Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2025
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Lord Timpson
That the Grand Committee do consider the Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2025.
Relevant document: 31st Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, in December last year, my noble friend Lord Ponsonby made a Written Statement to the House announcing the Government’s plan to implement two outstanding recommendations made in the independent domestic homicide sentencing review, which was undertaken by Clare Wade KC.
In opposition, we welcomed this review and its approach of updating the sentencing framework for murder to reflect the seriousness of domestic homicides while also balancing the need to ensure that any reforms do not unduly punish abused women who kill their abuser. We did, however, call for more of Clare’s recommendations to be implemented, which is precisely what the draft instrument before us today aims to achieve. The measures in this instrument are central to the Government’s mission to keep our streets safe and halve violence against women and girls, as we anticipate that they will have a significant impact on the custodial terms given to the perpetrators in these cases, rightly recognising the seriousness of domestic murders.
The current sentencing framework for murder, as set out in Schedule 21 to the Sentencing Act 2020, was first introduced over 20 years ago, and multiple piecemeal amendments have been made to it since then. In recent years, particular concerns have been raised regarding gendered disparities for murders committed in a domestic context.
Clare Wade KC was commissioned by the previous Government to review sentencing in domestic homicide cases and establish whether the law and sentencing guidelines were fit for purpose. I take this opportunity to pay tribute to Clare for her thorough and considered work on this review, and to those whose campaigning led to the commissioning of this review. That includes Carole Gould and Julie Devey, founders of the Killed Women network and mothers of two young women, Ellie and Poppy, who were tragically murdered by their former partners in 2019 and 2018 respectively. We commend their courage in continuing to share their stories, and their commitment to campaigning for change.
Although some of Clare Wade’s recommendations were accepted and implemented by the previous Government, a number remain outstanding. This instrument implements two of the outstanding recommendations. First, it introduces a statutory aggravating factor for murders connected with the end of a relationship. In over a third of the murder cases analysed by Clare as part of her review, the murder occurred at the end or perceived end of the relationship, and in the majority of cases that appeared to be the catalyst for the killing. In all these cases the perpetrator was male. A murder involving resentment or jealousy by the perpetrator at the end of a relationship is a significant feature of cases involving controlling or coercive behaviour and is often the final controlling act of an abusive partner.
Secondly, this instrument introduces a statutory aggravating factor for murders involving strangulation. In recent years, strangulation has been recognised as a method of exerting power and control, particularly in the context of domestic abuse, where female victims are assaulted by physically stronger males. Nearly a third of the murder cases analysed involved strangulation, all of which involved a male perpetrator and female victim.
The intention of this instrument is to expressly recognise these factors in statute, to ensure that domestic murders and the particular harms that arise in these cases are given specialist consideration in the framework. Sentencing in individual cases is of course a matter for the independent judiciary, and it will therefore continue to be for the judge to determine the appropriate weight to be given to the aggravating factors in each case
I thank the Secondary Legislation Scrutiny Committee for its consideration of this instrument and its report. As the committee noted, we consulted with the independent Sentencing Council on the draft instrument, in line with our statutory duty to consult the council before amending Schedule 21 by regulations. We are grateful for the council’s feedback on the draft instrument, which we took into careful consideration. A full account of the consultation is included in the draft Explanatory Memorandum published alongside this instrument, including the points raised by the Sentencing Council and the Government’s response.
Alongside this important legislation, the Lord Chancellor has also invited the Law Commission to conduct a review of homicide law and sentencing. The sentencing framework for murder was first introduced over 20 years ago and has never been subject to wholesale review. This contrasts with the Sentencing Council’s sentencing guidelines, which are regularly reviewed and updated, with any changes being subject to thorough consultation.
Although Clare Wade’s review and the legislation before us today go some way towards ensuring that the sentencing framework for murder reflects a modern understanding of domestic abuse, more fundamental reform is also required. The intention of the Law Commission review is a complete reconsideration of the sentencing framework for murder, with a view to making recommendations for a new Schedule 21. The review will also consider the law relating to homicide offences, including full and partial defences to those offences.
