Baroness Noakes:

Moved by Baroness Noakes

78DA: After Clause 102, insert the following new Clause—“Maximum sentence for an offence under section 70 of the Sexual Offences Act 2003 In section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), in subsection (2)(b) (penalty on conviction on indictment), for “2” substitute “10”.”

My Lords, this is a probing Amendment. It increases the maximum sentence for the offence of sexual penetration of a corpse in Section 70 of the Sexual Offences Act 2003 from two years to 10 years.

I am tabling this amendment in the light of the appalling case of David Fuller. He was convicted month of the murders of two young women more than 30 years ago. When the police finally caught up with him, thanks to advances in DNA techniques, they discovered in his home evidence of some appalling sexual crimes, including 4 million images of sexual abuse. The most terrible of these images had been created by David Fuller himself. He had recorded himself sexually abusing the dead bodies of women and girls in the mortuary of the Tunbridge Wells NHS hospital—both the old one in Tunbridge Wells and its replacement in Pembury. This is where I live, so it is an issue that is close to my heart. It is also close to the heart of my Right Honourable Friend Greg Clark, the MP for Tunbridge Wells.

Fuller had raped the dead bodies of more than 100 women and girls over a period of 12 years up to 2020. The youngest was nine; the oldest 100. Sometimes he repeated the offence on the same body. He kept records of his acts. There are no words to describe the depths of this kind of depravity.

Last month, Fuller pleaded guilty to the two murder charges, to 33 counts of the sexual penetration of a corpse involving 59 individual victims and to some other important charges. Unsurprisingly, this afternoon he was given a whole life sentence.

This case has shone a spotlight on the maximum sentence of only two years which is available for the offence of sexual penetration of a corpse. The judge today emphasised that there is no sentencing guideline for this offence. She in fact gave Fuller a 12-year concurrent term for the totality of his other crimes.

However, let us suppose that the evidence for the murders had not been strong enough for a conviction and that the only viable charges against him were for sexual penetration of a corpse, or perhaps that the evidence stood up for only one act of penetration of a corpse. He might then have been given only a two-year sentence, and could even perhaps have walked free this afternoon, taking account of his time in remand. I do not believe that this makes any kind of sense.

Although the immediate victims were not alive, this is not a victimless crime. The families of those victims are victims too. They feel a great sense of pain and outrage that their mothers, daughters and sisters have been desecrated. That has compounded their grief, as today’s statements in court made clear. The two-year maximum stands in stark contrast to the main rape and penetration offences in the 2003 Act, which carry life terms.

The sexual penetration of a corpse offence was created for the first time in the 2003 Act. I was the lead Opposition spokesman when your Lordships’ House considered the then Sexual Offences Bill, and I am delighted that the noble and learned Lord, Lord Falconer of Thoroton, is in his place, because he led for the Government when that Bill went through your Lordships’ House. He may recall why the offence was settled at two years. In any event, I do not think that at the time any of us could have had a case as awful as that of David Fuller in our minds, because the facts of that case are simply unimaginable—at least, they were.

My amendment selects 10 years rather than two in order to make the point that sexual penetration of a corpse is a much more serious offence than a two-year term implies. I claim no expertise in criminal law or sentencing, and wiser heads than mine will know how best to calibrate this offence. The purpose of tabling my amendment is to hear from the Government what they intend to do about the offence, and when they will do it. I am aware that my Right Honourable friend the Secretary of State for Health and Social Care informed the other place that the Government would review the offence, but he did not put a timetable on it. It is a fairly simple issue, and I hope my noble friend the Minister can be clear with the House about what the Government will do. I beg to move.

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

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

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

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

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

but agreed that

“human remains should be shown respect” and noted that

“relatives and friends would be deeply distressed”.

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment 78DA withdrawn.

Clause 103: Whole life order as starting point for premeditated child murder

Amendment 78E not moved.