Unduly Lenient Sentences

Mike Penning Excerpts

Wednesday 6th December 2017 Westminster Hall

[Sir Mike Penning (Hemel Hempstead) (Con)]

I beg to move,

That this House has considered unduly lenient sentences.

It is a pleasure to have this debate under your chairmanship, Mr Davies. The debate can be no surprise to the Solicitor General or to the Ministry of Justice. We have an hour, so I will keep to a couple of points that I have been making for the nearly 12 years I have been in the House, and I will leave it to other colleagues to raise other issues. I have purposely worded the motion so as to allow as many colleagues as possible to join the debate. The subject is not a controversy or party political in any shape or form. Some of this could have been addressed under the previous Labour Administration. Indeed, they tried to address it, as did the coalition; I certainly tried to address it when I was the Minister with responsibility for police, justice and, in particular, victims.

I come at the subject from the point of view of the victim. If the criminal justice system is to do what it says on the tin, it has to side with the victim. What worries me is that parts of court sentencing make victims feel, quite rightly, that the system is not on their side. There are two obvious anomalies. Anyone who has been found guilty has the right to appeal against the severity of their sentence. There is no argument about that. In a civilised society, that is right and there is a procedure for it.

In our courts, however, the procedure for victims, a victim’s representative or someone such as their MP to appeal against the undue leniency of a sentence is quite perverse. The guidance on the Government’s website, under “Ask for a Crown Court sentence to be reviewed”, is vague:

“Only certain types of case can be reviewed, including…murder…rape…robbery…some child sex crimes and child cruelty…some serious fraud…some serious drug crimes…some terror-related offences”,

and—without the word “some” this time—

“crimes committed because of the victim’s race or religion”.

The word “some” leaves things open in anyone’s mind, making it enormously difficult for the public we represent to understand what can and cannot be appealed against.

When I was a Transport Minister, I noticed the classic example of death by dangerous driving. Death destroys a family, and if drink and drugs are involved in the case, the sentence is appealable. A sentence for death by careless driving, however, is not. Although really serious offences are tried in the juvenile courts, my understanding is that it is not possible to appeal against undue leniency. If I am wrong, I am sure the Solicitor General will tell me.

[Gareth Johnson (Dartford) (Con)]

I congratulate my right hon. Friend on securing this important debate. Is he aware that more than 40% of sentences referred to the Attorney General are refused simply because they fall outside the scheme, and that has included at least one case of rape from the youth courts? Does he agree that that explains the clamour from the public to widen the scope of the scheme?

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[Sir Mike Penning]

My hon. Friend hits the nail on the head. I congratulate him on the work he has done to address the law in this area. If we work together across the House, we can address what he wanted his Bill to do with regard to other anomalies. When we talk about the juvenile courts, we think about really young people, but I could have been prosecuted in a juvenile court—had I committed an offence—while I was serving in the Army, which I joined when I was 16. It seems to me that we are removing a whole plethora of cases—with victims who still desperately need to feel that they have been heard and listened to—simply because they were tried in a certain type of court or involved a certain type of offence.

[Rehman Chishti (Gillingham and Rainham) (Con)]

I pay tribute to my right hon. Friend for securing the debate. He has mentioned his time as a Transport Minister. I completely agree that one should do everything one can to support victims, but at the same time one should prevent people from becoming victims in the first place. Does he agree that, in certain circumstances—such as sentencing for driving while disqualified or drink-driving, for which only a six-month custodial sentence can be given by the lower courts—we need not only that review of unduly lenient sentences, but a review of sentencing in the wider context, including for such transport matters?

[Sir Mike Penning]

Absolutely. Colleagues across the House will bring up such anomalies during this debate. I am enormously proud of the very few drug-related driving offences that were prosecuted—I had the honour of being the Transport Minister when we introduced the drugalyser at the roadside—as well as of the first prosecutions that took place, although that took nearly four years and I was in the Ministry of Justice by then. But the sentencing also needs to be a deterrent. People need to realise that when they commit certain offences, the penalty will fit the crime. If people go before magistrates courts—I think this is what my hon. Friend was talking about—knowing that they will get only six months, they will not opt for trial by jury or to go up through the system to be tried before a judge in the Crown Court. I agree—though this is not something I will concentrate on today—that we need a much wider debate on the types of sentencing to which I am referring.

Before I became a Minister, I did try—I appealed against the leniency of sentences, particularly those to do with paedophiles. I had real concern about some of the sentences for paedophiles who not only did not plead guilty, but did not think that they had done anything wrong, and I have always had concerns about racially aggravated offences. I think such offences are an abhorrence to our society.

