Homicide Law Reform

Mike Penning Excerpts

Thursday 30th June 2016 Westminster Hall

[Victoria Prentis (Banbury) (Con)]

I congratulate my hon. Friend the Member for Cheltenham (Alex Chalk), who is a fellow member of the Select Committee on Justice, on his prescience in calling for this debate. It is a very important subject and has been for many years now, and it seems to me that the time is right for change in this area.

As a constitutional lawyer, I do not always keep up with the intricacies of criminal statutes and sentencing. In preparing for today I was slightly surprised that the definitions of “murder” and “manslaughter” had not moved on substantially since I was a student many years ago. We were taught that the law was outdated and not really fit for purpose; very little has changed. The Law Commission in 2005 declared that:

“The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform.”

Sadly, that is even more the case today than it was then.

I next came across the effects of the law on murder in my work for the Government Legal Service, when the Prison Service was a major client throughout my career. At the start of my time there, the concept of whole-life tariffs was being tested in the Myra Hindley case. I became fascinated by psychopathy—though clearly not a practitioner. I learned that, though truly psychopathic murderers crossed my desk often, those cases, while newsworthy, were happily extremely rare and made up only a tiny proportion of those in our criminal justice system.

Just over 80 whole-life tariffs have been given since 1983 when they were introduced. Those guidelines are clear, judges seem to apply them sensibly, and there is also the right of political appeal where necessary. That system seems, to me and to the European Court of Human Rights, to work reasonably well, and is a good example of judicial discretion in action.

Later on in my career I was often called on to act for the Parole Board in cases of judicial review. There were frequent challenges to the legality of decisions of the Parole Board to refuse to release life-sentenced prisoners, who had often been accused of murder, either because they had not fully admitted their guilt or because they had not been able to do courses that would demonstrate that they had overcome their offending behaviour. Many of the young men imprisoned for murder were boys who had got tanked up in the pub and used a broken glass to inflict serious damage on somebody they did not like the look of.

Glassings in those days usually attracted sentences of around 10 to 12 years, but the variations in the availability of offender behaviour work meant that it was difficult to predict the length of time that anybody would serve. That has not got any easier with the pressures on the Prison Service currently, but we now know that the average length of a sentence for murder has risen from 13 years, which I think was measured in 2004, to about 17 years, which was measured recently. In those circumstances, it is more important than ever that we sort the law out.

I am in no way belittling the crushing effect of murder on the families of the victims. However, those sort of crimes, which my hon. Friend the Member for Cheltenham so clearly explained, are very different from the pre-meditated, sadistic murders carried out by psychopaths which passed my desk. It is important that the law recognises that. Many years ago, the Law Commission published a report in which it proposed changes to homicide sentencing. Its most radical suggestion was explained very clearly by my hon. Friend—in brief, it was to split the offence of murder into first and second degree murder, which itself can be categorised as voluntary or involuntary. After that, partial defences to murder of “diminished responsibility” and “loss of self-control” could be taken into account.

What is important is that those proposed changes would allow sufficient discretion for judges to choose from a far wider range of sentences. Yes, it would be more difficult for the public to understand at first, but with a concerted effort—possibly in a fictional context—our fascination for murder and serious crime would soon mean that the situation was clearer than it is now. After all, many of us have learned a great deal about coercive control recently, though happily not in a fatal context, through the goings on in Ambridge. Am I the only fan of “The Archers” in the room?

[The Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning)]

Yes.

[Victoria Prentis]

Sorry. I, too, have real concerns about the law of parasitic accessory liability, or joint enterprise. We have heard much about the joint enterprise law in recent months following the Supreme Court’s ruling in the Jogee case that

“foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage”.

The ramifications are far-reaching. In the Supreme Court’s words, the law has taken a “wrong turn” for more than 30 years. No longer must young adults out to rob or perhaps to drive a getaway car, but with no thought of killing, end up with life sentences through the actions of their colleagues. We must confront the problem of the breadth of behaviour and culpability encompassed by the offence of murder.

