Police, Crime, Sentencing and Courts Bill – in a Public Bill Committee at 2:00 pm on 10th June 2021.
With this it will be convenient to consider schedule 11.
Clause 100 amends the criteria applied for when a court may depart from imposing a minimum sentence. Minimum sentences are rare in this jurisdiction, and generally speaking, but not always, they apply to repeat offences. These minimum sentences are not, technically or legally speaking, mandatory or completely binding on the court, but it is mandatory that the court must consider passing that minimum sentence. The court may depart from imposing that minimum sentence only by having regard to the particular circumstances of the offender and the nature of the case, so an element of judicial discretion is retained.
However, given that Parliament has legislated to set out these minimum sentences, we think it right that the court should depart from the minimum sentences specified by Parliament not by having regard to the particular circumstances of the case but only in exceptional circumstances. In effect, the clause raises the bar for when a judge can depart from these minimum sentences; it tells the judge that circumstances must be exceptional before the minimum sentence is disregarded, to make sure that Parliament’s will in this area is better reflected by the sentences the court hands down.
Clause 100 will cover four offences: threatening a person with a weapon or bladed article, which carries a minimum sentence of four years; a third offence in relation to trafficking a class A drug, which carries a minimum sentence of seven years; a third domestic burglary offence, which carries a minimum sentence of three years; and a repeat offence—a second or higher offence—involving a weapon or bladed article. The clause strengthens the minimum sentences in those cases and makes it harder for the judge to depart from the minimum, or reduces the range of circumstances in which such a departure might occur. Three of the four offences are repeat offences; the fourth is a first-time offence. They are fairly clearly defined offences for drug trafficking or domestic burglary, where Parliament clearly decided in the past that there was less necessity for judicial discretion.
Schedule 11 makes consequential amendments to existing legislation as a result of clause 11, to give effect to what we have just discussed. The amendments are to section 37 of the Mental Health Act 1983 and to the Armed Forces Act 2006.
These offences are serious. In the past, Parliament has taken a view that a minimum sentence is appropriate, particularly for repeat offences. It is therefore appropriate that we today make sure that the courts follow Parliament’s view as often as possible.
I asked for figures on how often judges depart from the minimum sentences. For the burglary offence, the data is a couple of years old, but it looks like the court departed from the minimum sentence in that year in about 37% of cases, so in quite a wide range of cases. It is on that basis—to tighten up the strength of minimum sentences—that we are introducing clause 100 and schedule 11 today.
As the Minister said, clause 100 would change the law so that for certain offences a court is required to impose a custodial sentence of at least the statutory minimum term unless there are “exceptional” reasons not to. This is a change from allowing the court to impose a custodial sentence of at least the minimum unless there are “particular” reasons not to.
The offences and their statutory minimums are: a third-strike importation of class A drugs, with a seven-year minimum sentence; a third-strike domestic burglary, with a three-year minimum sentence; a second-strike possession of a knife or offensive weapon, with a six-month minimum; and threatening a person with a blade or offensive weapon in public, with a six-month minimum.
As the Minister has pointed out, the effect of clause 100 is relatively simple, although the Opposition are concerned that it will also be profound. The law currently allows for minimum custodial sentences to be handed down to those who repeatedly offend. As things stand, judges can depart from the minimum sentences when they are of the opinion that there are particular circumstances that would make it unjust not to do so.
Despite what the Minister says about judicial discretion, the proposition put forward by the Government seems to be that the Government are concerned that the judiciary has been too lenient when imposing minimum sentences, and therefore the law needs to be strengthened in this area. The Government’s solution is to change the law so that for certain repeat offences, a court is required to impose a minimum term unless there are exceptional circumstances not to. In a nutshell, clause 100 seeks to make it harder for judges to exercise their discretion and moves away from the statutory minimum sentence for a small number of offences.
The offences that clause 100 applies to are the trafficking of class A drugs, domestic burglary, possession of a knife or offensive weapon, and threatening a person with a blade or an offensive weapon in public. The Opposition have two main concerns with clause 100. The first is why the change is being made now and what evidence exists that it is actually necessary. When the Sentencing Council considered the Government’s intention to make changes to mandatory minimum sentences for these offences, it was clear in its response:
“We would however counsel strongly against any substantive changes to these mandatory sentences. At present, the regime is quite clear, and courts have been applying the criteria without difficulty…Parliament should not try and pre-empt this exercise of judicial discretion. At the very least, the Government should undertake or commission research into the ways that courts have exercised their discretion in this regard. Until, and unless, the Government can demonstrate that judges have been excessively indulgent, or that the provisions are misfiring in some way, amendments are unnecessary and inappropriate. To date, the Government has offered no such demonstration.”
