the man on the Clapham omnibus—or whatever the modern phrase is—whether you get required to do something by the court or by the police, it is still part of the same system and it is still the law that requires it. Therefore, I look forward very much to scrutinising, when this comes back, the proposals put forward by the Government in the code.

As to the second part, I am again grateful to all who have taken part. If I may respectfully say so, I think there is a certain lack of wisdom in getting rid, without an adequate evidence base, of something that has been as useful in the past as a simple caution. However, I beg leave to withdraw the first amendment.

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Moved by

[Lord Wolfson of Tredegar]

67: Clause 100, page 87, line 11, leave out from “90(8)” to end of line 12
Member’s explanatory statement
This amendment provides for regulations under Clauses 81(8) and 90(8) to be subject to the affirmative procedure whether they increase or decrease the maximum number of hours a person may be required to work or attend at a place pursuant to a caution.

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Moved by

[Lord Wolfson of Tredegar]

69: Before Clause 102, insert the following new Clause—
“Penalty for cruelty to children
(1) In section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), in subsection (1)(a) (penalty on conviction on indictment), for “ten” substitute “14”.(2) Subsection (1) applies only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement
This amendment increases the penalty under section 1(1)(a) of the Children and Young Persons Act 1933 to 14 years.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments follow a discussion in Committee and an undertaking given on Report in the other place in response to amendments tabled by Tom Tugendhat MP, with cross party-support, which sought to raise the maximum penalties for child cruelty offences. We said at that time that we would bring forward proposals for reform as soon as possible.

I pay tribute to Tom Tugendhat and the family of his young constituent, Tony Hudgell, who have campaigned tirelessly for these changes to the law in his name. As a baby, Tony was abused to such an extent by his birth parents that he is now severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them most. Therefore, it is right to ensure that, in such cases, the punishment fits the crime. I should add that today saw the sentencing of those involved in the tragic death of Star Hobson. I offer my and the Government’s sincere condolences to Star’s friends and family. The violent death of a child as young as Star really is heart-breaking.

Government Amendments 69 and 70 amend Section 1 of the Children and Young Persons Act 1933 and Section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively to increase the maximum penalties in three circumstances. Those for cruelty to a person under 16 rise from 10 years’ imprisonment to 14 years’ imprisonment; those for causing or allowing the death of a child or vulnerable adult rise from 14 years’ imprisonment to life imprisonment; and, finally, those for causing or allowing a child or vulnerable adult to suffer serious physical harm rise from 10 years’ imprisonment to 14 years’ imprisonment.

Government Amendment 70 also adds the offence of causing or allowing the death of a child or vulnerable adult to Schedule 19 to the Sentencing Act 2020. This is a consequential amendment of Schedule 19 which lists offences where the penalty may be life imprisonment. It means that, if the judge determines that the offender is dangerous and the circumstances of the offence are sufficiently serious, the offender must receive a life sentence. Furthermore, a consequence of increasing the maximum penalty for causing or allowing the death of a child or vulnerable adult to life imprisonment is that offenders sentenced to seven years or more for that offence will now spend two-thirds, rather than half, of the sentence in custody.

I am confident that the House will agree, especially in light of the recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available—I underline that these are new maximum sentences—to deal appropriately with those who abuse children and vulnerable persons. I therefore beg to move Amendment 69.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.

A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.

There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

[Baroness Chapman of Darlington (Lab)]

My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.

However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed to this debate. I will pick up the point just made by the noble Baroness, Lady Chapman of Darlington. There has indeed been cross-party support on this point in your Lordships’ House, as there was in the other place, and I am grateful to her and the noble Lord, Lord Marks of Henley-on-Thames, for that. I therefore will not shatter the mood of consensus by descending into a debate on early intervention, save to say that I too agree that early intervention is important. I will pass her remarks on to my colleagues and I am sure we will continue that debate at another time.