Progress has been virtually non-existent since 2006, despite further consultation undertaken by both the last Labour Government and the coalition Government. So much is changing in the areas of prison reform and rehabilitation of offenders at the moment; both the Ministry of Justice and the Home Office are filled with reforming zeal. I can see that the Minister is smiling at me—surely this is the moment to make long-overdue changes to the law of homicide as well.

--- Later in debate ---

[Richard Burgon (Leeds East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Evans. I am pleased to respond to the debate, which I thank the hon. Member for Cheltenham (Alex Chalk) for securing. I very much enjoyed serving with him and other hon. Members who are here today in my brief time on the Justice Committee. So much has changed for all of us in the Conservative party and the Labour party since those straightforward and timid days.

The hon. Gentleman brings the expertise of someone who sits on the Justice Committee, whose work I will refer to later, and the experience of a distinguished legal career. His former legal practice described him as “a first-class practitioner” and a “persuasive and forceful advocate”. As he has persuaded the hon. Member for Shipley (Philip Davies) to keep an open mind on this matter, I can certainly say that I agree with his former legal practice.

The hon. Member for Shipley, a fellow Yorkshireman, said that people would not want hear from him in the debate. On that, as on many other things, I fundamentally disagree with him. I was pleased to hear from him, as we all are, because one thing we do respect him for is that he always says what he thinks, which is very important. It was a pleasure to hear from the hon. Members for Banbury (Victoria Prentis) and for Hendon (Dr Offord), both of whom made interesting points about this most serious of matters. I thank the Backbench Business Committee for allocating this slot for the debate and ensuring that such important topics are debated in the House.

As hon. Members know, this is my first debate as shadow Secretary of State for Justice and shadow Lord Chancellor. I am pleased to follow in the footsteps of Lord Falconer and my other predecessor, Sadiq Khan, who is now the Mayor of London. Not only have I had the pleasure of briefly serving on the Justice Committee, but for 10 years I was a lawyer in my home city of Leeds, and for eight of those years I practised employment tribunal work. I am yet to meet my opposite number, the Lord Chancellor and Secretary of State for Justice, but I understand that he is rather busy at the moment. I am sure that he will be agreeable to meeting me at some point and I look forward to that.

There have not been many speeches in this debate, but they have all been excellent, and I feel with confidence that we can move the debate forward. I want to give the Minister the maximum time to respond—he may get a full hour to respond, who knows?

[Mike Penning]

Don’t hold your breath.

[Richard Burgon]

Some people would like me to hold my breath, maybe for a long, long time but, on this occasion, I will not. I will limit my remarks to briefly addressing joint enterprise, an issue that has been raised in this debate and that the hon. Member for Cheltenham mentioned in his submission to the Backbench Business Committee.

Any change to the law of homicide, no matter how small, is of the utmost importance to the public and the House. That is because homicide offences are some of the most serious criminal offences that any individual can commit against any other individual or individuals. The state, as a signatory to the European convention on human rights, must undertake a positive obligation under article 2—the protection of the right to life—to take all appropriate steps to safeguard life, and to put in place a legislative and administrative framework to provide effective deterrents against threats to the right to life. That is what we are debating and why, in my new role, I am keen to listen carefully and engage with as many key stakeholders as possible. I am keen to hear more from the Minister about the Government’s next steps.

On joint enterprise, it is important to refer to Lord Neuberger’s judgment, in which he said that the Supreme Court ruling did not automatically mean that all previous joint enterprise convictions were unsafe, and that

“a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is guilty at least of manslaughter”,

the maximum sentence for which is life imprisonment. He also said that the rule that

“a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it”

was not affected, and that it remained open to a jury to decide whether a person had intentionally encouraged or assisted a crime—for example, through knowledge that weapons were being carried. As the Prime Minister has said, we are dealing with a narrow change to the law, but one that could have massive implications for many people.

[Mike Penning]

I am probably the only non-learned Member present in the room, apart from my hon. Friend the Member for Shipley (Philip Davies), but I understood that the ruling was quite specific. I thought that the Supreme Court had said that the interpretation of the law had been wrong but that there was no need to change the law. The judgment was quite specific about that.