The Sentencing Council is not the only body concerned about the reasoning behind this move. The Bar Council also advised against it, arguing that clause 100
“will prevent judges from being able to exercise the necessary discretion to hand down a sentence based on the circumstances of the case.”
It said that the clause will also
“increase the prison population, which is already under significant strain.”
My hon. Friend is making an excellent point. Judges know the case and the circumstances of it, so they are better placed to use their discretion, taking into account the particular set of circumstances, which we cannot know about when we are passing something that gives carte blanche on a particular sentence minimum.
Yes, that is very much the case. These organisations all make the same point: we are limiting the judges’ discretion. We are limiting the discretion of the individual who best knows the case, as they have actually heard the case, so it is certainly worrying. In fact, in the sentencing White Paper, the Government note that “concerns have been raised”, and that some repeat offenders are receiving too-lenient sentences, but they fall short of naming a single body that supports that view.
In the same vein, rather than presenting the evidence for change, the White Paper highlights only a single statistic in relation to those convicted of a burglary who receive a sentence lower than the minimum three-year term. I am sure I do not have to remind the Minister that that is as single statistic relating to a single offence out of his list of four. I ask him a very simple question: what evidence has he brought to the Committee today to show that judges have been unduly lenient when sentencing repeat offenders in relation to the importation of class A drugs, possession of a knife or offensive weapon or threatening a person with a blade or offensive weapon in public?
The second of the Opposition’s concerns is how the proposed changes to clause 100 will further entrench the already shameful levels of racial disparity in our criminal justice system. As the Minister is all too aware, since the Lammy review was published in September 2017, racial disparity in the criminal justice system has got considerably worse. The statistics speak for themselves. Black offenders are 26% more likely than white offenders to be remanded in custody, while the figure for black women is 29% more likely. Offenders from black, Asian and minority ethnic backgrounds are 81% more likely than white offenders to be sent to prison for indictable offences, even when factoring in higher not guilty plea rates. Over one quarter—27%—of people in prison are from a minority ethnic group, despite the fact that they make up 14% of the total population of England and Wales. If our prison population reflected the ethnic make-up of England and Wales, we would have over 9,000 fewer people in prison—a truly staggering figure.
That is before we even begin to touch on disproportionality in the youth system, which is even more pronounced. For the first time, young people from a BAME background now make up 51%—over half—of those in custody, despite that group making up only 14% of the population. The proportion of black children who are arrested, cautioned or sentenced is now twice what it was 10 years ago, and the proportion of black children on remand in youth custody has increased to over a third.
When my right hon. Friend Mr Lammy was asked by the then Conservative Government to carry out his review, he did so in the belief that that Government, and successive Governments, would implement the recommendations he made. Sadly, that was not the case. At the last count, fewer than 10 of the 35 recommendations had been fully implemented. Perhaps the Minister will explain whether that is still the case today and, if so, why the Government have made so little progress on that in the last four years.
The picture emerging from this Government is that they do not care about reducing racial disparities in our criminal justice system, which is not an accusation I make lightly. Statement after statement recognising the disparities and promising change appears to be no more than lip service. Worse still, many of the measures in the Bill will further entrench racial inequality in the criminal justice system—one of them being the introduction of clause 100. It is abundantly clear that the clause will have a disproportionate impact on offenders from a black, Asian or minority ethnic background.
We know from a Government report published in 2016 that for drugs offences the odds of receiving a prison sentence were around 240% higher for black, Asian and minority ethnic offenders than for white offenders. Even the equalities impact assessment that accompanies the Bill acknowledges an over-representation of certain ethnic groups and the increased likelihood of their being sentenced to custody and given a longer sentence. It states:
“We recognise that some individuals with protected characteristics are likely to be over-represented in the groups of people this policy will affect, by virtue of the demographics of the existing offender population.”
The figures the hon. Gentleman quotes are of great concern. Is he suggesting that judges show bias and discrimination in the sentences they give?