For today, it is important to preserve that consensus. There is a mood across the House that these amendments are important, for the reasons given by all speakers. I was particularly grateful to have the support—perhaps unusually, if I may say so—of the noble Baroness, Lady Jones of Moulsecoomb, which shows that this issue is a cross-party, and perhaps even a non-party, issue. With those thanks, I commend the amendments to the House.

Amendment 69 agreed.

Moved by

[Lord Wolfson of Tredegar]

70: Before Clause 102, insert the following new Clause—
“Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm
(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious harm) is amended in accordance with subsections (2) and (3).(2) In subsection (7) (penalty in the case of a person’s death), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(3) In subsection (8) (penalty in the case of serious physical harm), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(4) Subsections (2) and (3) apply only in relation to offences where the unlawful act to which the offence relates is an act that occurs, or so much of such an act as occurs, on or after the day on which this section comes into force.(5) In Schedule 19 to the Sentencing Code (list of certain specified offences carrying maximum sentence on indictment of imprisonment for life), after paragraph 20 insert—“Domestic Violence, Crime and Victims Act 200420A(1) An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that meets the conditions in sub-paragraph (2). (2) The conditions are that—(a) the unlawful act to which the offence relates was an act that occurred, or so much of an act as occurred, on or after the day on which section (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm) of the Police, Crime, Sentencing and Courts Act 2021 came into force, and(b) the offender is liable on conviction on indictment to imprisonment for life.””Member’s explanatory statement
This amendment increases, for England and Wales, the penalties under section 5(7) and (8) of the Domestic Violence, Crime and Victims Act 2004 to life (if a person dies) or 14 years (if a person suffers serious physical harm). The amendment includes a consequential amendment of Schedule 19 to the Sentencing Code, which lists offences where the penalty may be imprisonment for life.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.

As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.

The amendments use the term

“contrary to the interests of justice”.

This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless

“satisfied that it would be contrary to the interests of justice to do so”.

However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.

As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.

I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.

I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.

I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.

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[Lord Garnier (Con)]

I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.

[Lord Wolfson of Tredegar (Con)]

We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.

In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

[Lord Pannick (CB)]

The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?

[Lord Wolfson of Tredegar (Con)]

As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.

Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.

The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.

This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.

As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.

Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.

Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.

I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,

“unless … there are exceptional circumstances … which justify it not doing so.”

Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.

In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

[Lord Marks of Henley-on-Thames (LD)]

May I confirm that? It was the wrong word to use, and I apologise.

[Lord Wolfson of Tredegar (Con)]

I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.

Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.

I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.

The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.

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[Lord Falconer of Thoroton (Lab)]

Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

[Lord Wolfson of Tredegar (Con)]

My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

[Lord Falconer of Thoroton (Lab)]

I am sorry to interrupt again, but when that has been done, what is the next stage?

[Lord Wolfson of Tredegar (Con)]

There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.

Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.

My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.

The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.

Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.

Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.

Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.

Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.

All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.

Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.

I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.

[Baroness Chapman of Darlington (Lab)]

I am grateful to noble Lords, and particularly to the Minister for his comments in response to the amendments tabled by my noble friend Lord Ponsonby.

On Amendment 78A, clearly it is right that mitigating factors are taken into account and that remorse, guilty pleas and assistance with prosecution are considered; no one is arguing anything to the contrary. However, I put it gently to noble Lords that it is important that sentencing adapts as attitudes in society evolve. I suggest to those noble Lords who were so outraged that we might want to change the system with regard to rape that attitudes towards that crime have changed. That is a very good thing and we should welcome it. However, public confidence in how rape is handled is in crisis.

All rape is violent, often with life-changing consequences for the victim, and we will continue to press the Government on this. I am pleased that women are speaking up with confidence and demanding this kind of change. Speaking personally—although I know that is not something you can properly do from the Dispatch Box—I find the frequent emphasis in this discussion on the idea that there are different degrees of rape, that “There’s rape and then there’s rape”, troubling. As I say, though, we will return to this in future because the women of this country will demand that of us.