We anticipate that the Law Commission review will take several years to complete, and we will then need to consider the recommendations and bring forward any necessary legislation. This is the right course of action for such a complex area of law but it is not a quick one, which is why we are taking more immediate action in the short term by introducing the measures in this instrument.
Lord Phillips of Worth Matravers (CB)
My Lords, it is perhaps ironic that the first statutory instrument we considered was designed to relieve the pressure on the prison population, but these measures are calculated to increase the prison population. They will add to the list of aggravating features that a judge will have to take into account when considering the length of time to serve and, in reality, as the Minister said, they will have a significant impact on custodial terms.
Such amendments should be introduced only where it is plain that they are needed, and I express reservations as to whether that criterion is satisfied in this case. Of course, the amendments were recommended by Clare Wade in her review of domestic homicide sentencing. I pay tribute to her for that review, but it has not left me convinced that these measures are necessary or desirable.
The review puts a spotlight on the fact that the homicide of a woman by a man is often the final chapter of a coercive relationship in which the man has regularly abused the woman. I can see the arguments that, in those circumstances, the previous history aggravates the final act of homicide by the man, but effect has already been given to that factor by the addition last year to the list of aggravating factors in Schedule 21.
These regulations were considered on 14 July this year by the Second Delegated Legislation Committee of the House of Commons. On that occasion, as has been repeated today, the Parliamentary Under-Secretary of State for Justice said that the draft instrument was
“central to the Government’s mission to keep our streets safe and halve violence against women and girls”.—[Official Report, Commons, Delegated Legislation Committee, 14/7/25; col. 1.]
The justification put forward appears to be that this will augment deterrence. The Opposition spokesman then referred to reasons why the previous Government had not taken forward these measures and to reservations expressed by the Sentencing Council, but indicated that the Opposition would not oppose the measures. I believe that the comment on these measures by the Sentencing Council was that they were “unnecessary” and “counterproductive”.
In this House, the Secondary Legislation Scrutiny Committee has made no adverse comment in relation to the measures, so I will briefly express my personal reservations. Schedule 21, which dates back to the Criminal Justice Act 2003, has had the unintended and unfortunate indirect consequence of approximately doubling sentence lengths across the board, contributing significantly to prison overcrowding. Adding to that list of aggravating factors will augment this effect and, as I said, should be contemplated only where there are compelling reasons.
The reason given for making strangulation a factor that augments the seriousness of the offence is stated, on page 21 of the Wade review, as being because
“strangulation includes additional suffering and greater harm”.
When one considers the many different ways in which a man may kill a woman, I question whether there is justification for singling out strangulation as, in itself, so increasing the horrific effect of the murder of the woman as to justify a result that may be several further years of imprisonment.
Lord Marks of Henley-on-Thames (LD)
My Lords, in considering this instrument, I once again express our gratitude to the Minister for the way in which he set out the justification for the instrument and its background, particularly the fact that the Law Commission review will take some time to happen. I thank the noble and learned Lord, Lord Phillips, for the careful consideration that he has given to this and for his expression of concern at the effect that adding these two aggravating factors could have on sentencing.
It has been explained that the instrument adds two statutory aggravating factors to Schedule 21 for judges to consider when imposing a minimum term for murder. The first is when the murder is connected with either the actual or intended end of an intimate relationship, while the second is when the murder involves strangulation, suffocation or asphyxiation. As the Explanatory Memorandum points out, judges will of course be entitled to consider all factors and take all factors into account when sentencing for murder. Those will include anyway the fact that a relationship is coercive or controlling and the degree to which the murder reflects the coercion or control—in this case, generally by a man over a woman.
I know that we all welcome the further Law Commission review that is promised, but it is a fact that these reviews take a considerable amount of time; that is inevitably the result of the care that the Law Commission gives to such considerations.
In one sense, this instrument does very little. I note the noble and learned Lord’s concern that the changes will lead to significantly increased sentences. One can see that a statutory aggravating factor does have that effect—and that is the intended effect. However, how far sentences would be increased is not capable of assessment; neither is there any clear evidence of how far such sentences will be increased because of an aggravating factor.
