Police, Crime, Sentencing and Courts Bill (Eighteenth sitting)

Sarah Champion Excerpts

Committee stage
Tuesday 22nd June 2021 Public Bill Committees

[Chris Philp]

There is a lot to speak to in this group of new clauses, all of which cover the extremely serious question of the evidence given by rape complainants and other victims of sexual violence before the court and the need to make sure that they are properly looked after and that no one is deterred from coming forward with their claim. It would be terrible if people had an allegation and did not feel able to make it because they were concerned about the issues that we have talked about this afternoon.

I will take each new clause in order. New clause 57 talks about the rules around the disclosure of counselling or therapy sessions in some circumstances. It is important to set out how the law currently stands. There are already significant safeguards, and it is worth going through them. First, the police may request advice from prosecutors on whether something might be a reasonable line of inquiry. If they believe that medical notes might be a reasonable line of inquiry, they are allowed to approach the counsellor. They are not allowed to approach the counsellor simply because they believe such notes exist; that is allowed only if they believe the notes would support a reasonable line of inquiry.

If the notes do exist and if there is a reasonable line of inquiry, the police may approach the therapist to ascertain the situation, and the therapist may confirm or not confirm that there is a reasonable line of inquiry to pursue whether the notes do or do not exist. If they do exist, and if there is a reasonable line of inquiry, the therapist or counsellor does not disclose the relevant notes unless the victim gives their consent. The victim can withhold their consent and say, for whatever reason—understandably, in many cases—“I am not comfortable having that disclosed.” Unless there is a court order compelling disclosure, which is a significant process that involves going to the court to get an order, the notes are not disclosed.

If the victim agrees that the notes can be disclosed, that does not mean they will necessarily be produced in evidence or disclosed to the defence. That will happen only if there is material capable of undermining the prosecution or, conversely, capable of assisting the case for the defence. So there are several steps to go through before very sensitive, private and personal information gets disclosed, one of which is the victim’s own consent. That can be overridden only by an order of the court.

[Sarah Champion (Rotherham) (Lab)]

I appreciate how sensitively and proactively the Minister is responding. The problem seems to be the perception as opposed to the reality on the part of the victim and also on the part of the police who, from my constituents’ experience, were routinely saying, “Unless you give us that information, we cannot proceed with the case.” That has a chilling effect, which is why I am pushing for clarity and also a change in the law so that the guidance that should be there now would necessarily flow from that change in the law.

[Chris Philp]

I accept the point that there are instances, such as those that the hon. Lady referred to in her speech and I am sure exist more widely, where victims have had things said to them that are basically not appropriate and that either misrepresent the law as it currently stands or have the effect of deterring someone who would otherwise want to proceed with a case. That is probably one of the things that contributes to the unacceptably low level of rape prosecutions at the moment.

Paragraph 20 of the rape review report explicitly includes working with the police and getting them to take a different approach, frankly, to the one that the hon. Lady described in her speech and intervention. That will avoid the chilling effect. A moment ago, I laid out the law as it stands: it provides significant safeguards, including the victim’s own consent. The issue is not the law, but how the law is being described to victims. That is why this issue is not so much for legislation but for the police and others to communicate more appropriately with victims. I assure the Committee that that is absolutely at the heart of the Government’s agenda for the rape review and other work.

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[The Chair]

I call Sarah Champion if she would like to respond before I call the shadow Minister.

[Sarah Champion]

My frustration is that we always promised jam tomorrow. It is always a report, a review or a consultation. All I want—and I believe the House wants—is for the justice system to be victim-centred rather than causing damage to victims of crime. I heard what the Minister said, and I am content to withdraw the new clause.

[Alex Cunningham]

I do not intend to press new clause 42 to a vote, but I hope that the Government’s future plans will recognise the need for a provision to better serve victims. Similarly, I was mindful of pressing new clause 68, but I am delighted by the clear statement from the Minister quoting, I believe, from the document referred to the Commission. I am satisfied that these issues will be looked at. I hope that it is not just an internal review by the Law Commission but will listen to the views of people outside, including me and my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman).