I appealed successfully. One of my constituents was murdered by a man called McLoughlin, who was out of prison on day release. He attacked my constituent’s neighbour and my constituent did what I hope I would do, which was defend their neighbour, but they were murdered. McLoughlin was found guilty in the courts and given a sentence of something like 20 years—don’t quote me on that. We all knew what would happen—it would be three years or something. Nor was that the first offence, because he had murdered before. I appealed to the then Labour Attorney General that the sentence was unduly lenient. He should have got a much more severe sentence, or at the very least an indeterminate one.

In court the judge had said, “I cannot give an indeterminate sentence, because the European courts will strike it down.” That was like a red rag to a bull. The sentence a judge in our courts gives has nothing to do with a European court. We subsequently won the appeal—the Attorney General agreed with me, as did, eventually, the Court of Appeal. McLoughlin was eventually given the right sentence, which was an indeterminate one. Hopefully, he will spend the rest of his life in prison. That will never bring back my constituents’ husband and father, but the original sentence was wrong.

When I got into being a Minister, in particular for policing in the Ministry of Justice, I kept asking: why are we not addressing those anomalies in the law? It is fundamentally unfair that victims do not have the same rights as the perpetrators. The Ministry of Justice is not represented in the Chamber today, but I know that the briefing would be that the cost implications of having more people in our prisons are disproportionate.

I am afraid that that is tosh. I have seen no physical evidence for that—not in the whole two and a half years I was in the Department, and I asked for it several times. The Attorney General and I debated it around the ministerial table and with the Prime Minister, who was then the Home Secretary. We never got to the bottom of the great opposition in the Ministry of Justice to more people going to appeal. In actual fact, from the other end of the telescope it looks like fewer people go to appeal because they do not all opt to go to the Crown Court, opting instead for their defence to be heard by their peers in a magistrates court. There is no evidence and we do not know exactly what is going on.

[John Howell (Henley) (Con)]

Surely one solution is to ensure that the sentencing is correct at the beginning. The Select Committee on Justice is a statutory consultee of the Sentencing Council. It has to give opinions on the sentencing proposed in the council. Does my right hon. Friend agree that the Committee should take a much tougher line?

[Sir Mike Penning]

My hon. Friend is a member of that Committee and it should take a much tougher line and a much closer look at the issue of fairness or unfairness. I may be wrong—I may be banging my head against a brick wall. Perhaps victims do not want their voices heard. Perhaps they do not want to feel that they are equal in the courts.

In the past few weeks I have taken up the biggest anomaly, which really upsets me. I appealed recently against the sentences given to a group of gentlemen—I use that word advisedly—who were involved in the sex gangs in Newcastle. I can say that because they have been convicted. When I saw the sentence, I was very surprised that the judge had not taken into consideration that the crimes were obviously racially motivated. All the girls but one, I think, were white, and nearly all the perpetrators were of Asian extraction. That is not casting aspersions on the whole community; they are simply the facts.

I wrote to the Attorney General, to ask whether he would kindly look into this, whether he agreed that the sentences were unduly lenient and, if so, whether he could refer the issue to the appeal court. To my astonishment, a very polite letter came back from the Attorney General that said, “I’m really sorry; I cannot look into this, because you are outside the 28-day limit. You have to appeal within 28 days to the Attorney General.” I said, “It was only in the papers the day before yesterday”. “Ah”, said the Attorney General, because the judge had put a restriction on reporting the sentencing. The sentence had actually taken place about two and half months beforehand. The victims did not know that and neither did we. No one knew, so it was not possible to appeal against the leniency.

From conversations that I have had with the Solicitor General, I know that he will come up with some ideas. The situation, however, is an insult to those victims whom we are supposed to represent, not just here but in our courts, so that justice is seen to be done. I ask the Solicitor General: is there an answer? A pretty simple answer would be that, if the judge puts a restriction on court reporting, the Attorney General should be informed of the sentence and be able to look into it. Even though that is a step in the right direction, the problem is that the victims do not know, so their legal representatives are not able to appeal on their behalf, and neither are we. We need to do something about that. I have previously discussed with the Attorney General the issue of how to get justice for victims and I got quite an interesting response. It was very different from that which I received form the Ministry of Justice. The simplest way for victims to get justice would be to make it possible to appeal against unduly lenient sentences in the Crown court. That option is available to the perpetrators—those found guilty of a crime have those rights—so why is it not available for victims?

[Mr Gregory Campbell (East Londonderry) (DUP)]

Will the right hon Gentleman give way?

[Sir Mike Penning]

I will just say one last thing and then I will give way, as I am conscious of the time. I am absolutely passionate about this issue. I believe that we have the greatest criminal justice system in the world, but it needs to learn from what it is doing wrong. This is one example of that.

