Lord Keen of Elie:

Moved by Lord Keen of Elie

25: Clause 1, page 3, line 10, at end insert—“(i) the offender has been convicted of a sexual offence, within the meaning of section 3 of the Sexual Offences Act 2003, or (j) the offender has been convicted of an offence which constitutes domestic abuse within the meaning of section 1 of the Domestic Abuse Act 2021.”

My Lords, this Amendment concerns an exemption to the presumption of suspended sentences for those convicted of sexual offences and domestic abuse. We listened carefully to the points raised by noble Lords in Committee. It was suggested then that our amendments were overly expansive, risked undermining the central objective of the Bill—to free up spaces in prison—and that we might constrain judicial discretion.

We have listened to, and taken into account, those concerns. The amendment before your Lordships today is far more tightly drawn. It does not seek to carve out a long list of offences, even though that might be our preferred position; nor does it attempt to undermine Clause 1’s central objective. Instead, it is narrowly focused on two categories of offending, where the case for custody, even for shorter sentences, is at its strongest: sexual offending and domestic abuse.

This amendment would preserve the presumption in favour of suspended sentences in the vast Majority of cases, with exemptions only for sexual offences and domestic abuse. That seems proportionate and indeed, I would venture, necessary. Much of the debate in Committee rested on the assertion that short custodial sentences are ineffective or even counterproductive when judged solely by reoffending rates. Even if one accepts that the data paints a mixed picture, it is a mistake to treat sentencing policy as though it serves only one function. Prison is not simply about reoffending statistics; it serves other essential purposes: deterrence, public protection, the expression of society’s condemnation of serious wrongdoing, the maintenance of public confidence in the justice system and, crucially in cases such as these, the protection and reassurance of victims.

For victims of sexual assault or domestic abuse, the distinction between a custodial sentence and a suspended one is not an abstract policy question. It is the difference between knowing that their abuser has been removed from the community and knowing that they remain at liberty. This point is reinforced by the Government’s recent recognition of the scale of the problem. Violence against women and girls has been described as a national emergency, and a strategy announced to halve such violence within a decade, including the creation of specialist rape and sexual offence investigation teams in every police force by 2029. These measures, this Government note, will provide officers with the right training to understand the mindset of both abusers and victims, and ensure consistent investigation of sexual offences across the country.

Much has been made of the evidence on reoffending, but even the Government’s own publications urge caution on these. Official statistics emphasise that comparisons between custodial and non-custodial sentences do not control for differences in offender characteristics. Those receiving short custodial sentences, as I noted earlier, typically have far longer and more serious criminal histories than those given community or suspended sentences. The reality is not a simple dichotomy between bad short custodial sentences and good suspended sentences. Outcomes depend heavily on the risk posed by the offender and the need for immediate public protection. In cases of sexual offences and domestic abuse, those considerations weigh heavily in favour of custody. Nor should we overlook the deterrent effect of custody. While difficult to measure with precision, deterrence remains a central principle of sentencing. Removing custody from the toolkit for these offences was sending the wrong signal to offenders, and indeed to victims and the general public.

In Committee, it was also argued that carving out exceptions undermines judicial discretion. With respect, that argument sits uneasily with the structure of this Bill. The Bill already imposes a statutory presumption in favour of suspended sentences. This amendment simply ensures that, in the most serious and sensitive cases, Parliament does not compel courts to start from what I suggest is the wrong place. We believe this amendment is modest and targeted. It reflects a simple proposition that, for sexual offenders and domestic abusers, short custodial sentences continue to have a vital role to play. If the Minister cannot provide the appropriate assurances for this limited exception, then I will seek leave to divide the House.

My Lords, I support the Amendment in the name of my noble and learned friend Lord Keen, and I wish to echo two points. The first is that it is so important to victims of sexual violence and domestic abuse that they do not fear that their abuser, the perpetrator of those crimes, is somehow automatically going to be back in their community. The reassurance that they would get from knowing that the custodial sentence is available is important to those victims.