[Sarah Champion]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 16

Threshold for imposing discretionary custodial sentence

“Section 230 of the Sentencing Act 2020 is amended as follows—

‘(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the principles in subsection (2B), and, in particular, why a community order with appropriate requirements could not be justified).

(2B) When forming an opinion under subsection (2), the court should take account of the following principles—

(a) Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.

(b) Sentences should not necessarily escalate from one community order range to the next at each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence, or offences.

(c) Section 65 of the Sentencing Code (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to push over the custody threshold the sentence for one or more offences that would not themselves justify custody.

(d) Where the offender being sentenced is a primary carer, imprisonment should not be imposed except for reason of public safety.’”—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

I begin by thanking the Centre for Crime and Justice Studies for its work on this new clause. Its considered and thoughtful approach to reform in this area has been utterly invaluable.

This new clause amends the Sentencing Act 2020 to strengthen the custody threshold by making provision for sentencers to state their reasons when imposing a custodial sentence. We have tabled this new clause with a view to encouraging sentencers to use community-based sentences rather than short prison sentences. The benefit of community disposals has been discussed at length in the Committee, especially in our discussion on part 6, and I do not propose to go over those issues again in full.

The Opposition are interested in reforming the sentencing regime to guard in some way against short sentences, which evidence suggests may be associated with higher levels of reoffending than sentences served in the community, and during which there is little time to address the offender’s needs. The Lord Chancellor’s predecessor was acutely interested in reform in this area. In fact, while we are on the topic, I would be interested to hear an update from the Minister on the Ministry of Justice’s unpublished Green Paper that features sentencing proposals to reduce the use of short-term custody. I recognise that his Department’s position has moved on somewhat since then, but the paper may contain an evidence base that is helpful for legislators across the House as we seek to better our criminal justice system. Perhaps he can share some of its findings.

But the current Lord Chancellor is not as enthusiastic about radical reform in this area as his predecessor, so we have tabled a new clause that is a principled starting point for reform on this issue, which we hope the Government can adopt and build on. The aim of the new clause is to reduce the use of custody for less serious offending, for which there are better and more appropriate responses in the community sentencing framework.

The premise of reserving imprisonment for serious offences is already established in statutory terms in the Sentencing Act 2020, section 230 of which states:

“The court must not pass a custodial sentence unless it is of the opinion that — the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

However, it notes that the threshold is generally not applicable

“where a mandatory sentence requirement applies”.

But even though we already have statutory provision that should guard against it, HM Inspectorate of Probation’s 2019 inspection on “Post-release supervision for short-term prisoners” recognises that, in reality, people continue to go on an “expensive merry-go-round” of multiple wasteful short prison sentences.

The report noted that within the cohort of offenders on short prison sentences, women are disproportionally serving such sentences, with 15% of all female prisoners on them as compared with 6% of male prisoners, and that many in the cohort

“go in and out of prison for acquisitive crime associated with the dual diagnosis of mental health and addiction needs, but specific data are not available for this group.”

Even the Government’s sentencing White Paper shows little enthusiasm for the efficacy of short sentences in our current framework, describing them as offering

“temporary respite from offending behaviour”

and

“at best providing limited public protection, as most offenders continue to reoffend following release.”

Outside the strengthening of the threshold for remand for children, however, the Bill as we have it does not make reforms to improve our regime with regard to short sentences or custodial periods.

The new clause would address that missed opportunity in the Bill and build on principles already accepted in sentencing guidelines, enshrining them into legislation to better clarify the currently rather opaque statutory custodial threshold. Specifically, it aims to better ensure that sentencers are appropriately reserving custody for serious offences by better clarifying the assessment that sentencers are required to make, and that the impact of imprisonment on dependent children is considered in the sentencing of primary carers. The latter point is an important one, and we will discuss it more fully when we get to new clause 26.