I am not. The point I am making is that the Government are driving an agenda that will result in more black, Asian and ethnic minority people ending up in the criminal justice system and suffering even greater sentences.
The Government’s own equalities impact assessment goes on:
“BAME individuals appear to have high representation in the Class A drug trafficking cohort and possession of or threatening with a blade… As a result, the proposal may put people with these protected characteristics at a particular disadvantage when compared to persons who do not share these characteristics since they may be more likely to be given a custodial sentence and serve longer sentences than before.”
The Minister could do no better than looking to America to see how three-strike drug laws have had a horrific impact on disproportionality rates in the criminal justice system. As he will no doubt be aware, the three-strikes crime Bill that was introduced by Bill Clinton in the 1990s has been roundly criticised by all sides of the American political spectrum. Democrats, Republicans and even Bill Clinton himself have spoken of how the Bill was a grave mistake that contributed to overpopulated prisons and a mass incarceration of BAME offenders in particular.
What makes this all the more astonishing is that this Government have gone to some lengths in recent times to state their commitment to reducing racial disparity in the justice system. In his foreword to the latest update on tackling race disparity in the criminal justice system, the Lord Chancellor made it clear that addressing the over-representation of people from ethnic and racial minorities was a personal focus for him—that was very welcome. Will the Minister explain, then, why the Government chose not to undertake a full equalities impact assessment of how measures in the Bill could have a detrimental impact on minority groups? Given that many of the measures in the sentencing White Paper involve serious sentence uplifts, it is absolutely critical that the Government fully understand how those from minority backgrounds could be disproportionately impacted. As I have explained, failing to do so runs the risk of further exacerbating the already horrendous disparities that we see in the system today. Is the Minister content to see such disparities widen even further, or will he outline today just what the Government will do to address this issue?
Does my hon. Friend agree that being against this kind of disparity is all well and good, but the only way one can reduce it, which I believe is the Government’s policy, is to be very careful—moving policy initiative by policy initiative, and change in the law by change in the law —that new measures take into account the impact of such changes on that disparity?
I most certainly do agree with my hon. Friend. That is why we posed the question: why has there not been a full impact assessment of the impact of these measures on the BAME community? I would go so far as to challenge the Minister and his Government not just to outline the measures they will take to end these disparities but to set themselves some targets to end this injustice once and for all.
The final point I will touch on is how the Government came to a decision on which of the four offences they have included under the scope of clause 100. I remind the Committee that they are trafficking of class A drugs, domestic burglary, possession of a knife or offensive weapon, and threatening a person with a blade or offensive weapon in public. Although those are undoubtedly serious crimes, we have some concerns that focusing on such a small cohort of crimes risks missing the larger criminal forces that are at work in our country.
Take possession of a knife or offensive weapon, for example. All too often when we think of knife crime, the focus of our thoughts is on young men—often young BAME men from a disadvantaged background—carrying knives as part of a gang. Yet this image is deeply simplistic and misses the greater criminal forces at play. As my right hon. Friend the Member for Tottenham pointed out, most of the time knife crime is not being driven by youths but by a sophisticated network of veteran organised criminals. As he wrote in The Guardian so eloquently:
“Young people falling into the wrong crowd in Tottenham, Salford or Croydon know nothing about the trafficking of tonnes of cocaine across our borders every single year. They know nothing of the shipment routes from Central and South America that have made London a cocaine capital of Europe. They know nothing of the lorries, container vessels, luxury yachts and private jets that supply our nation’s £11bn-a-year drug market….This isn’t about kids in tracksuits carrying knives, it’s about men in suits carrying briefcases. It is serious criminal networks that are exploiting our young people, arming them to the teeth and sending them out to fight turf wars.”
The hon. Gentleman makes some very valid points. Does he agree that this issue is also about middle-class people taking illegal drugs and fuelling this terrible trade?
I certainly agree with the right hon. Member for Scarborough and Whitby, and I have given his constituency its full title—how on earth could I ever forget Whitby, when it is one of my favourite destinations for a day out? I am sure he will understand why that is the case. For me, this issue is about how we tackle the guys with the briefcases and not just the young men on the streets? How do we make sure that we deal with organised crime? We have seen some great results recently in my own constituency and across the Cleveland police area, where there have been raids on individual houses and the police found large amounts of drugs. However, those drugs are finding their way in through Teesport and through the Tyneside ports as well. We are failing to get to the people who are driving the entire trade and we need to do much, much more to do so.
