Sentencing Bill

Lord Keen of Elie Excerpts

2nd reading
Wednesday 12th November 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by paying my tribute to the late Baroness Newlove, not only for her contribution to this House but for the considerable work she did as Victims’ Commissioner. I also thank the Minister for his introduction of the Bill, and all noble Lords for the detailed, informed and sometimes diverse opinions that they have expressed.

The importance of this debate is underlined by the fact that the Bill received so little scrutiny in the other place. It was in Committee for one day. For a Bill so substantial and with such wide ramifications, that seems wholly inadequate. Indeed, it meant that many of the radical changes proposed in it were never even mentioned in the other place, let alone discussed or debated. It is essential that we have the opportunity to examine the Bill carefully and, in some respects, forensically.

I will make a number of general observations. Is this simply an attempt to tackle overcrowding in our prison estate? I certainly hope not, yet there was no mandate for these reforms in Labour’s manifesto. There was a reference to sentencing:

“Even when criminals are found guilty, the sentences they receive often do not make sense either to victims or the wider public”.


Will this Bill improve the complexity but not the comprehension of sentencing? I fear that might be the case. As the noble and learned Lord, Lord Thomas of Cwmgiedd, observed, the public must be able to comprehend that disposals such as community sentences are not only effective but a form of punishment. It will be important to explain that early release is in the public interest and not just a fiscal necessity. How is that to be done?

As a matter of generality, I also have a degree of concern about the clarity of the proposed reforms and powers that are to be implemented. I make particular reference to Clauses 13 to 16 and Clause 24, which introduce powers for the courts to forbid offenders to enter drinking establishments and attend sports and other public events, as well as to inhibit them from driving and even from leaving specified geographical areas. It is simply not clear in the Bill how any or all these measures would be implemented or enforced. A number of questions arise. How is that to be done? Where will the funding come from? On whose shoulders will enforcement lie? Will it be the responsibility of public houses and those in control of sporting and other public venues? Will they be required to ensure that their own customers are not under court orders? This will require meaningful and effective reform, and, in turn, it will require a meaningful and effective debate so that we can understand how these provisions will work in practice.

Then there is the role of the courts. The Bill leaves the Government’s stance on this somewhat unclear. Clauses 11 and 12 deal with rehabilitation activity requirements. They provide that probation officers, rather than the sentencing courts, will decide on, for example, the number of days of activity in a community order that someone must complete. That means that probation officers will, in effect, replace the courts in the imposition of sentences on those on community orders. That transfers a crucial power, and indeed an important role, from the courts to the Probation Service—a point to which I will return. Again, we require a degree of clarity on that.

Furthermore, the Bill appears to blur the Government’s stance on the relationship between the courts and the Executive, a point addressed by the noble and learned Lord, Lord Burnett of Maldon, when he referred to the provision in Clause 19 for a statutory requirement for the Sentencing Council to obtain approval from the Lord Chancellor before sentencing guidelines are issued. This implies that the Government believe there should be a close relationship between the Executive and the judiciary on the issue of sentencing, and yet, when concerns were expressed about sentencing for offences such as fly-tipping, shoplifting and knife crime during a recent debate on the Crime and Policing Bill, the Government’s response was:

“sentencing in individual cases is a matter for our independent judiciary”.—[Official Report, Commons, 3/4/25; col. 211.]

Is it, and will it be, under the provisions of this Bill? More particularly, how are we to consider the provisions in Clause 18 with respect to the apparent veto? As the noble and learned Lord, Lord Burnett of Maldon, again pointed out, it is somewhat opaque in its provisions.

Turning to some more specific issues, we have the end of short-term custodial sentences and the introduction or development of early release. All of these may, in principle, be attractive, but under Clauses 1 and 2, for example, there will be a presumption that custodial sentences of 12 months or less will be suspended except in limited circumstances, such as breaches of protection orders. Does that mean that, for example, where someone pleads guilty at the first opportunity and gets a remission in their sentence, someone who would have received a sentence of 18 months but is to receive a sentence of 12 months will find themselves with a suspended sentence? In other words, does this presumption apply not only in respect of custodial sentences of 12 months but those up to 18 months? I would welcome the Minister’s response on that.

It is estimated that the implementation of these provisions would mean that about 40,000 criminals would avoid prison entirely. But for what? The purpose of sentencing is not purely punitive but to protect the public from repeat and violent offenders. As many noble Lords observed, rehabilitation and community orders are essentially resource-based. The noble Lord, Lord Foster of Bath, put the matter very pithily when he said you need the means to achieve the ends. Is the Minister confident that this Bill is going to provide the means to the end? I bear in mind the way in which the Treasury often regards the Ministry of Justice and its role as one of the orphaned children of government; there is a considerable barrier for the Minister to overcome in that respect.

On early release, Clause 20 will reduce it to one-third of the original sentence. I acknowledge that, if we go back to 1967, there were similar provisions in place, albeit that the test was significantly different to the one proposed in this Bill. If we have such early release, how are we going to accommodate the police estimate that this could lead to a 6% increase in overall crime, or approximately an additional 396,000 offences per year, the vast majority of which will involve reoffending by those who have been released from prison?

We are liable to find ourselves in a cycle of release and recall unless we are very careful. The noble Lord, Lord Hastings of Scarisbrick, made clear why that cycle can be broken only by effective rehabilitation. Again, I repeat the observation of the noble Lord, Lord Foster of Bath: you need the means to achieve the ends. Where are the means? Can that be explained?

I am also concerned that the Government’s messaging may be somewhat inconsistent. The Government recently expressed outrage that criminals such as Hadush Kebatu were at large on the streets, and yet, under this Bill, offenders of his type who received a 12-month sentence would be at large on the streets. Could the Government clarify whether they are genuinely committed to including those convicted of such offences in this scheme? It seems that their position is that the community is capable of accommodating such offenders, but it can possibly accommodate them only if effective probation services are in place. Again, it is a case of requiring the means to achieve the ends.