The clause also limits the relevance of previous convictions in determining custodial sentences. For the principle of reserving imprisonment for serious offences to be met in practice, it would be helpful to separate the issue of persistent low-level offending from that of serious offending. There is a range of low-level offending behaviour that is exacerbated rather that eliminated by short sentences, and which would be much better addressed by appropriately severe community sentences. Importantly for the current Lord Chancellor, perhaps, the clause as it stands does not eliminate short sentences. Speaking to the Justice Committee in 2019, he explained he did not believe abolishing short sentences was the right way forward, and said:

“My own experience as a recorder teaches me that there are times when, however reluctantly,”

short term prison sentences

“should be available to judges and magistrates. For example, repeat offenders who fail to comply with community orders ultimately need the sanction of custody”.

The clause does not prohibit short sentences altogether; indeed the Opposition would have several reservations with that proposal, including the fact that it has been shown to lead to sentence creep.

[Sarah Champion]

My hon. Friend is making powerful points. Does he agree that the new clause would prevent the expensive merry-go-round of short-term wasteful prison sentences that do not ever address the nub of the problem? We are not trying to prevent short-term prison sentences, but to deal with the situation of the repeat offender going round and round, which costs so much and blocks up the system.

[Alex Cunningham]

That is most certainly the case. This is not just about cost, yet the cost to the Prison Service of accommodating people in prison even for very short periods is absolutely huge. The real effect, however, is not monetary; money is not the only factor. There is the whole issue of the effect on the family, and, as my hon. Friend said, the effect on the prospect of reoffending.

In Western Australia a ban on prison sentences of up to six months resulted in an increase in prison sentences over six months for law breaking that would previously had received a shorter prison sentence. It does not even go as far as introducing a presumption against short prison sentences, though this is an approach with something to be said for it and which has had some success in other countries, including my homeland, Scotland. Instead, the clause simply requires the court to explain why it believes a custodial sentence is appropriate and a community sentence cannot be justified. This will focus the mind of the court to ensure that custody is being used as the most appropriate option, not the simplest one. It also has the added benefit of improving accountability and understanding of sentencing decisions, which is important for public confidence in the criminal justice system.

As Adrian Crossley of the Centre for Social Justice said in one of our evidence sessions:

“We need to be much bolder about the amount of people we keep out of prison and deal with in the community. We can see clearly that in treating alcohol, drug addiction, mental health problems, literacy and numeracy, you are far more likely to have an effect on those key drivers of crime if you deal with people in the community than if you put them in prison. We could be much bolder in dealing with community disposals. There is a real risk of sentencing inflation here, of a prison population growing out of control and, in my view, of brutalising people who might otherwise be able to reform.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 42, Q58.]

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[Chris Philp]

We do recognise that there are challenges in making sure that offenders leaving prison are given access to the services they need, so that they can get their lives back on track. However, Friday is a working day, and we would prefer to focus our efforts on making sure that those services are available on Friday, rather than on excluding Friday as a release day and therefore concentrating all the releases on just four days—Monday, Tuesday, Wednesday and Thursday—which, by definition, would mean that release numbers on those days were 25% higher than would otherwise be the case.

[Sarah Champion]

I hear what the Minister says, but the new clause would mean that we could address any issues on a Friday and before the weekend, when no staff are available.

[Chris Philp]

In terms of ensuring that people have access to the necessary services—we recognise that that needs to be done—significantly increased investment is being made to address the concerns that the hon. Lady has just raised. For example, in January this year—just a few months ago—the Government announced a £50 million investment to reduce crime and tackle the drivers of reoffending. That included work to help develop the Department’s approved premises—those are obviously important when somebody is coming out of prison—to provide temporary accommodation to prison leavers at risk of homelessness in five key probation areas. In addition, earlier this year—again, I think it was in January or February—an additional £80 million was announced, which was aimed at expanding substance misuse programmes. Those two initiatives, funded this calendar year with £50 million and £80 million, are aimed at tackling prisoner homelessness issues and, separately, drug addiction problems, so there is a real commitment to do more in this area.