[Richard Burgon]

I thank the Minister for making that important point, and I look forward to hearing about that in more detail in his response.

The lawyer Simon Natas, who has worked with the impressive campaign group Joint Enterprise Not Guilty by Association, said that the “historic” ruling would make the law “fairer for everybody”. He is right, but it is important to make it clear that if someone goes out as part of a gang carrying guns or knives, and their actions encourage or assist in a murder, they should face the consequences. I am sure that is broadly the view of reasonable people, and that the public would support that. After listening to the views of my friends, neighbours and constituents, I know that, by and large, that is people’s view.

The judgment was right to acknowledge the growing call for change following the concern that quite peripheral members of a gang involved in a killing, who had no real clue what they had been caught up in, were being prosecuted. That is why I welcome the judgment. I press the Government to commit to conduct a review of the effects of the change after two to three years.

I am concerned by evidence that the Cambridge Institute of Criminology provided to the Justice Committee revealing that the proportion of black and mixed-heritage young men serving very long sentences for joint enterprise offences is much higher than their representation in both the general population and the overall prison population. Will the Government commit to reviewing that, alongside the wider review by my right hon. Friend the Member for Tottenham (Mr Lammy)?

We have heard today about so-called one-punch killers. The hon. Member for Cheltenham provided examples, hypothetical and otherwise, showing the difficulty of the issue and the serious consideration it requires. I am concerned about the public perception that attackers who kill with a single punch seem to receive jail sentences that could be seen as lenient, despite the December 2009 Court of Appeal ruling on single-punch killings led by the former Lord Chief Justice, Lord Judge. The ruling’s conclusion stated that acts of violence resulting in death should be given “greater weight” in sentencing, even if the conviction is for manslaughter rather than murder. Will the Minister confirm whether he is reviewing that ruling?

I will close my remarks to give the Minister as much time as possible, although I suspect he will not take the maximum time available. The Labour party is clear that the criminal justice system relies on the fundamental principle that the public must have confidence in it, and it is our duty to ensure that victims and witnesses who come forward have confidence that their case will be dealt with thoroughly and fairly, and that people who break the law of the land and who are found guilty of some of the worst offences—homicide devastates families across the country—are punished accordingly.

I thank all hon. Members who took part in this debate, and I thank you, Mr Evans. I look forward to the Minister’s response.

[The Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning)]

As usual, it is a pleasure to serve under your chairmanship, Mr Evans—I really mean that. I congratulate my hon. Friend the Member for Cheltenham (Alex Chalk) on securing this debate. It is honestly a real shame that more colleagues are not here for such an important debate—a debate that should continue beyond this afternoon. Far be it from me, in my lowly position, to suggest that this debate should be on the Floor of the House or that a Select Committee should hold an inquiry, but if I were a member of the Justice Committee, I would probably look to hold an inquiry. Like my predecessors, I will keep an open mind on this subject for as long as I am in the job, and probably long after.

The Supreme Court judgment has been mentioned a couple of times, and the five judges who made that ruling specifically said that they were referring to a very narrow part of law, which they said had been interpreted incorrectly in the judgments handed down by different judges. The Supreme Court specifically said that its ruling required not a change of law but a change in how judges interpret the law. I say for the first time that the Government accept that ruling, and we accept that the law in this particular area does not need to be changed.

The Sentencing Council is currently looking at one-punch manslaughter cases, about which the public are understandably concerned. In the case mentioned earlier, such concern is only right and proper, but Parliament has rightly given the Sentencing Council responsibility for setting guidance—Parliament traditionally had that responsibility. I also fully accept that some parts of guidance are still set in statute, and there is an ongoing sentencing review.

I apologise for not welcoming the hon. Member for Leeds East (Richard Burgon) to his new post. I wish him every success in his very important position and, as with his colleagues who preceded him, I will give him as much support as possible. I wish him longevity in his position as a shadow spokesman—[Laughter.] That can probably be taken in many different ways, but I mean to be nice.