[Mr Campbell]

I thank the right hon. Gentleman for giving way and I congratulate him on securing the debate. Does he agree that the 28-day limit is in all probability against the spirit in which it was introduced? Does he agree that a way around that would be that any time limit, be it 28 days or more, should be applicable from the time when any relative or victim becomes aware of the leniency of the sentence given by the court?

[Sir Mike Penning]

I completely agree with the hon. Gentleman. The appeal system states that it is not just the victim or their MP who has the right to say that they think there is an anomaly and that something has gone wrong. Anybody can appeal. The only way that they can do that is if the 28-day period starts on the day that the sentence becomes public. That is the only way it can work. We can consider other ways to do that, but I think that is the only way. It should be possible to appeal against all unduly lenient Crown court sentences. I have not seen any evidence of exactly what that would cost. We all understand the issue of cost, but it is important that the justice system is fair.

The 28-day period has to be addressed. There is something fundamentally wrong. There are cases where people have been unwell following the loss of a loved one and have not had the opportunity to appeal in time. The judges have a very limited power and once the 28 days are over, the Attorney General cannot do anything. That has to change.

I will get lots of letters tomorrow morning saying that I should have brought up lots of different subjects. One particular subject I want to raise is cruelty to animals, which is fundamentally wrong. I think that sentencing for cruelty to animals is really wrong and it needs to be addressed. There are human victims of that crime, as well as the animals subjected to cruelty. There are lots of other issues, too. I wanted this debate to concentrate specifically on the victim, and I hope that I have done that.

[Several hon. Members rose—]

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[Philip Davies (Shipley) (Con)]

One of the good things about our last manifesto was our clear commitment to extending the unduly lenient sentences scheme, which was a continuation of our clear commitment in our previous manifesto. I just wish we would get on with it. The scheme has been modestly extended to include some terrorism-related offences, but we need it to cover far more offences.

I regularly criticise the justice system, but one of the good things about it is the ability to challenge sentences that fall outside the normal bounds of leniency. I have successfully used that provision a few times, and I congratulate the Solicitor General, who has done a brilliant job in appealing many unduly lenient sentences with great success.

One recent example of the power of the scheme is the case of Safak Sinem Bozkurt. She was a prison officer who smuggled phones, SIM cards and drugs into prison. She avoided prison because of her children. When the case was appealed, counsel on behalf of the Solicitor General said that her children could not be used as a “trump card” to avoid jail. The judges agreed that the sentence was too lenient and she was rightly sent to prison.

It is frustrating when cases cannot be appealed because they do not fall within the scheme. Ironically, there can be variation where the same offence is charged differently. For example, where someone is charged with sexual activity with a child, their sentence generally can be appealed, but where they are charged with sexual activity with a child while in a position of trust, it cannot be.

[Sir Mike Penning]

I wanted to cover this point. Actually, the legal profession have to look at themselves as well, because often they advise clients to plead guilty to one offence, knowing that it is outside the scheme, rather than defending themselves inside the scheme. The legal profession are telling them what to do to beat the system.

[Philip Davies]

My right hon. Friend is absolutely right, and I am grateful to him for highlighting that point. The inability to appeal a sentence based on charging and not the facts has led to some very low sentences. One example involved a transsexual called Gina Owen, whose case was before the court last year. She pleaded guilty to two counts of causing or inciting a child to engage in sexual activity 12 years earlier, before she underwent sex reassignment surgery. She only pleaded guilty on the day of the trial when the charges were amended.

Gina Owen was employed as a taxi driver by the local council to drive children to a special school in Somerset. During the six-month period of abuse, I understand that Gina Owen made the victim tie her up in bondage sessions, urinate in her mouth and humiliate her by hitting her then-male genitals. Gina Owen was 61 when the matter came to court and the abuse was of a boy who was around 13.

I raised the case with the Solicitor General, who wrote to me to say:

“The CPS has now considered the amendment to the indictment and concluded that counsel’s approach was wrong. Their clear view is that…he was at all times under the age of 16. Therefore, there was a realistic prospect of conviction for the under 16 offence. This is clearly a more serious offence than the position of trust offence, carrying a maximum penalty of 14 years, as opposed to 2 years. It is also in the unduly lenient sentencing scheme. The CPS’s view is that it would also have been in the public interest to prosecute”—

for that more serious offence—

“notwithstanding the possibility of a plea to the position of trust offences.”