I would like to turn to the question of Scotland—the shadow Minister’s native home. As he said, it legislated in 2015 to allow release not five days earlier, but up to two days earlier. A Freedom of Information Act request made just a few months ago uncovered the fact that over the six years that Scotland has had this provision, only 20 people have been released early under it, so it has not had an enormous effect in Scotland.

We would like to focus our efforts on making sure that when people are released on a Friday they are properly looked after, instead of increasing the numbers on Monday to Thursday—

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[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

I thank the hon. Gentleman for his speech. He does not need to implore this Government to listen to the girls he has quoted. Not only are we listening, not only have we listened, but we are following through with a tackling violence against women and girls strategy that is truly ambitious and, I believe, an unprecedented effort to tackle the issues that the girls he quoted have to contend with.

As I said, we conducted the first ever call for evidence on tackling violence against women and girls. No other Government have gone out to the public as we have to ask girls and women for their experiences of what they face day in, day out in their lives. We opened the conversation to the whole of society, so men and boys were very welcome to contribute as well.

I set my officials the challenge of reaching a young woman in her 20s, getting the bus home from work at night, who would not normally respond to surveys. We would somehow try to find ways of reaching her. Not only did we try that in December, but following the awful events of earlier this year—I deliberately do not name anyone, because I am respectful of the family, but I suspect we know the events of which I speak—we reopened the survey, precisely because we understood that women and girls want to talk and to share their experiences.

That is when we received 160,000 further responses. Each and every one is being read and considered carefully in drawing up our tackling violence against women and girls strategy. However, because the Government place so much focus on crimes that disproportionately affect women and girls, we have also decided to focus not one, but two national strategies on such crimes. For the first time, therefore, we have split out domestic abuse from the catch-all phrase “violence against women and girls”, not because we are trying to de-gender it or to deny that the crime disproportionately affects women and girls, but because it is such a high-volume, high-harm crime that it deserves its own national strategy. Thus, we are giving it the focus it deserves in the domestic abuse strategy, which will be published later this year, after the VAWG strategy.

If nothing else has come out of recent events, it is that the range of offences that VAWG covers is significant, so we cannot pretend that a one-size-fits-all approach will suit all those crimes. We do not try to do that, and we are certainly not working towards that. We want to have tailored strategies fit for the 2020s, looking at both offline and online behaviour.

[Sarah Champion]

I hope the Minister is aware of how grateful I am for all the work she has done on this cause. She has really been a champion for it. Is she able to share with the Committee her thoughts about whether the crime is increasing or our awareness is increasing? Does she have any thoughts she can share about the root causes of this, and therefore how early prevention will stop it happening?

[Victoria Atkins]

It is a complicated answer to a complicated question. We know, for example, that some forms of crime are increasing, and there is ongoing academic research into some of those, but we have reason to believe that more women are reporting facing violent acts within sexual relationships. That encompasses a range of relationships, from intimate, long-term relationships to first dates. That is precisely why, on the Domestic Abuse Act 2021, we worked across the House with colleagues to clarify the law on the so-called rough sex defence, because we knew that women in intimate, long-term relationships and in shorter relationships were experiencing that. Through that Act, we also brought in the prohibition on non-fatal strangulation, and again we worked on a cross-party basis. There is emerging evidence, particularly on the latter, that more and more victims of domestic abuse, but also those in other types of relationships, are facing these acts within—to use shorthand—the bedroom. We very much wanted to put a marker in the sand to say, “This sort of behaviour is not healthy, and it is now not lawful.”