The second point is, as my noble and learned friend has raised, the issue of the Government’s mission to halve violence against women and girls and the strategy for violence against women and girls that is being brought forward. May I gently suggest to the Minister that, if the Government are serious about that, then they should accept this amendment? If they do not accept it, then that suggests that they are not as serious about their intentions on violence against women and girls as they are claiming.

My Lords, I too will be brief because I have agreed with everything that has been said so far. It is important to acknowledge that a strategy and policy on violence against women and girls can only mean something if in practice it results in taking that issue seriously. I would expect everybody across the House to agree that this exception is proportionate and correct, but if this Amendment is not accepted, then I am afraid it makes me query whether a policy on violence against women and girls is anything other than a piece of paper that does not mean very much and certainly it will be viewed by women and girls with some scepticism.

I also want to draw attention to the fact that sexual offences and domestic abuse are escalating issues. Somebody might do something considered to be quite minor as a sexual offence which therefore may not require the full weight of a custodial sentence, but we know that these particular offences get worse. Ask anybody who has been a victim of them and you will find out that the perpetrators, once found guilty, have built up to what they have done. So we have to have custody as a mechanism for dealing with even the less serious examples of sexual offences and domestic abuse.

I also remind the House that David Lammy, the Secretary of State for Justice, has talked about the importance of taking the issue of pursuing alleged perpetrators of rape and sexual assault so seriously that he is even prepared to sacrifice jury trials. I completely disagree, by the way, with the use of the issue of sexual assault to undermine jury trials—there are empty courts as we speak where people could be being tried, and I do not think this would resolve it—but it does indicate that the Government are prepared to say that they will make exceptions when it comes to such cases where women and girls are victims of heinous crimes. Therefore, I appeal to the Minister to accept this amendment as being perfectly sensible. It will get cheers from around the country, because it is right that we take this particular form of crime very seriously and act on it rather than just using the words and the rhetoric.

My Lords, we on these Benches do not agree with this Amendment. That is not because we do not take the issue of sexual offences extremely seriously—we do, just as we do the issues of domestic abuse and domestic violence. That is why we sought to make domestic abuse an aggravated factor in sentencing, and why we have argued for the fact of domestic abuse in an offence to be recorded even in the case of offences that, of themselves, do not imply domestic abuse, such as common assault or assault occasioning actual bodily harm. We fully share and applaud the Government’s determination to halve the number of incidents of violence against women and girls over a decade, and we will do everything we can to help the Government achieve it.

However, more prison is not the answer. It is not the purpose of the Government to outlaw sentences of immediate imprisonment. That is an important point, and I say it in answer to the noble Baronesses, Lady May and Lady Fox of Buckley. This provision applies only to sentences of 12 months or less. Immediate custodial sentences remain available for offences deserving more time in prison.

After considerable reflection, and discussion with the Government and our colleagues in the Commons, we believe that, if a court is of the view that a sentence of imprisonment of less than a year should be passed, it should be suspended. Of course, sexual offences include some of the most serious offences there are, and they will remain to be dealt with appropriately, but they also include less serious offences for which immediate custody is not the answer.

I will make a couple of general points on the presumption in favour of the suspension of sentences of less than 12 months. The Bill has two very important objectives. The first is to address the prison capacity crisis, and the second is to introduce the presumption. I have said many times in this House that we imprison far more people in this country, and for far longer, than any comparable country. That fact has resulted in no appreciable decline in crime.

The prison capacity crisis is the last Government’s fault above all others. They failed to provide sufficient prison places and legislated consistently for more and longer time served in prison. This was led not by evidence that it would lead to a reduction in crime, but by a populist demand from the press and their supporters to be so-called “tougher on crime”. When the capacity crisis hit them, they introduced cack-handed, emergency early-release provisions to attempt a short-term, stopgap solution that was far less well thought out and researched than the measures proposed in the Bill. Those measures owe much to the work of David Gauke, a former Conservative Lord Chancellor and Secretary of State, who brought to the Independent Sentencing Review an independence of mind and evidence-led approach that does him and his team credit, and for which we are very grateful.