The facts are that the social background against which this instrument is presented is that coercive control is now recognised far more widely than it used to be; and that the effects of factors such as those mentioned in this instrument are more widely recognised and taken more seriously. So I hope that the noble and learned Lord’s concern that the changes will lead to significantly increased sentences proves unfounded, not in the sense that there should not be a recognition of aggravating factors but in the sense that such aggravating factors are increasingly recognised by judges in any event.
The two factors added by this instrument around coercive relationships were particularly important, as has been said, in influencing the 2023 review of domestic homicide sentencing by Clare Wade KC and in framing her recommendations. In the domestic abuse context, which is the context we are considering, they are particularly significant. They are also significant in the light of the Government’s stated determination, on which they are plainly acting, to halve violence against women and girls, which is a major ambition.
The first change recognises that actual or threatened relationship breakdown can, and often does, play a role in promoting extreme domestic violence. I accept that the extent of deterrence that follows from that is uncertain, but it sends an important signal to the potential perpetrators of domestic violence about the effect of coercive control.
The second change recognises the particular significance of strangulation, suffocation or asphyxiation in domestic violence, particularly by men on women. We recognised that during the passage of what is now the Domestic Abuse Act 2021, when I, along with the Government, signed a cross-party amendment to introduce the new offence of non-fatal strangulation. In the debates on the then Bill, we took account of a great deal of evidence of the high incidence of strangulation in domestic violence cases, as well as of the distressing fact that so many cases where non-fatal strangulation occurs ultimately lead to the perpetrator escalating that violence to, ultimately, fatal violence and murder.
The fact is, therefore, that judges will continue to weigh up all relevant factors in assessing minimum terms of imprisonment to be served by those sentenced to life for murder. There is merit in highlighting these two factors because they can only send an important signal to the actual and potential perpetrators of domestic violence—and, indeed, to the victims of such domestic violence because, of course, victims are often frightened out of reporting domestic violence even when it is an attempt at strangulation. The evidence that that can escalate to murder in due course is important; it is important that potential victims, as well as potential perpetrators, should know of that signal. In my view, that is a powerful reason for supporting this instrument.
Lord Sandhurst (Con)
My Lords, this statutory instrument amends Schedule 21 to the Sentencing Act 2020. These regulations implement key recommendations from the Domestic Homicide Sentencing Review led by Clare Wade KC and mark an important step forward in how our legal system treats cases of murder that involve domestic abuse. They are welcome, and I say that notwithstanding the concern that they may add to the prison population, as explained by the noble and learned Lord, Lord Phillips.
The instrument introduces two new statutory aggravating features in determining the minimum term for murder: first, where the offender is engaged in controlling or coercive behaviour towards the victim; and, secondly, where the murder has involved sustained and excessive violence, sometimes referred to, in depressing jargon, as “overkill”. By contrast, importantly, it conversely explains a new mitigating factor, putting it on a statutory basis. It recognises that an offender’s culpability may be reduced where the victim has engaged in controlling or coercive behaviour towards the offender.
These additions reflect a long-overdue evolution in the way the criminal courts have recognised domestic abuse. The Domestic Abuse Act 2021 broadened our understanding of harm so that it embraced emotional, psychological and economic abuse, but, until now, the sentencing framework for murder has not fully reflected the complex dynamics that can exist in abusive relationships, whether in the context of the abuse suffered by victims before their death or the potential impact of long-term abuse on an offender’s culpability.
We on this side welcome the Government’s decision to bring forward these changes promptly—that is, ahead of the Law Commission’s broader review of homicide. These changes send a clear message: domestic murders are not isolated or inexplicable acts but, often, the tragic endpoint of long-standing abuse.
However, I note the concerns raised by the Sentencing Council, particularly around the interaction between new statutory factors and the existing, established judicial discretion to take such behaviour into account. The council has rightly warned that codifying these factors may risk creating ambiguity or inconsistency in sentencing, particularly if guidance in respect of it is not clear. There is also a risk that difficult evidential issues—in determining, for example, whether a relationship was “intimate” or whether coercive control occurred—could inadvertently complicate proceedings or place additional burdens on the families of victims or on prosecutors.