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[Lord Sandhurst (Con)]

My Lords, I support the amendment. I am conscious that the Bill is on Report. This is a probing amendment, but it raises an important and pressing point. I hope I shall be short. I make four points.

If this offence is taken on its own, I think we would all agree that two years is plainly an insufficient maximum. Let us assume for these purposes that an offender comes before the court, is not a murderer and has not been a party to the death of any victim, but has had access to the bodies and has done what Mr Fuller did. It appears that he committed many offences of sexual penetration of corpses to which he had access by virtue of his employment. It may not be common, but we simply do not know what someone may do in the future. It is an appalling prospect, but we simply cannot exclude the possibility that a non-murderous necrophiliac might offend in a similar way. I suggest that we must do all we can both to deter and to punish in that event. If there is no murder but a large number of offences, is 10 years really too long a maximum sentence for someone such as Mr Fuller?

I talk about punishment because it is impossible to contemplate the horror of a relative who learns that their deceased loved one was defiled in this way. We as society owe it to such a relative, who is truly a victim, to show that we respect the dead and will mark such behaviour in a way that demonstrates that respect.

When I was approached by the noble Baroness to help her on this matter, I asked the Library to do some research. It very helpfully uncovered materials relating to the debate that took place in 2003. There was the Home Office’s consultation paper of July 2000, and section 8.6 addressed this issue. It disclosed that at that time, somewhat to the authors’ surprise, there was no offence that made necrophilia illegal. The consultation disclosed that there was

“no firm evidence of the nature or the extent of the problem”,

but agreed that

“human remains should be shown respect”

and noted that

“relatives and friends would be deeply distressed”.

In section 9.2, that consultation addressed sentences for a range of offences. From my reading of the Government’s response in November 2002—I do not criticise anyone for this—it appears that the authors at that point may have proceeded on the assumption that the offence would follow and be additional to a charge of murder or manslaughter. In other words, it was not looked at on the basis of a stand-alone sexual deviant.

If we are looking for a comparator, brief research has disclosed what happens in Canada, where the offence carries a maximum sentence of five years. I question whether even that is sufficient in the worst case, but I leave it to others to consider.

To conclude, this is a most unpleasant criminal offence. It must be reconsidered as a matter of priority. The current sentence for the stand-alone offence is simply too low. I urge the Government to address this with dispatch and not to delay once the immediate clamour over the Fuller case has died down. It is not difficult. It simply needs a suitably steep maximum sentence to mark its gravity.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendment 78DA, moved by my noble friend Lady Noakes, is in regard to the maximum penalty for the sexual penetration of a corpse. I first place on record my shock and horror at David Fuller’s horrifying offending; my thoughts are with the victims and their families. I assure the House that the Government are committed to looking in detail at what happened in this appalling circumstance to ensure that it simply never happens again.

As we have heard, just this afternoon Mr Fuller has been sentenced to a whole-life term of imprisonment. An investigation into other aspects of his offending is ongoing. The House will understand why I will not comment on the sentence passed in this case, but I thank all those in the police, the CPS and the wider criminal justice system for bringing him to justice.

The Government have announced an inquiry into the events that occurred in hospitals in Tunbridge Wells. This will help us understand how the offences took place without detection in the trust, identify any areas where early action by the trust was necessary and consider wider national issues, including for the NHS as a whole. The Government have already made good progress in establishing the independent inquiry. I understand from colleagues in the Department of Health and Social Care that the inquiry’s chair, Sir Jonathan Michael, has developed draft terms of reference already and will engage with the families on them in the new year before they are published.

As well as that inquiry, I assure the House that the Ministry of Justice is reviewing the existing penalties available for the offence of sexual penetration of a corpse. The statutory maximum penalty for that offence is, as my noble friend indicated, two years’ imprisonment.