As a result, the defendant received a conditional discharge, which was wholly inappropriate given the circumstances—no punishment at all, to be perfectly honest. What kind of justice is that for the 13-year-old boy who was abused? The whole saga was made worse by the fact that nothing could be done to appeal the sentence because of the charging of that offence. This is an obvious anomaly that needs fixing, and it could be easily done. It is accepted that the scheme has grown in a haphazard fashion and that that has given rise to inconsistencies. I therefore hope the scheme will be widened further.

I also hope, like my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning), that the time limit for the scheme will be changed, because 28 days is very little time for someone to find out about a case and get their objections to the Attorney General. Sometimes, victims do not find out in time about the sentence or they may not be aware that it can be appealed until it is too late. I know that Families Fighting for Justice supports the change, and I have previously tabled amendments to Bills to try to achieve it. I appreciate that the period cannot be indefinite, but the very strict 28 days has meant that some criminals have certainly evaded real justice.

Jean Taylor, the campaigner from Families Fighting for Justice, has had some terrible examples. People have been convicted of serious crimes such as murder and not been able to have their cases considered again because of the strict 28-day limit. I therefore hope that the Government will revisit the scheme, and I congratulate my right hon. Friend for bringing this matter to the House’s attention.

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[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Davies. I, too, congratulate the right hon. Member for Hemel Hempstead (Sir Mike Penning) on securing this debate. He makes a powerful and persuasive case.

To cut to the chase, clearly the point the right hon. Gentleman makes about unreported sentences and the strict application of the 28-day rule is unanswerable. That definitely needs fixing. However, the main question he has asked us today is: why should the category of case in which a prosecution can appeal against unduly lenient sentences be limited? As hon. Members have set out, the Attorney General can refer unduly lenient sentences to the Court of Appeal, but only where offences are triable on indictment or are one of a restricted number of specified “either way” offences. The right hon. Gentleman made a powerful case as to why that should change. There seems little logic in such restrictions, so could they be lifted?

I know there are always dangers in comparing the two legal systems, but let me briefly mention the position in Scotland, which I think is relevant and may assist the right hon. Gentleman’s case. The right to appeal against sentences in Scotland is contained in the Criminal Procedure (Scotland) Act 1995.

[Sir Mike Penning]

I am a great advocate of devolution—I was a Minister involved in devolution. This is a devolved matter; this is about English courts and Welsh courts. I do not really understand why, in the limited time we have for this debate, the hon. Gentleman is going to talk about what is going on in the Scottish courts. We can have a debate on that another day. This is about English and Welsh courts.

[Geraint Davies (in the Chair)]

Order. This is a matter for the Chair. The Scottish National party is entitled to respond to the debate. I invite Mr McDonald to continue.

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[Nick Thomas-Symonds]

I was referring to the statistics about the number of cases that have been referred to the Court of Appeal and subsequent increases. In 2015 there were 136 referrals, and 102 sentences were increased. In 2016, which is the most recent year for which there are statistics, 190 cases were referred and 141 sentences were increased.

I raise those statistics to put the debate in context. Each year, there are about 80,000 Crown court cases. I agree that there is a need for clarity and confidence in the system, which has come through powerfully in all the contributions. We need that at the police and investigation stage, at the charging stage—a number of Members referred to charging issues—and when cases are proceeding through the courts, as well as in the trial process, in the sentencing process and in terms of the options available at sentencing. It is vital that all those things are communicated. The hon. Member for North Devon raised the issue of reporting restrictions. There have to be ways to ensure that victims and their families are still aware of what has happened and get an explanation for why a particular sentence has been imposed.

All those things are very important, but I come back to the fact that in 2016, there were 141 increased sentences and 80,000 Crown court cases. We have to look at where there have been issues with sentences that fall outside the reasonable band.

[Sir Mike Penning]

Using statistics is a wonderful thing. As a Minister, you get them thrown at you all the time. With all due respect, the shadow Minister is not comparing like with like. We can only use the figure of how many sentences are appealed if every one of those 80,000 cases is appealable, and they are not. That is the problem. I understand where he is coming from. We do not want the courts swamped. I do not think they would be, but I am still looking for the evidence from the Justice Department. We are not comparing like with like.

[Nick Thomas-Symonds]

As a matter of fact, it is obviously the case that the unduly lenient sentence scheme does not cover the entire 80,000 cases. I totally accept that. That is absolutely correct.

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[Sir Mike Penning]

I thank the Solicitor General for moving significantly on this matter. I know how difficult that may have been, given the negotiations with other Departments, some of which I may have been a Minister in myself. I know that in relation to some of the things that I have asked for, there are real concerns in other Departments. But I come back to the victims. The victims do not want the thresholds changed. They just want a level playing field. They want to know that justice is being served—that the system does what it says on the tin. It is vital, when they go to court, that they are being represented and they know what is going on. I—