There is also a risk that this Bill simply sends the wrong message to repeat offenders. The presumption against short custodial sentences may appear to have merit, but it removes a vital deterrent to repeat offending, particularly in low-level crimes, anti-social behaviour, theft—particularly retail theft—domestic violence and other cases of stalking and harassment. Such so-called minor crimes are very often the precursors to more serious offending. So short sentences can play an important role as an intervention and a deterrent against that sort of persistent and repeat offending. Has that been properly taken into account when considering the use of non-custodial or suspended sentences in so many of those cases?

There is a risk that we are sending the wrong message to repeat offenders. Indeed, as one noble Lord observed, we may also be sending the wrong message to very young offenders, who may believe that the future holds no risk of imprisonment if they engage in what is regarded as, or what they are persuaded to believe is, low-level criminality.

I suggest that the Bill might involve potential overreach for the Probation Service itself, and will certainly place considerable burdens on that service. Clauses 1 and 2 deal with short custodial sentences being replaced by non-custodial sentences, and Clauses 20 to 23 deal with early release, all of which will increase the burden on the Probation Service. But then Clauses 11 and 12, with respect to rehabilitation, will require probation officers to sentence offenders to the number of days they must complete. Clause 34 will enable probation officers to reduce the amount of unpaid work that an offender must complete.

I will come back to these provisions in a moment, but all these clauses require officers to manage, supervise and monitor a very large number of offenders, who will have avoided custody or have been released early under the Bill. There are, of course, provisions for the probation reset to help or assist the struggling Probation Service, but, when we look at the financial impact assessment, it could at best be described as opaque. We are told that in some instances there will be a modest increase in the cost of services and that the remainder has not been calculated. But probation officers will be expected to take on these new tasks, and a question arises as to whether they will be equipped financially, apart from anything else, to take them on.

But there is also a perhaps more fundamental constitutional issue to be considered here. If probation officers will take on these judicial-type responsibilities, which are being transferred potentially without corresponding investment in training or supervision, where will that lead us? Unlike sentencing decisions taken in open court, these apparently administrative terminations will occur without transparency, oversight or, it would appear, any form of appeal mechanism. The Government have not provided any mechanism to ensure that these decisions are monitored, audited or even transparently reported. I pick up the point made by the noble Lord, Lord Hastings of Scarisbrick, about there being room for very material error where you impose these obligations on staff who are potentially underresourced, undertrained and unable to determine with any certainty how they will perform these new functions, which are to be regarded as at least quasi-judicial functions. That represents a major constitutional shift in the balance of responsibility between the judiciary and the Executive. Has the Minister thought that through and considered the operational pressures that this will actually impose on the Probation Service?

Finally, and very briefly—with apologies for being over time—I acknowledge the point about IPP sentences. As a matter of principle, they cannot be maintained. The onus placed on this small cohort is placed on no other prisoner in the prison estate, and they will struggle time and again to overcome it, because we have now reduced that cohort to perhaps the least able to meet the requirements presently placed on them with regard to how they are to be dealt with when they come to seek release. I do not offer a solution to that—I am well aware that the need for a solution has dogged Government after Government—but we cannot wait another eight years to see this play out and I invite the Minister to consider seriously whether this matter should be addressed in the Bill.

Sentencing Bill

Lord Keen of Elie Excerpts

Committee stage
Wednesday 26th November 2025 Lords Chamber

Moved by

[Lord Keen of Elie]

1: Clause 1, page 1, line 14, leave out “not more” and insert “less”
Member's explanatory statement
The presumption for a suspended sentence would apply to sentences of less than 12 months.

[Lord Keen of Elie (Con)]

My Lords, I will speak to the set of amendments in my name. I am sure that, throughout the course of this Committee, many noble Lords will debate and question precisely which offenders they think should be excluded from the numerous provisions for suspended sentences included in the Bill. The Government have made the underlying principle behind their approach quite clear: that only those who pose a serious risk of harm to a particular individual should be denied the privilege of a suspended sentence. On these Benches, we believe that the exemptions to Clause 1 should be much wider. We have tabled many amendments to that effect, and I will speak to them at several points throughout this Committee. I am sure that noble Lords will disagree with some of our suggestions, and I welcome the debate that will ensure that we scrutinise the Bill with care. The Bill received just one day of Committee in the other place. It is therefore imperative to carry out our duty to provide the Bill with the scrutiny that it requires.

These amendments do not directly relate to the specific offender types who we believe should spend their sentences in custody. Rather, this group of amendments seeks to clarify important practical and operational points of the Bill, which either the Government did not account for or appear to be in favour of. I have tabled these amendments to highlight the harmful effects that the Bill will have on communities and individuals, if it becomes law in its present form.

Amendments 1 and 12 may seem relatively minor in the grand scheme of the Bill, but, without their inclusion, a significant number of dangerous criminals will be free to roam the streets. There are many crimes for which a 12-month sentence is imposed, and these amendments seek to ensure that such offenders are past the cut-off point for suspended sentences to apply.

Just last month, a sex offender, Hadush Kebatu, was released from prison by accident. The Foreign Secretary said repeatedly that he was “livid” that such a man had been let loose and was free to roam the streets. Further, the Home Secretary called the same man a “vile sex offender”. Countless Government Ministers expressed their thoughts and sympathies for the victim and her family, and we on these Benches could not agree more with that assessment of Mr Kebatu.

Mr Kebatu was serving a 12-month sentence. He was convicted for trying to sexually assault a 14 year-old girl. A 41 year-old man convicted of a child sexual offence was allowed to roam the streets and the Government purported outrage, yet under the provisions of their own Sentencing Bill offenders such as Mr Kebatu would be at large not simply for a handful of days but for the entirety of their sentence. When questioned about this, the Minister simply explained that there were separate provisions for foreign-national offenders, but this misses the point. It does not detract from the fact that there are thousands of offenders convicted of charges similar to those of Mr Kebatu, all of whom would be let out on to the streets after their conviction for child sexual assault. Will the Minister finally accept this as being the Government’s stance with respect to these proposals?

In an ideal world, I would rather see all such offenders behind bars for the entire duration of their sentence, and I have tabled further amendments to that effect. However, Amendments 1 and 12 seek at least to close this obvious gap in justice to some degree by ensuring that only offences with sentences of less than 12 months are eligible for suspension. That way the one-year sentences imposed on men such as Mr Kebatu and other sexual offenders would be served in custody and not on our streets.