We have heard about sentencing and for how long people are imprisoned. Of course, the changes made in 2003 are still coming through the system. As politicians, we all bandy around numbers for how long people serve, but people are, correctly, starting to serve longer sentences. As previous Justice Secretaries and Justice Ministers have said, we have no plan to abolish the mandatory life sentence. I cannot be a hypocrite: as a Back Bencher, I appealed against several unduly lenient sentences, and most people know that I have concerns about the restriction on appeals against undue leniency. People can appeal against basically any sentence they are given, but we are restricted in appealing against unduly lenient sentences. The Attorney General and the Justice Secretary are working on a review of that restriction.

At this interesting time in politics, in Westminster and in the country, it would not be right for me to indicate whether we agree or disagree with the proposals. I was asked whether the Department and I will keep an open mind, and we certainly will. Further debate on this issue is important. I am also conscious that the subject might drift if we are not careful. My notes say that in December 2010 the then Secretary of State, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), indicated that he was not minded to implement the Law Commission’s recommendations, but he qualified that by saying that he would keep an open mind about proceeding at a later date. We are now at a later date. Although I am probably shooting myself in the foot, especially if I stay in this position under the new Prime Minister—we will have one in the not-too-distant future—I think it has been too long. We now need to consider whether we accept the Law Commission’s 2005 report. Time has moved on. Although the report was important, and parts of it were accepted at the time, we must ensure that the report is still relevant, particularly in relation to subsequent changes to sentencing guidance. I cannot think of anything that can be done to another human being that is as bad as taking their life. There are myriad appalling things that people do to each other, but surely, in any society, taking a human life is the worst.

I will keep an open mind. I will ensure that whoever is Justice Secretary in the Government formed by the new Prime Minister sees my comments—the current Justice Secretary knows my views. We cannot let this matter drift for another five or 10 years. If something can be done, we must do it now. It sounds simple, but the lawyers in the room will know that it is not so simple in practice.

I congratulate everyone who has taken part in this debate, particularly the more learned Members. I look at the proposal from a simple point of view as a constituency MP—I think about what my constituents would think—so I agree with many of the comments made by my hon. Friend the Member for Shipley (Philip Davies). I probably have not answered all the direct questions asked by the shadow Minister, so I will write to him, and I will make those answers available to members of the Justice Committee, too.

[Alex Chalk]

This has been a helpful debate. I introduced the topic to see whether there was an appetite for discussing it, and it seems that there is. My hon. Friend the Member for Shipley (Philip Davies) made some important points. He is absolutely right to say that in respect of this offence, perhaps beyond any other, there must be clarity, consistency and logicality. Members of the public must be satisfied that the law reflects common sense.

My hon. Friend’s point about the need for sentencing power to be transparent is also a good one. It is particularly relevant in the issue of homicide. If someone gets a life sentence and is told that they have a minimum term of 15 or 17 years to serve, that is the period that they must serve, yet if they are convicted of an offence of grievous bodily harm and the judge sets a determinate sentence of 15 years, they will in fact serve only half of that.

[Mike Penning]

Or less.

[Alex Chalk]

Yes; a maximum of half. My hon. Friend the Member for Shipley made an important point, and there is a further agenda to put forward.

To return to my central point, if we could divide the law of murder into first and second degree, those charged and convicted of first degree murder, which would be the most serious crime in the criminal calendar, would be convicted of something that would earn—if that is the right word—the opprobrium of society. People would understand that someone guilty of that offence intended to take life. I respectfully endorse the point made by my right hon. Friend the Minister that we need particular clarity on issues involving the taking of life.

What attracts me to the idea of second degree murder is that we could then lump in—if that is not too inelegant—all the other offences that deserve society’s condemnation, as my hon. Friend the Member for Shipley indicated, because life has been taken through an unlawful act. If we grouped those offences under second degree murder, we would not need a mandatory life sentence, but if the judge thought—on the facts of the case—that that was required, that is precisely what could be imposed. Taking into account how the law has moved on in respect of Jogee and of our modern mores and understanding, it seems to me that this is a reform whose time has come.

Question put and agreed to.

Resolved,

That this House has considered the matter of reforming the law on homicide.