To mitigate this, we urge the Government to ensure that clear and robust sentencing guidelines are published alongside, and at the same time as, these changes; that the Government provide training for judges and practitioners to apply the new factors consistently; and that there is a commitment to monitor the impact of these amendments, particularly on the outcomes of trials and sentence lengths in domestic homicide cases.
To conclude, subject to those caveats, these regulations are positive, necessary and a welcome reform. They better align our sentencing framework with the reality of domestic abuse and send a strong signal that such crimes will be treated with the seriousness they deserve. I commend the regulations to the Committee.
Lord Timpson (Lab)
My Lords, I am grateful for the contributions to this debate. I hope that noble and noble and learned Lords will appreciate that, due to some personnel changes in the department over the last couple of days, I may not be as familiar with or as expert on this as my noble friend Lord Ponsonby, who would have been here today.
The observation of the noble and learned Lord, Lord Phillips, on prison capacity is important. Due to the existing length of murder sentences, these changes will not increase the prison population for at least 13 years after they come into force and will not reach a steady state until 2052 for strangulation and 2062 for the end of a relationship. This will be factored into our long-term capacity planning. Also, Clare Wade KC found that many domestic murders, invariably those committed by men against women, take place at the end of a relationship, when the perpetrator perceives that they can no longer control the victim. Further analysis of the sentencing remarks in these cases also found that, in some instances, the sentencing judge appeared to consider the provocation or distress caused to the perpetrator by the breakdown of the relationship as mitigation for the crime. This factor will ensure that the perpetrators in these cases take full responsibility for their crimes.
The noble Lords, Lord Marks and Lord Sandhurst, referred to Clare Wade’s recommendations. It is important to recognise that the Government are not taking forward the Domestic Homicide Sentencing Review’s recommendation to disapply the 25-year starting point to domestic murders. Implementing this recommendation would lead to significant inconsistency between domestic and non-domestic murders where a weapon has been taken to the scene. The review also recommended excluding sexual infidelity as mitigation, and excluding the use of a weapon as aggravation in domestic murder cases. The Government do not consider these recommendations to be necessary, as they largely involve putting a non-statutory position into legislation.
The Government recognise that application of the factor and whether there is sufficient evidence to establish it will depend on the circumstances and available evidence in a particular case. If evidence of the factor cannot be established to the criminal standard, the aggravating factor will not apply. The Government recognise that, in some cases, establishing whether the victim and offender had been in a relationship and whether this was connected to the murder may increase the length of some legal proceedings. The sentencing framework is clear that the statutory aggravating factors are not exhaustive; the sentencing judge is able to consider any relevant factors in terms of aggravation, including pregnancy and stalking. The end of a relationship factor in particular is not necessarily intended to acknowledge the vulnerability of the victim; it is intended to address the link between resentment at the end of the relationship on the part of the perpetrator and coercive control.
The noble and learned Lord, Lord Phillips, and the noble Lord, Lord Marks, referred to strangulation. Strangulation has been recognised as a method of exerting power and control, which is particularly relevant in the context of domestic abuse where female victims are assaulted by physically stronger males. The review found that nearly a third of the murder cases involved strangulation—all of these involved a male perpetrator and a female victim—and highlighted that strangulation is a gendered form of killing that encapsulates the vulnerability of the victim and inflicts a high degree of suffering. I am sure that noble Lords will look forward to the process of the Law Commission’s review and keep a close eye on how it progresses, although it will take considerable time.
A number of today’s remarks gave general examples that are sobering reminders of the necessity of these reforms. The noble Lord, Lord Marks, is quite right to refer to victims being fearful of raising domestic abuse, even though it can sometimes be very severe abuse. I believe that the statutory aggravating factors introduced by this instrument are essential to ensure that our sentencing framework appropriately recognises the particular and wider harms that arise in cases of domestic murder. While it is for the judge to determine the appropriate weight to be given to the aggravating factors in each case, we expect that these measures, along with Clare Wade’s recommendations already implemented, will have a significant impact on the custodial terms given to perpetrators in these cases. This rightly recognises the seriousness of domestic murders, ensuring that sentencing in these cases delivers justice for victims and their families.