Amendments 2 and 13 similarly seek to plug apparent drafting oversights in the Bill. At present, it is not yet clear whether the presumption of a suspended sentence would apply to that sentence before or after a guilty plea is submitted. Given that in all published materials of the Government they have indicated that only short- term sentences of up to one year should be suspended, I can only guess that they intended for Clause 1 to take effect before guilty pleas were submitted. I have therefore tabled Amendments 2 and 13 to ensure that the presumption of suspended sentences should apply before any credit is given for a guilty plea.

If this is an amendment which the Government wish to oppose then I suggest they must make clear to all noble Lords, and indeed to the public, that they in fact wish to suspend sentences for all crimes up to 18 months, rather than 12 months. That is because any offender charged with a crime of 18 months has the ability to reduce it by a third by submission of an early guilty plea, which will subsequently make them eligible, apparently, for an automatic suspended sentence. I suggest that this will simply open a Pandora’s box for a whole new subset of crimes that will fall into the eligibility criteria of Clause 1.

The exclusion of an express clause negating credit for a guilty plea in this context will have unintended and dangerous implications for our justice system. It risks fundamentally undermining public confidence in justice if offenders come to recognise that by pleading guilty they can simply avoid prison altogether and serve their sentence in the community. That distorts incentives in a manner that no responsible Government should welcome. It may even encourage individuals charged with serious crimes, regardless of whether or not they committed them, to plead guilty, purely to escape a custodial sentence. That cannot be a principle on which our system of justice is based. I hope that the Minister will take this point seriously, and I look forward to hearing his response.

Amendments 3 and 14 address a further operational incoherence in Clause 1: the length of time for which a suspended sentence would be imposed. Under the Bill as drafted, there is no clarity as to whether suspended sentences imposed automatically under this presumption would be suspended for the maximum period. In many cases, an offender could therefore benefit from a dramatically reduced suspension period, serving little to no meaningful time under supervision. My amendments seek to ensure in statute that this is simply not the case. If the intention is truly to uphold the integrity of sentencing, any suspended sentence imposed as a substitute for immediate custody must be suspended for the maximum allowable period. Anything less would undermine the very concept of accountability that the public rightly expect from our justice system.

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[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

My Lords, it is a great honour to have the opportunity to speak for the Government in Committee on the Sentencing Bill. As noble Lords know, I have devoted much of my life and career to criminal justice reform, in particular the question of how to reduce reoffending. Therefore, I am particularly pleased to have the opportunity to speak to the amendments on short sentences, tabled by the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst. While I am grateful to noble Lords for their constructive and thoughtful input on this Bill, inside and outside the Chamber, I remain convinced that the position of the Bill is the right one. I appreciate the words from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Beith, along those lines.

Let me be clear at the outset: we are not abolishing short sentences. Judges will still have discretion to send offenders to prison where there is a significant risk of physical or psychological harm to an individual, where they have breached a court order or in exceptional circumstances. However, the evidence shows that those given a community order or suspended sentence reoffend less than similar offenders given a short prison sentence. That is a key driver behind the presumption to suspend short sentences and why it must continue to apply to sentences of 12 months or less.

We are following the evidence to reduce crime, leading to fewer victims and safer communities, and we are also following the lead of the previous Conservative Government who originally introduced this measure during the last Parliament, without the additional amendments we are debating today.

Given the clear evidence on short sentences, the Government do not agree with introducing further exemptions. To do so could increase reoffending and so create more victims. I came into this job to build a criminal justice system that leads to fewer victims, not more.

I will now turn to the specific points that noble Lords have raised in this debate. The noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, have both raised important points on early guilty pleas through Amendments 2 and 13. I can assure noble Lords that I have reflected on these amendments and considered them at length and with great care, but it has long been the practice of the courts to give a reduction in sentence where a defendant pleads guilty. This avoids the need for a trial, enables cases to be dealt with quickly, and shortens the gap between charge and sentence. Moreover, it can save victims and witnesses from the concern about having to give evidence. This is particularly important in traumatic cases.

Furthermore, the amendments proposed would create inconsistencies. The presumption would not apply where an early guilty plea mitigation brought the sentence down to 12 months or less, whereas it could still apply where the court applied any other mitigation that had the same effect. For these reasons, the Government do not support these amendments.

Through Amendments 3 and 14, noble Lords have also proposed requiring courts to impose suspended sentence orders with a maximum operational period of two years. This would not be appropriate for every suspended sentence order without consideration of the particular facts of the case, and would place additional burden on the Probation Service. The evidence shows that those given a community order or suspended sentence reoffend less than similar offenders given a short prison sentence. We are following the evidence to reduce crime, leading to fewer victims and safer communities.

It is absolutely clear that the last Government left our Probation Service under immense pressure. Fourteen years of austerity came alongside a botched privatisation. The scars are still there, and we are fixing it. Sentencing must always be proportionate to the offence committed, taking into account all the circumstances of each case. It is right for the judiciary to retain discretion to consider this and make the sentencing decision. This amendment would remove that discretion.

I thank the noble Lords again for their amendments and the opportunity to debate them. I hope I have sufficiently explained why our approach of following the evidence is the right one to take. With that in mind, I ask them not to press their amendments.

[Lord Keen of Elie (Con)]

My Lords, I thank all noble Lords who have contributed to this part of the Committee debate, and I thank the Minister for explaining the position of the Government with regard to these proposed amendments.

On early guilty pleas, it appears to me, respectfully, that if the Government are going to maintain the position that has been set out, they should be explicit in the Bill that they are not dealing with suspension in respect of sentences of 12 months; they are dealing with suspension in respect of sentences of up to and including 18 months. That is far from clear in the Bill. Whether or not the Government accept our amendment, it is a point that has to be made clear so that public confidence can be maintained in the nature of the sentencing system that is going to be introduced.