The thinking is that those sorts of behaviours have increased over recent years. The thinking behind that is that online pornography has had an impact. However, I refer the hon. Lady to the research that I commissioned when I was Minister for Women and Equalities on the impact of online pornography and attitudes towards women and girls. The Government published that a few months ago. It is fair to say that there are not quite the clear lines that some would expect, but there are common themes there, if I can put it as broadly as that. Online pornography is a factor with some crimes, but sadly violence against women and girls is—dare I say it?—as old as time. The ways in which a minority of men—I make that absolutely clear—see fit to behave towards women and girls is part of the Gordian knot that we must try to untie. It will be a longer-term process than this Bill or the next Bill that comes along when legislation is appropriate. It will require a cultural education journey, as well as shorter-term fixes.

I am very pleased that the hon. Member for Stockton North raised the Law Commission research. As part of our work on ensuring that the law is keeping up to date with modern practices, we have commissioned a lot of work from the Law Commission recently. I do not apologise for that. In fact, it gives me the opportunity to thank the Law Commission for the work it conducts, often looking into very complex areas of law and trying to find ways through in order to assist this place and the other place in updating the law.

The current investigation into hate crime illustrates that point very well. In 2018, we asked the Law Commission to consider the current range of offences and aggravating factors in sentencing and to make recommendations on the most appropriate models to ensure that the criminal law provides consistent and effective protection from conduct motivated by hatred towards protected groups or characteristics. The Law Commission published its consultation document in September. It was an enormous document—more than 500 pages and 62 separate questions. The Law Commission has been very clear that the consultation document was exactly that; it was not a report or a set of conclusions. It does not represent the Law Commission’s final position on any of the issues raised.

I make that point because the new clause invites Parliament to adopt those recommendations wholesale, and I think we are all duty bound to acknowledge that what we have had so far from the Law Commission is a consultation document. It is not its final report. Indeed, the Law Commission hopes to report in October, and of course the Government will give that report very, very careful consideration. I do not believe, however, that it would be appropriate for this Government, or indeed any Government, or any Parliament, to sign what is effectively a blank piece of legislation without seeing what the Law Commission is going to recommend.

We do not know what the consequences may be of the recommendations, nor what would be required to enact and enable them. It may be, for example, that changes to primary legislation would be required. I have to say that I feel uncomfortable at the prospect of the Bill permitting other parts of primary legislation to be overwritten—overruled—by virtue of the super-affirmative procedure. We must surely ensure that significant changes to the law should be properly debated by both Houses of Parliament in the normal way, with any Bill going through all the normal processes and stages.

I gently suggest to the Opposition that perhaps they should be careful what they wish for, because in this very Bill clause 59 gives effect to the Law Commission’s recommendation relating to the common law offence of public nuisance. It made that recommendation in 2015 and recommended that it be put into statute. If I recall our deliberations correctly, the Opposition opposed that very clause. I cannot imagine what the reaction would have been had we attempted to have this super-affirmative procedure imposed in relation to clause 59.

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[Sarah Champion]

Will my hon. Friend comment on Nottinghamshire police’s pilot on misogyny as a hate crime? They thought it worked exceptionally well in challenging behaviour. That is the sort of thing that we need rolled out across the country.

[Alex Cunningham]

As I said earlier, we have evidence that things are working in some areas and that there is a real need to do much more across the country. For that reason, we should be strong enough to accept with confidence that we can examine the Law Commission’s recommendations later in the year and commit the decision making to a legislative Committee. On that basis, I shall press new clause 19.

Question put, That the clause be read a Second time.

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Investment is being made in protecting women and girls from stalking offences, including the safer streets fund, to which £45 million has been given this year, which is designed to keep the streets safe more generally, and specifically £25 million to do more to protect women and girls, and rightly so.

[Sarah Champion]

I am listening intently to everything the Minister and his colleague are saying, which is great, but does the Minister understand that we have been promised all this for a long time? Although we are hearing his promises, we are awaiting the outcomes of reviews for which we are not given dates. Women are being murdered and abused.

[Chris Philp]

My colleague, the safeguarding Minister, tells me that the refreshed VAWG strategy will be published this year, in less than six months. I hope that gives some reassurance to the hon. Lady. If she is asking for action, I would point to the extra £25 million VAWG-specific funding, the new offences created in 2012 and the doubling of sentences in 2017. Those are not promises for the future, but actions that have been taken. She should also note that three quarters of those convicted of the offence get immediate custody, and that immediate custody of 16.9 months is more than three times longer than the minimum proposed in the new clause.

