Amendment 195

Police, Crime, Sentencing and Courts Bill - Committee (7th Day) (Continued) – in the House of Lords at 5:15 pm on 10th November 2021.

Alert me about debates like this

Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

195: After Clause 101, insert the following new Clause—“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “appropriate custodial sentence (or order for detention)” means—(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. (4) In this section “the required minimum term” means seven years.”Member’s explanatory statementThis amendment would ensure those found guilty of abduction, sexual assault, and murder would receive a Whole Life Order as a starting sentence.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

My Lords, this group contains three amendments in my name, and a Clause 103 stand part debate in the names of my noble friend Lady Massey and the noble and right reverend Prelate the Bishop of Derby, neither of whom appears to be here at the moment. The amendments fall into two categories, but I make no complaint about them being grouped together. Amendments 195, 196 and 197 are based on the deep concern on this side of the Committee that the Government have not done enough in the Bill to mark their animosity to violence against women and girls.

Amendment 195 proposes a minimum sentence for an offence of rape under Section 1 of the Sexual Offences Act 2003. That minimum term—of seven years—applies unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so. I propose that minimum term for rape without one iota of apology.

The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that particular offence merits a minimum sentence except in exceptional cases.

I strongly agree with the proposition that one should keep those sentences to the minimum. I also strongly agree with the noble and learned Lord, Lord Thomas, that, where Parliament says “exceptional circumstances”, for all the impressive sophistry of the noble Lord, Lord Wolfson, it is definitely saying, “We want the norm to be whatever the minimum is, and as few cases as possible should not be in the norm”. There is nothing wrong with Parliament doing that. Rape, in our view, is one of those cases.

I have the greatest respect for the judges—indeed, I should say as a declaration of interest, I am married to a judge—but I disagree strongly with the proposition that the effect of the amendment is to force judges to pass “unjust” sentences. Was the position after the 2003 Act was passed, which in effect increased the starting point for murder and the minimum term, that judges begin to pass unjust sentences? Of course not; what the judges were then doing was reflecting what Parliament had determined the framework was in relation to those sentences.

Without apology, I therefore say that there should be a minimum sentence for rape. That sentence should be departed from only in exceptional circumstances. It is important that Parliament sends out that message.

The second amendment, Amendment 196, says that where the name of a complainant in serious sexual cases is revealed by somebody, instead of it only being a fine that can be the sentence, they should be susceptible to a maximum of two years in prison. For very many people, it being made public that they have been the victim of a sexual assault is something of enormous anxiety. Parliament should send out the signal that where people reveal names, they could have a sentence of as high as two years—I am not saying in every case or as a minimum, but I am saying that Parliament should mark the seriousness of this and the fact that people can be put under enormous pressure by the threat of publicity.

The third amendment that we propose would require, in relation to a murder case which involves the abduction and sexual assault of a person, and then their murder, that the starting point for a crime as heinous as that should be a whole life term. Of course, applying the 2003 Act, the judge would need to take into account other factors, but a whole life term should be the starting point. There should not have been, as there was in a recent case, a debate about whether a whole life term could be imposed. We think it important that this Bill addresses the fact that violence against women and girls is not adequately dealt with by the criminal justice system at the moment. We are concerned that it does not do that. I put forward those three amendments without an iota of an apology.

The fourth thing in the group is whether Clause 103 should stand part. Clause 103 would make it possible for judges to impose a whole life order on offenders aged 18 to 20. We have touched on this in previous groups. We think a whole life term should be imposed only on somebody who is 21 or over—somebody unequivocally an adult—for all the reasons that have been debated before. We have very considerable doubts about that clause. I was going to say that I would wait for the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby to talk about it, but I will be waiting for a very long time, so I have made clear my position in relation to it.

Photo of Viscount Hailsham Viscount Hailsham Conservative 5:30 pm, 10th November 2021

My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.

The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.

Photo of Viscount Hailsham Viscount Hailsham Conservative

We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, we have heard which amendments are in this slightly disparate group. On Amendment 195, I am in agreement with the noble Viscount, Lord Hailsham, and in disagreement with the noble and learned Lord, Lord Falconer, I am afraid, because it would require the courts to pass a minimum sentence of seven years for rape in the absence of exceptional circumstances. I fully accept that this amendment is motivated by a determination to respond strongly to the completely horrible offence of rape, and by a desire to be seen to be determined to tackle and reduce it by bringing offenders to justice and dealing with them with the full force of the criminal justice system through long sentences of imprisonment. Nevertheless, I cannot support the amendment.

On these Benches, we will take lessons from no one on how serious a crime rape is. Members on these Benches have spoken repeatedly of the need to increase the rates of reporting rape, the approach to investigating rape, ways of increasing rates of prosecutions and the rate of successful prosecutions for rape, and ensuring that courts, juries and the public—young and old—are fully aware of the meaning of consent. But we do not believe that a minimum seven-year sentence for rape will increase the number of victims prepared to report offences—particularly in cases where the assailant is known or related to them—or reduce the difficulty for the police in investigating rape, securing the co-operation of parties close to the case, securing witness statements or getting witnesses to give evidence in court. Nor do we believe that such a sentence would make it easier to secure convictions from juries, particularly in cases they might regard as borderline, against the background of appallingly low conviction rates.