With regard to the matter of suspension and the maximum suspension period of two years, we maintain that if these moves are going to be taken, it is only appropriate that the suspension should be for a period long enough to enable some form of rehabilitation to take place, because otherwise it is simply pointless. Again, I ask the Government to reconsider their position, but at this stage I will withdraw this amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Keen of Elie]

6: Clause 1, page 3, line 10, at end insert—
“(3A) But this section does not apply if the offender—(a) has been convicted of three or more other offences in the 12 months leading to the conviction for which a suspended sentence would otherwise have been passed (the “current offence”);(b) has been convicted of 10 or more offences prior to the current offence;(c) has been convicted of the same offence as the current offence on three or more previous occasions; (d) is convicted of an offence (the current offence) with a mandatory minimum custodial sentence;(e) has previously received a suspended sentence order or a custodial sentence for the same offence as the current offence;(f) has breached a suspended sentence order or orders on three or more occasions, either by breaching community requirements or committing a further offence;(g) has a history of poor compliance with court orders, according to a written or oral statement from a probation officer;(h) at the time of the current offence, was—(i) subject to a supervision order, or(ii) on licence, or subject to supervision, under Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release, licences, supervision and recall);(i) is convicted of an offence eligible for consideration under the Unduly Lenient Sentence Scheme under sections 35 and 36 of the Criminal Justice Act 1988; or(j) is being sentenced for three or more offences concurrently.”Member’s explanatory statement
This amendment would prevent suspended sentences from being passed in a range of circumstances.

[Lord Keen of Elie (Con)]

My Lords, these amendments touch on similar issues to those we have already addressed. They highlight what we say is a fundamental flaw in Clause 1—the blanket presumption of suspended short custodial sentences even for offenders who pose a serious and ongoing risk to the public.

Under the Bill as it is framed, there is the real possibility that individuals convicted of crimes such as robbery, grievous bodily harm, sexual assault, burglary and offences involving knives or other bladed weapons could serve the entirety of their sentences in the community. As we have just noted, that may be far less than a suspension of two years if the Government proceed as they intend. From the point of view of public safety and public confidence in the justice system, that appears to be unacceptable.

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[Lord Timpson (Lab)]

I thank the noble Lord for raising the point about emergency workers: they deserve all our attention and we are very proud of what they do in often very difficult circumstances. I will take away his challenge on that.

I have met a number of people—especially women—in prison who are there for assaulting an emergency worker. While those assaults should not happen at all, often those people were in a very traumatic situation and, when the emergency services came to their aid, they reacted in the wrong way. That is something we need to bear in mind as well.

[Lord Keen of Elie (Con)]

My Lords, I am obliged for all the contributions from across the Committee and for the response from the Minister. Everybody appreciates that Clause 1 is not prohibiting anything. Nevertheless, a number of noble Lords, and the noble Baroness, Lady Chakrabarti, talked eloquently and correctly about the discretion of our judges and the trust that we should place in our judges. But that is not what Clause 1 is doing. Clause 1 is saying they must apply a presumption. They are not being trusted with it; they are being told they must apply it. That is one of the issues that we need to address.

A number of specific exceptions were tabled in the amendments, but I take on board the point made by my noble friend Lord Hailsham about it being far more straightforward to produce some generic description in this regard. Indeed, as the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out, it may even be something that should be left to the Sentencing Council at the end of the day. But that is another issue. I read this quotation:

“Even when criminals are found guilty, the sentences they receive often do not make sense either to victims or the wider public”.


That is from the Labour manifesto. My fear is that Clause 1 is simply going to reinforce that perception, and that is one of the concerns that we have with it.

I appreciate the point made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Foster, about the potential for a suspended sentence to lead to support and rehabilitation. The problem is that those facilities are simply not available at the present time and, in any event, we do not know what period of suspension might or might not be imposed by the courts. It may well be one or two years, but, as the Bill is framed, it may be much less and leave no sensible opportunity for either support or rehabilitation.

There is also the matter of statistics. The noble Lord, Lord Foster, alluded to some well-known statistics about the fact that those who are in custody for short sentences are much more likely to repeat offences when they come out of prison than those who have been given a suspended sentence. But one must bear in mind that those who have been given a suspended sentence have generally committed a far less serious offence than those who have been given a custodial sentence, and that those who are given custodial sentences for relatively minor offences are given those custodial sentences because they are repeat offenders. One must bear in mind Disraeli’s observation that there are lies, there are damned lies and there are statistics and, therefore, we have to approach them with a degree of care. I understand and appreciate that there is more generic evidence to suggest that suspended sentences, when properly applied, controlled and maintained, can have beneficial effects—nobody doubts that for a moment—but there is a very real need here to address, among other things, the whole scourge of repeat offenders.

This arises particularly in the context of Amendment 8 from my noble friend Lord Jackson, which highlights burglary as a particular offence. Burglary is an intensely intrusive crime that leaves victims traumatised, and it is inclined to attract repeat offenders. Its social damage is considerable. There are particular crimes of that nature, given their impact on society as a whole, that should attract something more than a suspended sentence, given the fear is that somebody will simply repeat them. Similar observations can be made on knife crime as well.

I fully understand that there is a need to revisit Clause 1 and its implications. We have sought to do so by identifying particular or specific exceptions to it. There is, as I indicated, and as outlined by my noble friend Lord Hailsham, potentially a better route to that conclusion. Indeed, to echo the words of the noble and learned Lord, Lord Thomas of Cwmgiedd, there is hopefully a simpler route to that conclusion. For present purposes, however, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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Moved by

[Lord Keen of Elie]

30: Clause 2, page 6, line 39, at end insert—
“(2B) But a suspended order is not available in relation to that sentence if the sentence is in relation to—(a) any offence under the Sexual Offences Act 2003 which involves a child under 13;(b) any offence of grooming or inciting a child to engage in sexual activity;(c) any offence of creating, distributing or possessing indecent images of children;(d) any offence of assault occasioning grievous bodily harm (GBH) or wounding with intent; (e) any offence involving use or possession of a knife or other offensive weapon in the commission of a violent offence;(f) any offence of stalking or harassing a victim with repeated conduct;(g) any offence against a vulnerable person (including children or adults) involving serious harm or risk;(h) any domestic abuse offence where the victim is a current or former partner or family member, including controlling or coercive behaviour and any offence involving violence, threats, or psychological abuse.(2C) The changes made by this section to the power under sections 264 and 277 of the Sentencing Code must not come into force until the Secretary of State has consulted on, and ensured the necessary exclusion list under subsection (2B) is operational for, all offences considered to involve serious violence, sexual offences, offences against children or vulnerable persons and domestic abuse offences.”Member’s explanatory statement
This amendment would disapply the ability of the court to suspend sentences to those convicted of the offences listed in the amendment, and would require the Secretary of State to consult on and ensure exclusions for those convicted of other serious violent and sexual offence categories.