With the National Crime Agency currently prioritising cyber-crime, child sexual exploitation and terrorism, and the Serious Violence Taskforce having been disbanded recently, I would be grateful if the Minister could explain how anything in clause 100 will tackle serious organised criminality.
To conclude, the Opposition have deep concerns about the introduction of the power in clause 100. We worry that it has been introduced without an evidential basis, without consultation with impacted groups, and without a full equalities impact assessment. Even more importantly, we worry that it will further entrench the already shameful levels of racial disparity in our criminal justice system while failing to tackle the underlying causes of the crimes that we have been discussing. I look forward to hearing the Minister’s response, which I hope will address the issues that I have raised.
Let me respond to some of the questions and points that the shadow Minister raised in his speech. First, I should be clear that in forming the proposals the Government have considered carefully, in accordance with the public sector equality duty under the Equality Act 2010, the impact that these changes in the law might have on people with protected characteristics, including race. The full equality impact assessment was published alongside the draft legislation, and I can confirm that it is publicly available should anybody want to scrutinise it.
The shadow Minister asked why these measures are being introduced, and he asked for the evidence base for doing so. He mentioned evidence that appeared in the original White Paper published last September. I gave a statistic in my speech introducing the clause about the proportion of cases where the minimum is disapplied for the burglary offence. I said it was over a third. I should add that those are unpublished figures. They have not gone through the usual verification process, but it is clearly over a third. That is a single further bit of evidence demonstrating that judges are departing quite a lot.
It is important to specify that departures should be exceptional rather than simply particular, because Parliament has taken the time and trouble to specify these minimum sentences. It has done so after careful and due consideration. It is very unusual, as we might debate later, to have minimum sentences, even for repeat offenders. Having given the matter such careful consideration in the past, it seems reasonable to expect judges to implement that, unless there are exceptional circumstances. We are simply talking about somewhat elevating the test before judges depart.
There is still residual judicial discretion; if a judge thinks there is an exceptional circumstance that means that the minimum is not appropriate, the judge can still not give the minimum—their hands are not completely tied. This is just about making it clear to those handing down sentences that this should be exceptional rather than more routine. There is data that shows that the departures are quite widespread. I have mentioned some, and the shadow Minister referred to the White Paper. But beyond the data there is also the point of principle I mentioned a moment ago about making sure that Parliament’s intent is reflected in the sentences that are, in practice, handed down.
On racial disparity, these measures will in some sense mitigate against any implied systemic bias, which I do not, by the way, accept exists in the sentencing context. They actually make the application of the sentence more mechanistic; they just specify, almost as a formula, that if a particular set of circumstances is met, a certain sentence follows. That makes the system almost automatic and reduces the discretionary element. If someone does not want to have the minimums applied to them, they should not commit the offence in the first place.
But there clearly are issues that the Government want to address. This is a broader topic, and I do not want to dwell on it, because it is probably out of scope. There are obviously wider issues of racial disparity in the criminal justice system, which the shadow Minister referred to. A very good and comprehensive statement was made on this topic by the Under-Secretary of State for Justice, my hon. Friend Alex Chalk, a few months ago. I strongly commend his statement, because he went through the recommendations resulting from the Lammy review—I am probably allowed to say that, given that it is the name of the report, and I am not referring to a colleague by their name—demonstrating in each of the various cases what concrete action was being taken to address the concerns that the review uncovered. As the shadow Minister said, the Government do want to take action to make sure the justice system is always fair and is seen to be fair.
Does the Minister accept that despite the Government’s intentions, good as they may be, to reduce disparity, the reality is that it is not reducing and has not reduced since the report was published? Does he therefore accept that the Government need to do more?
I have not seen the up-to-date data for the past year, but I accept that we need to pay continuous attention to these issues. We need to make sure that the justice system always behaves in a fair and even-handed manner. Clearly, we accept that we need to be eternally vigilant on that front.
To return to the topic of this clause, it is simply about making sure that the decisions taken by previous Parliaments are reflected in the way in which judges take their decisions. We also need to ensure that departing from what Parliament has specified happens only in exceptional cases. Believing as I do in parliamentary sovereignty, that seems reasonable to me.