Clause 100 - Minimum sentences for particular offences

Part of Police, Crime, Sentencing and Courts Bill – in a Public Bill Committee at 2:00 pm on 10th June 2021.

Alert me about debates like this

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice) 2:00 pm, 10th June 2021

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.”