[Lord Keen of Elie (Con)]

My Lords, the group of amendments in my name raise important points concerning Clause 2. Our concerns here stem from the same concerns that gave effect to our proposed amendments in respect of Clause 1. Of course, we have sympathy for the current pressures on our prison system, but we must also recognise that, in essence, an undiscriminating provision to let offenders remain in the community without custodial punishment is by no means the solution. Indeed, in many ways, the present provisions create greater challenges than Clause 1 in respect of the ability for the suspension of sentences for offenders who have been sentenced for up to three years’ imprisonment.

These are not petty criminals. This provision would apply to those going to prison for crimes such as robbery, grievous bodily harm, sexual assault, organised drug dealing and possession of an offensive weapon. Amendments 30 and 32 provide a list of offences where we believe it would be unacceptable to allow such offenders to serve suspended sentences. I accept that, as my noble friend Lord Hailsham observed when we debated Clause 1, there may be scope for a generic provision here rather than a long list of specific offences, and certainly we will give consideration to that. However, we do not consider that someone convicted of, for example, sexual offences related to a child or grooming should avoid custody entirely.

Without any effective form of custodial sentence, we risk two important consequences. First, the deterrent effects that are inherent to custodial sentences cease to operate. Secondly, serious offenders will have the opportunity to reoffend, having received no effective rehabilitation, and will have continued access to their victims.

Amendments 30 and 32 similarly make provisions for offences of assault and wounding with intent involving weapons such as knives. We believe it is important that offenders convicted of these serious crimes serve their sentences in custody rather than at large in the community. Those convicted of such violent offences should have to spend some time in custody. This is not only to ensure the continued safety of the wider public, but to ensure that the public’s perception is that serious crime of this nature is punished. I again repeat that, although we recognise that prisons are under considerable strain, we cannot allow that to be the chief or principal consideration when it comes to the imposition of sentences.

Finally, Amendments 30 and 32 seek to exclude offenders who have engaged in stalking or harassment, and also those who have been guilty of domestic abuse

“where the victim is a current or former partner or family member”.

I suggest that it is self-evident why such offenders should serve their sentences in prison and not have access to their victims. I note that even in Clause 1, there is an exception in respect of “significant risk of … harm” to “a particular individual”, where the presumption will not apply. Why is there no similar provision in respect of Clause 2 when we are dealing with far more serious offences than those addressed by virtue of a sentence of 12 months?

Amendments 31 and 33 seek to highlight further operational issues with respect to the Bill, and Clause 2 specifically. The clause, in essence, leaves the door open to a multitude of issues that would never arise if a custodial sentence was going to be present. It is entirely possible that someone convicted of assault on several occasions could be handed down a sentence of less than three years under the current sentencing guidelines. This provision would operate to provide that person with the possibility of serving a suspended sentence. Without meaningful accountability, law breaking and crime will continue to proliferate.

I draw particular attention to the proposed new subsection (2B)(g) in Amendment 31, which provides that suspended sentence orders should not be imposed on those who have

“a history of poor compliance with court orders”.

I respectfully suggest that this is an obvious point to make. Those who clearly have a history of not following community orders should not be placed immediately back into society after committing a crime. Yet that is a very real possibility under the provisions of Clause 3.

It would appear that Amendment 34, tabled by the noble Lord, Lord Russell, is perhaps underpinned by the same concerns that are rooted in our amendments, namely the real possibility of dangerous offenders on the streets, thereby putting the public at risk. The noble Lord’s amendment seeks to exempt specified offences of terrorism, violence and sexual offences from suspended sentences. We support the intention behind that amendment and certainly hope that the Government will take it seriously.

I have sought simply to illustrate a few of those instances where it should not be appropriate for a suspended sentence to be available. That is not only so that the crime is met with a proportionate punishment but is also required to ensure that the public can maintain confidence in the criminal justice system. I hope that the Government will take these amendments seriously, and I look forward to hearing the Minister’s response. I beg to move.

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[Lord Timpson (Lab)]

My Lords, I thank the noble and learned Lord, Lord Keen, and the noble Lords, Lord Russell and Lord Sandhurst, for sharing their views and tabling these amendments, which aim to prevent sentences for certain categories of offences from being suspended. I would be interested to hear more about the Marie Collins Foundation; I have never heard of that organisation before. If it would be helpful, I would be interested in having a meeting with the noble Lord and the foundation to learn more and see what I can gain from that.

I must be clear that it is at the discretion of the independent judiciary whether to impose a suspended sentence, taking into account all the circumstances of the offence and following the appropriate guidance set by the Sentencing Council. For example, sentencing guidelines are clear: it may not be appropriate to suspend a sentence if the offender presents a risk to any person or if appropriate punishment can be achieved only by immediate custody. If the offender breaches the order by failing to comply with any of the requirements or committing a new offence, they can be returned to court. If the breach is proven, the courts are required to activate the custodial sentence unless it would be unjust to do so. Of course, criminals serving suspended sentences also face the prospect of being sent to prison if they fail to comply with the terms of these orders. So, under this Bill, someone could receive a two-and-a-half-year sentence, suspended for three years, and with an electronically monitored curfew lasting for two years. In this scenario, if they breach their curfew or commit a further offence, they face the prospect of being sent to prison.

I would like to reassure noble Lords that there is already provision within this Bill to prohibit the use of suspended sentence orders under any circumstances in relation to sentences for offenders of particular concern and extended determinate sentences. These sentences can be imposed in relation to the specific offences listed in the amendment from the noble Lord, Lord Russell, where the court is of the opinion that the offender is dangerous. Currently, if an extended determinate sentence is imposed for two years or less, it is imposed alongside a standard determinate sentence, and both can be suspended. However, the Bill will change that position so that where an extended sentence is imposed, it cannot be suspended under any circumstances, including when it is imposed alongside a standard determinate sentence.