We have heard many times about the background of failure to bring rapists to justice. In the year to March 2020, nearly 59,000 cases of rape were recorded by police in England and Wales. Of those, there were only 21,000-odd prosecutions and an appallingly low 1,400-odd convictions. We have also heard many times that in 57% of cases investigated by the police in that year, the victims withdrew their support for the prosecution. There is no evidence at all relied upon by the noble and learned Lord, Lord Falconer—or, I suggest, in existence—that minimum sentences of seven years, or of any figure, would improve that position.

Every lawyer, investigator or judge who has ever had anything to do with criminal courts knows the extent to which one case of rape differs from another. The noble Viscount, Lord Hailsham, is right about that. Although every case represents an egregious abuse, a standard minimum sentence cannot be justified. That brings me back to the points I made in the previous group about the importance of judicial discretion and the inappropriateness of a test requiring a judge to find exceptional circumstances before being permitted to pass less than the minimum sentence.

There is a minor point as well about the drafting of the amendment: it is unclear as to the age of the offender. Proposed new subsection (1)(a) applies the clause to offenders “aged 18 or over” at the date of the offence, while proposed new subsection (3)(a) applies to an offender under 18 at the date of conviction. There is an internal inconsistency which the noble and learned Lord may wish to consider.

Rape is a scourge. We must address it, reduce it and bring offenders to justice, as well as change the culture in our society that tolerates it and, as the noble and learned Lord said, does not control the appalling epidemic of violence against women and girls. But minimum sentences will do none of that.

Amendment 196 seeks to increase the sentence for naming a complainant. The noble and learned Lord is absolutely right that this offence can do great harm by removing anonymity; it can cause considerable distress and often psychological damage as well. Increasing it to a two-year maximum on indictment or 12 months on summary conviction is a sensible change to the law, which we support.

Amendment 197 would add

“the abduction, sexual assault, and murder of a person” to the offences in Schedule 21 to the Sentencing Code for which a whole-life sentence is a starting point. I take it to mean that the whole-life sentence would be a starting point if all three elements were present: the abduction, the sexual assault and the murder.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

The only reason I make that point is that there was a misunderstanding—not inherent in the noble Viscount’s speech, but that might have arisen from his speech—where he talked of sexual assault as being a very varied offence; of course it is, but here it is combined with abduction and murder.

I think the starting point argument made by the noble and learned Lord is valid because the starting point applies on the statute if the court considers that the seriousness of the offence, or a combination of the offence and one or more offences associated with it, is exceptionally high. It is only a starting point: it does not mean that judicial discretion is removed or even significantly fettered if particular circumstances applied to make that an inappropriate or unjust sentence. I see no reason why that should not be added to the list, which we already have, of heinous offences for which a whole-life order is a starting point. But I fully agree with the noble and learned Lord that we need to keep whole-life orders to a very restricted class of cases because they are sentences without hope.

Finally, the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby—whose position was eloquently expressed by the right reverend Prelate the Bishop of Durham in the earlier group—oppose Clause 103 because new Section 321(3B) of the code would permit whole-life orders for those aged 18 to 20. We agree, for all the reasons they gave, and the reason that the noble and learned Lord, Lord Falconer, gave, that that is inappropriate. Whole-life orders should not be imposed in such cases.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice 5:45 pm, 10th November 2021

My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.

As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.

We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.

Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.

Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.

However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.

Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.

We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.

Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment 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. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.

We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.

As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103 makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.

We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.

Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.

However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.

Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.

Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.

For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

I am obliged to everybody who took part in the debate. There was widespread support around the Committee for the increase in the penalties for the naming of an anonymous complainant. I thought the speech from the noble Lord, Lord Wolfson, was cruel, because it appeared to support it and then talked about the Law Commission. That is years away, so I think we will come back to this on Report. If the Minister would be willing to help me, we could expand the range if he thinks that is appropriate.

In relation to the question of a minimum sentence for rape, as far as the Government are concerned, there is already a minimum sentence of seven years for third Class A drug trafficking offences, a minimum of three years for third domestic burglary and a minimum sentence for offences of threatening with weapons or bladed articles. I am broadly in agreement with the proposition that minimum sentences should be exceptional, but if they are to apply to any case, rape must be the appropriate case.

The third point is that I find it quite out of kilter with what reasonable people would think that, if you abduct somebody, sexually assault them and then murder them, as Wayne Couzens did, the starting point for the court should not be a mandatory whole-life term. Obviously, I will beg leave to withdraw my amendment today, but we will come back to some of these issues later.

Amendment 195 withdrawn.

Amendment 196 not moved.