We on these Benches have long argued for a presumption against short sentences of immediate imprisonment. I say in response to noble and learned Lord, Lord Keen, that we have always argued that 12 months should be the cut-off point. We know that that is appropriate, because all the evidence is that short sentences of imprisonment do not work; they do not lead to rehabilitation, and they are much less effective than community sentences in reforming offenders. These are the outcomes that the Bill proposes. The amendments that were originally to have been moved in group 1 would have worsened the prison capacity crisis and led to a breakdown of our penal system.

The arguments are against short sentences. The Government have recognised our concerns about the seriousness of the prison capacity crisis. They have also recognised the seriousness of the problem of staffing and resources in respect of the Probation Service, which will have to handle extra work and more cases as a result of the move from imprisonment to probation—the inevitable result of the proposals in the Bill.

We agree with the earned release concept that the Bill incorporates. The Government have moved towards our position on rewarding good behaviour in prison, introducing what I call carrot as well as stick. These are important reforms, and, for these principled reasons, we will be opposing this amendment.

While the Government understand the concern that underpins this Amendment, we do not believe it is necessary. It was not included by the last Conservative Government when they originally introduced this measure. Let me be clear: we are not abolishing short sentences. Public protection is our main priority, and we will make sure that the most dangerous offenders are put where they belong: behind bars.

In response to the noble Baronesses, Lady May and Lady Fox, I recognise that prison sentences, even if short, can be critical to safeguarding victims of domestic abuse or VAWG. Courts will still have discretion to impose immediate custody in any case involving significant risk of physical or psychological harm to an individual—for example, to protect an at-risk domestic abuse victim. Courts will also have discretion to impose immediate custody in exceptional circumstances and where offenders breach court orders.

Through Committee stage amendments in the other place, we strengthened the wording in the Bill even further, so that there can be no doubt. Where offenders breach court orders, including VAWG-related protective orders, they can receive an immediate custodial sentence. For example, if someone breaches a domestic violence protection order—a civil breach rather than a criminal offence—and assaults their partner, the presumption would not apply and they could go straight to prison.

With thanks to the Liberal Democrats, and, importantly, the Member for Eastbourne in the other place, we are also introducing a new judicial finding of domestic abuse at sentencing, so these offenders are better identified and monitored throughout the system. This has been welcomed by the Domestic Abuse Commissioner, and, in this place, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks.

The noble and learned Lord clearly cares deeply about the experience of victims. But if this amendment were to pass, it would undermine the fundamental problem that this legislation will fix—the issue the previous Government neglected for 14 years. I urge the noble Lord and noble and learned Lord to withdraw this amendment, and to support the Government’s position.

My Lords, the argument of the noble Lord, Lord Marks, about fault for the issue of prison capacity, staffing and resources will bring little comfort to the victims of sexual offences and domestic abuse. His reference to offences that attract a sentence of 12 months or less omits the point that, of course, Clause 1 in its present form would apply to offences attracting a sentence of 18 months or less, albeit there is then a discount for a guilty plea because of a procedural provision.

I am obliged to my noble friend Lady May and to the noble Baroness, Lady Fox, for their contributions. The fact is that sexual offending and domestic abuse are uniquely serious and harmful—that has been recognised by the present Government. They are characterised by repetition, coercion and control, and they have a profound victim impact. In such cases, custody serves functions that a suspended sentence cannot: protection of victims, reassurance, deterrence and public confidence. For sexual offences and domestic abuse, immediate public protection should take precedence over other considerations, including questions of prison capacity. That includes abstract arguments on rehabilitation and what is non-conclusive data regarding reoffending rates as between suspended sentences and prison sentences.

This Government have pledged in their manifesto to halve violence against women and girls. They are hardly proposing to go in that direction with the present form of Clause 1. It is not enough that there should be exceptional circumstances; the very essence of a sexual offence and of domestic abuse is an exceptional circumstance. The public recognise that, and this Government should recognise that. I seek leave to divide the House.

Ayes 180, Noes 219.

Amendment 25 disagreed.

Amendments 26 to 51 not moved.