I turn to terrorism sentences. Where a life sentence is not imposed, unless there are exceptional circumstances, a serious terrorism sentence is required if a court is of the opinion that there is a significant risk of harm to members of the public and the offence was likely to cause multiple deaths. The minimum sentence of imprisonment will then be 14 years and therefore a suspended sentence order would not be available. The noble Lords have also proposed to exempt offences with mandatory minimum sentences and those eligible for referral under the unduly lenient scheme. If the offence being sentenced has a mandatory minimum sentence and is capable of being suspended, judges still retain the discretion to impose an immediate custodial sentence when there is the appropriate outcome.

To be clear, we are not abolishing short sentences. Offences falling under the unduly lenient sentence scheme are rightly treated very seriously. I reassure noble Lords that Clause 2 does not interfere with existing mechanisms that allow for the review of sentences in these cases. We believe that these safeguards protect the public while preserving judicial discretion. Sentencing in individual cases is rightly a matter for the courts, considering the full circumstances of the case.

I turn to the amendments tabled by the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, which would prevent the court from suspending a sentence where an offender has not complied with previous court orders and to exempt offenders convicted of multiple previous offences from being suspended. I can reassure noble Lords that the sentencing guidelines are clear. Where an offender has not complied with previous court orders and the court thinks that they are unlikely to comply in the future, that may be a reason not to suspend the sentence.

Additionally, when an offender is in custody—for example, when they have breached their licence conditions by committing a further offence and have been recalled into custody as a result—the court will not suspend the sentence. Sentences are generally served concurrently when the offences arise out of the same incident, or where there is a series of offences of the same or a similar kind, especially when committed against the same person. The key point is that the court should ensure that the overall sentence imposed on the offender is just and proportionate. Noble Lords will know that this Government take prolific offending extremely seriously, and previous offending is already a statutory aggravating factor.

I must also be clear that a suspended sentence is not a soft option. The courts can impose a range of requirements on an offender, ranging from curfews to exclusion zones. This Bill includes tough new restriction zones, which will restrict offenders to a specific geographic area. These will be electronically monitored in most cases and are intended to serve as not just a punishment but an important tool to protect and reassure victims.

Reoffending is unacceptably high for victims and the public, and we must drive it down. That is why we are ramping up intensive supervision courts, targeting the prolific offenders whose criminal behaviour is often driven by addiction or other needs. The international evidence is clear: these courts cut crime, with a 33% decrease in the rate of arrest compared to offenders who receive standard sentences. That is just one way in which this Government are putting the necessary structures in place to build a sustainable justice system going forward.

Suspended sentence orders in appropriate cases give offenders a chance to stay in work, keep stable housing and access support in the community. All of this goes towards reducing repeat offending and supporting rehabilitation, and it is right that that remains the case. By targeting the causes of offending in the community, we can lower reoffending rates and in turn reduce the number of victims. I hope noble Lords are now assured of the Government’s position on this, and I therefore ask the noble and learned Lord to withdraw his amendment.

[Lord Keen of Elie (Con)]

I thank the Minister and other noble Lords for their contributions. These amendments are designed to ensure that dangerous or repeat offenders cannot avoid custody due to a general presumption of suspension.

I hear what the Minister said about the discretion of the independent judiciary, but it seems to me that he is attempting to go in two different directions at the same time—we have only just looked at Clause 1, where he is imposing upon the discretion of the independent judiciary a presumption that has to apply. There is no discretion there; they must abide by the presumption. So, in a sense, we go from one extreme to the other with regard to the justification for these provisions in the Bill, and it is very difficult to understand any underlying logic or principle that is being applied here. I do hope that the Government will give further consideration to Clause 2 and the proposed amendments to it, but, for present purposes, I will withdraw this amendment.

Amendment 30 withdrawn.

--- Later in debate ---

[Lord Lemos (Lab)]

That sounds sensible.

[Lord Keen of Elie (Con)]

My Lords, Clause 3 is of course a novel sentencing tool, and it is entirely correct that the Committee should probe its design with some care. Many of the amendments before us seek reassurance that the scheme will be fair and proportionate, and indeed that it will be workable in practice. The noble Baroness, Lady Hamwee, with her amendment, draws attention to the basic question of impact. An income reduction order must not be set at a level that undermines an offender’s ability to work, train or maintain stable housing. If these orders are to be effective, they must support rehabilitation, not jeopardise the very stability on which it depends. The noble Baroness’s amendments highlight that there is a risk here that requires very clear scrutiny.

The amendments in my name and that of my noble friend Lord Sandhurst raise a series of questions about the architecture of the scheme. As drafted, the Bill establishes broad powers to reduce an offender’s income, yet it leaves almost all the crucial detail to regulations that we have not yet seen and that may in due course prove insufficiently robust.

Amendments 37 to 44 ask the Government to place in the Bill the essential elements that will govern how these orders operate in the real world. They begin by posing the most basic question of all: what do the Government mean by “monthly income”? Are we assessing gross or net income? How are fluctuating earnings to be treated? What of the self-employed or those on irregular or zero-hours contracts? It is very difficult to see how a fair and consistent system can be construed without clear statutory guidance on these points. If Parliament is to authorise a mechanism allowing the state to deduct a portion of a person’s income month after month, it is surely right that we also understand with precision how that income is to be defined, what thresholds will apply, how caps are to be set and which factors the court must take into account before imposing an order.

Amendment 44 goes to the heart of our concern that the Bill as currently drafted lacks the necessary clarity about the conditions under which an income reduction order may be imposed. Leaving this almost entirely to secondary legislation again risks undermining both transparency and fairness—surely qualities that are fundamental to the integrity of such a system.

These amendments illuminate the substantial gaps in the present drafting and ensure that Parliament does not sign off on a broad new power without understanding how it will work in practice and what safeguards will accompany it. I look to the Minister to provide the clarity that has so far been somewhat lacking. For our part, we do not oppose the principle of creating a more flexible and enforceable means-based penalty. But, before we take such a significant step, we must be satisfied that the framework is sound, that the protections are clear and that the consequences, particularly for those on the margins, have been fully thought through. I hope the Minister will address these concerns.

