Sentencing (Pre-consolidation Amendments) Act 2020 (Exception) Regulations 2020

Baroness Scott of Bybrook Excerpts

Wednesday 16th September 2020 Grand Committee

Moved by

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Sentencing (Pre-consolidation Amendments) Act 2020 (Exception) Regulations 2020.

[Baroness Scott of Bybrook (Con)]

My Lords, this draft instrument will ensure that the victim surcharge payable by an offender sentenced under the forthcoming sentencing code will not be higher than the amount which would have applied at the time they committed the offence.

For those not familiar with the surcharge, it is imposed by the court on offenders following sentence to ensure that offenders hold some responsibility for the cost of supporting the victims and witnesses of crime. The amount imposed varies, depending on the age of the offender and the type of sentence they received. Income from the surcharge contributes to the victims and witnesses budget, which funds support to help victims and witnesses of crime.

The sentencing code is a consolidation of sentencing procedural law in England and Wales. It will bring much-needed clarity and accessibility to this area of law by providing sentencing courts with a point of reference for the procedural provisions which govern the sentencing process. The Law Commission’s Sentencing Bill, which creates the sentencing code, is currently before Parliament.

Let me turn to the purpose of this instrument. In April, the Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2020 came into force. That order increased the surcharge payable by an offender in particular circumstances. Importantly, these increases apply only where a court deals with someone who committed an offence after that order came into force. Since then, the Sentencing (Pre-consolidation Amendments) Act 2020 received Royal Assent on 8 June. That Act makes amendments to existing sentencing legislation to facilitate the consolidation of sentencing procedural law in the sentencing code. The pre-consolidation Act gives effect to a clean sweep of sentencing law. This removes the need for sentencing courts to identify and apply historic versions of sentencing law and, as a result, the current law as enacted in the sentencing code will apply to all sentencing decisions when an offender is convicted after its commencement, irrespective of the date that the offence was committed.

To protect the fundamental rights of offenders, the clean sweep is subject to certain exceptions. They are set out in Schedule 1 to the pre-consolidation Act. The Act also allows for further exceptions to the clean sweep to be made by statutory instrument. These regulations are made under that power. In accordance with the provisions of the pre-consolidation Act, the clean sweep will apply to the 2020 order unless steps are taken to exempt it. This would mean that the increased surcharge amount specified in the 2020 order would apply to certain offenders sentenced under the sentencing code who committed offences before that order came into force. That is clearly unfair and would run contrary to the aim of Article 3 of the 2020 order, which states that those increases apply only where a court deals with someone who has committed an offence after that order came into force.

This draft instrument therefore exempts Article 3 of the 2020 order from the clean sweep, meaning its effect will be preserved after the sentencing code is commenced. As a result, whenever a court deals with an offender under the sentencing code for an offence committed before the 2020 order came into force, the amount of surcharge payable by the offender will remain the amount that applied when the offence was committed.

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[Baroness Scott of Bybrook (Con)]

My Lords, I am grateful for the limited but good contributions to this debate. Before I answer some of noble Lords’ questions, I reiterate that the purpose of this instrument is to ensure that offenders sentenced under the sentencing code for offences they committed before the Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2020 came into force will not be liable for the increased surcharge amounts specified in that order.

I will address a couple of the points. In response to the noble Lord, Lord Blunkett, I will look at Hansard, particularly the outstanding issues that he brought up from previous debates, and I will ask the department to look at how we might respond to him.

There is a difference between this and the sentencing White Paper, which I believe was published yesterday. This paper will look at sentencing policy. The Government are serious about fighting crime and protecting the public from its devastating consequences. Under this Government, the most serious offenders are more likely to go to prison and for longer, helping to protect the public and keep communities safe. That is what the White Paper will hold, and we expect that it will eventually come through as legislation. However, the legislation we are talking about that this instrument applies to is the Law Commission’s Sentencing Bill. That will consolidate all the sentencing procedural law in England and Wales into a sentencing code, which will provide courts with a point of reference for procedural provisions which govern the sentencing process. The Sentencing Bill does not introduce any new sentencing law, amend the maximum penalties available for criminal offences or increase the scope of minimum sentencing provisions. They are therefore very different pieces of legislation. It is important to understand that, and that this small instrument needs to be laid just before the sentencing code comes in so that we are fair to all offenders in future.

I am sorry that the noble Lord, Lord Thomas of Gresford, is puzzled but I am sure we can help. He says that there is a discrepancy over surcharge levels. A factsheet on surcharge levels is available and we can let him have it; it makes it very clear that, depending on the type of sentence, whether you are a young person, an adult or an organisation, there are different amounts and the courts will use those surcharge levels to determine how much has to be paid by the offender.

On the point of the noble Lord, Lord Ponsonby, I talked about the Sentencing Act—not the Sentencing Bill. On the PCCs, the whole issue of what happens to the surcharges is important—I asked the same question. However, the Government feel that it is an important charge on offenders, both individuals and organisations, by the court. It is collected alongside all other criminal impositions by the National Compliance and Enforcement Service, which is part of HMCTS.

The purpose of the victim surcharge is to make sure that offenders hold some responsibility for the cost of helping the victims cope with and recover from the impact of their crimes. The level of surcharge imposed is dependent on the severity of the sentence the offender receives, whether they were under the age of 18 or an adult when the offence was committed and whether they are an individual or an organisation.

The victim surcharge contributes, as I have said, to the victim and witness budget, which is used to fund support services for victims and witnesses of crime. In 2019-20, about a third of the victim and witness budget, which was just over £92 million, came from the victim surcharge.

The noble Lord, Lord Ponsonby, asked about the ability to pay. We estimate that around 65% to 70% of all victim surcharges imposed are collected. However, collection rates vary considerably from year to year. In 2018-19, £46 million of the victim surcharge was imposed on offenders and £34 million was collected. Therefore it differs, but the Government feel that it is important for offenders to understand their responsibility to victims and witnesses. However, this is a small piece of regulation that will also be fair to the offender as we move forward into a different way of working.

With that, I commend this instrument to the Committee.

Motion agreed.