We want to make sure that those found guilty of those bad offences, which are terrible in themselves and can lead to escalation, are getting appropriately punished. But we are trying to strike a balance between that and the need to give the judge the ability to consider the individual case on its merits. That might include, for example, the perpetrator having mental health issues, where treatment might be more appropriate than custody. We need to tread carefully in striking that balance.

Given the action that has been taken and that three quarters of the offenders get immediate custody for a term much longer than the minimum proposed in the new clause, we are trying to strike a balance, which is not easy. There are good arguments on both sides of the issue, but we feel that the current sentencing laws make sense in this context. We have made a commitment to keep this under ongoing review and there are other legislative vehicles that could reconsider the issue. I am sure that the VAWG strategy, which my hon. Friend the safeguarding Minister is overseeing, will consider all the issues in the round, when it reports a little later this year.

These are difficult issues and difficult balances to strike, but I hope that I have explained why I believe the Government’s approach strikes that balance.

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[Sarah Champion]

I support the new clauses, because I have yet to see a positive reason for women going into prisons. As my hon. Friend is saying, the impact on children is dramatic, but it is not only the fact that children are more likely to themselves face criminal actions; it is also that, on every measure, children going into care fail to achieve their potential. We really are damning children by doing this to their mothers.

[Alex Cunningham]

We certainly are. I quoted the figure earlier; some 95% of children end up leaving their home when their principal carer goes to prison, which bears out what my hon. Friend says.

The 2017 Farmer review found that family ties are a factor in reducing reoffending, which has attendant benefits for all our communities. The Government’s own 2018 female offender strategy acknowledges that

“custody results in significant disruptions to family life”

and that many women

“could be more successfully supported in the community, where reoffending outcomes are better.”

Sentencers are already expected to consider the impact on child dependants, but it seems that in reality the current guidelines are not applied rigorously or consistently across all cases.

The Joint Committee on Human Rights found in its 2019 inquiry “The right to family life: Children whose mothers are in prison” that despite the fact that the Sentencing Council had strengthened its guidance to judges and magistrates about the need to consider dependent children,

“evidence to the inquiry clearly indicated that this guidance is not being satisfactorily adhered to in practice and the question remains whether these steps go fast or far enough to guarantee children’s rights.”

Taken together these clauses will strengthen sentencers’ existing duties to ensure that they are applied consistently across all cases and that, as a result, children’s rights are guaranteed.

I will now consider the new clauses that deal with sentencing provisions. New clause 32 amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child. The Joint Committee has raised concerns about the current quality and use of pre-sentence reports and in its inquiry was told that pre-sentence reports were

“vitally important in ensuring that courts have all the information necessary about dependent children before sentencing a primary carer,”

but written evidence from Dr Natalie Booth noted that they were used

“inconsistently and ineffectively in many cases”.

New clause 33 amends section 52 of the Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child. New clause 34 would create a requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.

The Opposition believe that these new clauses can help address the current inconsistency that I previously referred to by explicitly requiring sentencers to give due regard to the impact of a sentence on any dependent children and their welfare. As the Joint Committee on Human Rights notes:

“These new clauses merely reflect what ought to, but sadly often does not, happen—to consider and respect the rights of the child when a primary carer is sentenced”.

As Dr Paradine of Women in Prison told the Committee in one of our evidence sessions:

“It is completely unacceptable that the measures up until now have not resulted in the change needed. This is an opportunity to make that small change. It does not require anything different, but it will make sure, hopefully, that the things that should be happening in court do happen, that imprisonment is not having a disproportionate impact on children and that their best interests are safeguarded.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 150, Q255.]

I think Dr Paradine puts it very compellingly; these are things that are already meant to happen in the court, yet in many cases they still do not.