[Lord Timpson (Lab)]

My Lords, one of the three guiding principles of the David Gauke Independent Sentencing Review was to expand and make greater use of punishment outside prison. We are determined to make sure that crime does not pay, which is why we introduced Clause 3, giving courts the power to impose income reduction orders on offenders who receive suspended sentence orders. From the debate we have just had and from my prior conversations, I know that noble Lords have a keen interest in how these will work in practice, and I am grateful for the opportunity to debate this at greater length today. I have been employing prisoners for over 20 years. Many are on day release and, in some cases, a proportion of their earnings goes back to victims. Income reduction orders are inspired by that principle: offenders must pay back to society for the harm they have caused.

I first turn to Amendments 37, 41, 42 and 44, tabled by the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst. They seek to specify what must be contained in the regulations detailing this scheme. I assure noble Lords that we are working cross-government to develop a process for delivering income reduction orders in a way that works cohesively with the rest of the powers that sentencers have at their disposal. We have intentionally kept the legislation flexible to ensure that we can deliver this measure in that way. For example, we do not agree that it would be appropriate for income reduction orders to be mandatory in certain circumstances. This would unnecessarily curtail judicial discretion to decide whether an order should be imposed based on the full facts of an individual case.

The Sentencing Council is actively considering what updates to its guidelines are needed to account for the Bill’s reforms, including these orders. My officials are working closely with the council. I reassure noble Lords that regulations will be subject to the affirmative parliamentary procedure, so noble Lords will have the opportunity to debate and discuss these details prior to implementation.

I turn to Amendments 38 and 40 and am happy to explain the rationale behind the drafting of this Bill. Let me be clear: this measure is a penalty for high-income individuals. It will ensure that criminals who break the law, and who benefit from keeping their jobs and continue to earn a significant salary, pay back to society. I doubt that anyone in the Committee would disagree with that. The intention is to set an income threshold that would apply at an appropriately high level. But the Bill sets a baseline that the threshold for an income reduction order can never be below. The aim is to ensure that those with incomes in line with the minimum wage cannot ever receive this penalty. The minimum wage is set at an hourly rate, and 170 times that is a reasonable approximation of the hours likely to be worked over a month.

Noble Lords have also questioned why there is an upper limit. A core tenet of our criminal justice system is fairness and proportionality. So, setting a maximum percentage of an offender’s excess monthly income that can be collected protects individuals from receiving an excessively harsh penalty. We need to ensure that the punishment fits the crime. If the court determines that a higher penalty is appropriate and the offence is serious enough to carry an unlimited fine, the court will still be able to impose that, either instead of or as well as an income reduction order.

But income reduction orders must not be a disincentive to employment or amplify existing hardship. As someone who has championed the employment of ex-offenders for years, this is the last thing I would want to happen. Therefore, they will be applicable only to offenders who earn or are deemed likely to earn a significant income. We will set the minimum income threshold through secondary legislation at an appropriate level. This will ensure that low-income households are not in the scope of this measure.

As with any other financial penalty, judges will consider an offender’s means and circumstances when choosing whether to apply an income reduction order at sentencing. This can include, but is not restricted to, income, housing costs and child maintenance. Additionally, the provisions in the Bill allow the Secretary of State to set out in regulations the deductions that must be made when calculating an offender’s monthly income for the purposes of assessing whether an income reduction order can be applied.

Amendment 79, tabled by the noble Lord, Lord Marks, proposes to create a power for a sentencing court to require an offender to make periodic payments or other contributions towards the maintenance and welfare of their dependants. I must inform the noble Lord that there are existing mechanisms to deal with payments to dependants. For example, the family courts are able to make spousal maintenance payments on divorce.

This proposed new clause would require the court to inquire whether an offender has responsibility for children or other dependants. Although this is well intentioned, it risks creating practical difficulties. Inquiring whether a person holds parental responsibility, has dependent children or other dependants—and subsequently inquiring about the circumstances and reasonable needs of those dependants—may require interpretation of family court orders, birth records or informal care-giving arrangements for the purposes of verification. Imposing such a duty risks delaying sentencing.

This Government have committed to identifying and providing support for children affected by parental imprisonment. As such, the Ministry of Justice and the Department for Education are working to determine the best way to do this to ensure that children get the support they need. This builds on a range of services offered by His Majesty’s Prison and Probation Service to help families and significant others, where appropriate, to build positive relationships with people in the criminal justice system. This includes social visits, letter writing, video calls, family days and prison voicemail. I hope this addresses the concerns raised by the noble Baroness, Lady Hamwee, and the noble Lords, Lord Marks and Lord Beith. I ask the noble Lords not to press their amendments.

Sentencing Bill

Lord Keen of Elie Excerpts

Committee stage
Wednesday 26th November 2025 Lords Chamber

[The Lord Bishop of Leeds]

My Lords, I shall speak to Amendment 45A in the place of the right reverend Prelate the Bishop of Gloucester, who, regrettably, is not able to be here today. It seems that in wider society there is a greater push for harsher punishment and longer sentences, and there is a tension with what the purpose of such punishment is. This amendment is designed to provide some elucidation on that. It would define in law the purposes of imprisonment and require the courts and the Secretary of State to have regard to the purposes of imprisonment.

His Majesty’s Prison and Probation Service’s strategic objective is to

“carry out sentences given by the courts, in custody and the community, and rehabilitate people in our care through education and employment”.

But there is no statutory or other provision that directly addresses the fundamental purposes of imprisonment. While the Bill sets out the statutory purposes of sentencing, these do not provide guidance to judges on whether imprisonment is appropriate, nor on what should occur once an offender is incarcerated. The need to confront this, we suggest, is quite urgent. There is tension, obviously, between punishment, rehabilitation and restoration.

In the absence of a clear understanding of the purpose of imprisonment, it seems important both for prisoners and their wider families and community, as well as victims, that the expectations of what the particular punishment sets out to do are clear, rather than just handing out a prison sentence and hoping that something good will happen. I should also add that, in my own experience of prisons and talking to people engaged in prison rehabilitation, the resources to enable such rehabilitation to happen—such as education and so on—are reducing, and this cannot be good.