I reassure your Lordships, however, that that is the statutory maximum penalty for one offence. Where the offence is sentenced alongside other offences, each offence will be sentenced individually. The overall sentence passed will therefore reflect the totality of the offending behaviour.

I also pay tribute to my noble friend’s work in supporting the inclusion of this offence when it was debated during the passage of the Sexual Offences Act 2003. It was created primarily to deal with a different circumstance—different circumstances were in mind at the time. The focus was on the situation where a murderer abuses the corpse of their victim after death, and it was therefore perhaps thought likely that those sentenced for this offence would, for the most part, be sentenced at the same time for another offence, such as murder—which of course carries a mandatory penalty of life imprisonment. As we have seen in the Fuller case, that is sometimes the case but may not always be so.

It is therefore right that, in view of this depraved—which is not a word I use often, but I think is appropriate in this context—and horrifying offending where we have seen an individual commit this offence independently of other offending in relation to that victim, we review the current statutory maximum penalty for the Section 70 offence. It may also be that this review, and the public inquiry into the offending in hospitals in Kent, will highlight other issues that need to be considered relating to the existing offences that deal with sexual abuse of corpses.

To be clear, I am not saying—I cannot this afternoon —that the Government will adopt the specific approach taken in this amendment, but neither do I rule out future changes to the maximum penalty. Rather, we are reviewing the maximum penalty in its context, and speaking with DHSC officials to ensure that learning from the inquiry into events in hospitals can be taken into account into our review of the penalty. That is the best way to reach a considered conclusion about how to amend Section 70 appropriately.

As to timing, the inquiry into the events at hospitals in Kent is due to publish interim findings in the new year, with the full report at a later stage. I will write to my noble friend, and place a copy in the Library, with any further information on the inquiry’s timescales as soon as that is available. Our review of the available maximum penalties is likely to follow a similar timescale, to ensure that findings from the inquiry can be taken into account in our conclusions. It is therefore important that we await the findings of the inquiry before amending the current legislation. I listened carefully to how my noble friend opened this short debate, and I therefore ask her formally to withdraw this amendment.

[Baroness Noakes (Con)]

My Lords, this has been a short but important debate, and it will be particularly important for the families of those who died who were abused by that man. Clearly, they have suffered hugely. My noble friend is right to point out that I made clear that this was a probing amendment and therefore have no intention of pressing the amendment. My main purpose was to ensure that the Government are set upon dealing with this issue properly, and I was much reassured by what I heard from my noble friend. With that, I beg leave to withdraw my amendment.

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[Baroness Burt of Solihull (LD)]

My Lords, I just want to associate myself with the comments of my noble friend Lord Beith. I will reserve my comments until after the Minister has spoken.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am extremely grateful to the various Members of the House who have spoken. These amendments relate to offenders serving sentences of imprisonment for public protection, known as IPPs. We had a heartfelt and powerful debate on this issue in Committee; the mood during today’s debate has been equally apparent. I should say that, throughout this time, I have personally received a lot of emails from families affected by IPP sentences. I put on record that I have read all of them, even if I cannot reply to them all individually.

Let me go through the amendments and set out the Government’s position clearly. First, I make it absolutely clear that the Government recognise that more work needs to be done in relation to this group of prisoners. On that basis, the Government intend to bring forward an amendment at Third Reading. I will give details of that amendment in a moment; let me first set out the work done so far.

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[Lord Moylan (Con)]

Before my noble friend sits down, I heard what he said, but if the Justice Select Committee in the other place was to recommend a reduction in the qualifying period from 10 years to five years, would he at least give his personal undertaking to do his very best to ensure that the Government found an opportunity to legislate for that at the earliest possible time?

[Lord Wolfson of Tredegar (Con)]

I am not quite sure of the meaning of a personal undertaking from me to ensure that the Government will find an opportunity. I hope the House will appreciate that I have personally put a lot of time and effort into this matter. When I see the Justice Select Committee’s report, that time and effort will not diminish.

[Lord Blunkett (Lab)]

My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.