At present, the public express little confidence in the courts and prisons, in part as a result of the lack of clarity around the purpose and use of imprisonment. A clear parliamentary statement on this issue would serve prisoners, who would better understand why they have been imprisoned. This is about clarity. A number of jurisdictions, such as New Zealand, have legislated guidance for courts and the community more broadly regarding this issue. On behalf of those who have signed up to this amendment, I say that this is an amendment that could be taken seriously and would help the judicial system.

[Lord Keen of Elie (Con)]

My Lords, we on these Benches fully support the principle that victims’ rights, safety and experiences must be considered. Included already in the statutory purposes of sentencing is the protection of the public. In practice, courts make an effort to take victims’ interests into account. The explicit addition to Clause 4 raises an interesting principle, and the amendment serves, perhaps, as a useful reminder of the centrality of victims in our justice system. We look forward to hearing the Government’s response to Amendment 45.

Amendment 45A, in the name of the right reverend Prelate the Bishop of Gloucester, would place in statute the purposes of imprisonment and require both the courts and the Secretary of State to have regard to them. The first of these principles is

“the incapacitation of prisoners in order to restrict their ability to re-offend in the community”.

I simply observe that the purposes of Clauses 1 and 2 of the Bill are to the opposite effect. They raise presumptions in favour of the release of prisoners into the community, rather than their incapacitation to restrict their ability to reoffend. I look forward to hearing the Minister’s response to that.

I note that Amendment 45A would reinforce principles already central to sentencing and prison policy, which can only be good for public confidence. If it can lead to improvements in rehabilitation and public protection, then all to the good. Again, I look forward to hearing the Minister’s reflections on the four aims proposed in Amendment 45A.

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, to the noble Lord, Lord Beith, for bringing forward Amendment 45 in his place, and for the spirit in which it has been proposed. The Government share the noble Lords’ goal and dedication to ensure that victims are properly protected within our justice system. That is why Clause 4 makes it clear that the protection of the public explicitly includes victims of crime. This is a significant and, I must stress, intentional step forward. Although I wholeheartedly share the noble Lords’ intentions and commitments, I do not believe that the additional wording proposed in the amendment would add substantive value to what is already being achieved by the changes we are making in the Bill.

Clause 4 will make it clear that courts should consider the protection of victims as part of sentencing. That is very important. This amendment would simply restate what is already made explicit by Clause 4. Of course, the Government’s commitment to protecting victims is not limited to the changes we are making in Clause 4. The noble and learned Lord, Lord Keen, asked me to comment on the centrality of victims to the justice system. I am so happy to do that that I rewrote this speaking note this morning, with the help of the officials.

The Bill contains other important measures that will protect victims. As noble Lords know, we are introducing new restriction zones, which will limit the movements of offenders instead of the movements of victims. We are also creating a new domestic abuse flag at sentencing so that domestic abusers are more consistently identified. This will help prisons and probation services manage offenders effectively and ensure that victims are better protected.

We are taking many steps outside the Bill to protect victims. We are continuing the provision of free sentencing remarks to victims of rape and sexual offences, and we are expanding the use of specialist domestic abuse courts—a very important cause, with which I have been associated for many years—with trained staff to support victims and more co-ordinated management of perpetrators.

I turn to the amendment proposed by the right reverend Prelate the Bishop of Leeds, in the absence of the right reverend Prelate the Bishop of Gloucester, who has made an important contribution to this debate by raising whether the purpose of imprisonment should be defined in legislation. I spent many years chairing the agency board of HMPPS, and one of my jobs was to set the strategy. We spent a long time debating precisely this point and how we should frame it, so I understand the issues the right reverend Prelates seek to address.

Although I agree wholeheartedly that our debates should be guided by principles and evidence, and not by headlines—the noble Lord, Lord Beith, said that one of the most important duties of new legislation is to win public confidence; I entirely share that sentiment— I am afraid that I respectfully disagree that a definition in statute is needed. The purposes of sentencing, including imprisonment, are already set out in statute and reflected in Sentencing Council guidelines. These principles should guide our courts every day and provide the flexibility needed to respond to changing circumstances and emerging threats. With those comments in mind, I ask the noble Lord, Lord Beith, to withdraw his amendment.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, my noble friend Lord Marks of Henley-on-Thames has added his name to this amendment, which would ensure that sentencing guidelines

“provide that domestic abuse is an aggravating factor”.

Clause 6 puts into statute a provision that if the court is passing a sentence and

“is of the view that the offence involved domestic abuse carried out by the offender”,

then the court must state that. This clause is a very important acknowledgement of offences involving domestic abuse. My honourable friend the Member for Eastbourne played no small part in getting this on to the statute book.

Enabling the understanding of offences involving domestic abuse is important, generally and for the victim. I assume that the court being required to state that the offence involved domestic abuse will better enable the MoJ to keep data about this. I do not know whether the Minister will be able to confirm that or, at any rate, note the point that keeping data is important. We are going at little more than a snail’s pace in recognising domestic abuse; it is quite laborious achieving each step. I doubt I need to elaborate on this to noble Lords, but it is important for the victim to have not just a general recognition, but something which is official, stated by the court, of what they have gone through and what underlies it. That is of great significance to the individual.

However, simply providing for findings of domestic abuse provoked the question: and then what? Amendment 46 is intended to provide the answer by putting the matter into sentencing guidelines as an aggravating factor. I believe that the commission of an offence in the domestic context is already an aggravating factor under the sentencing guidelines, with which I struggled over the weekend. However, domestic abuse is more than context. I think the MoJ must accept that, otherwise new Section 56A would refer to domestic context, not domestic abuse. It is important; as people say, you cannot deal with what you cannot name. I beg to move.

[Lord Keen of Elie (Con)]

My Lords, I speak briefly to Amendment 46 in the name of the noble Baroness, Lady Hamwee. As I read it, the amendment seeks to treat domestic abuse as an aggravating factor when determining all sentencing. Of course domestic abuse is a serious pervasive crime and it clearly has profound long-term impacts on its victims. This amendment appears to promote some degree of clarity and consistency, and, indeed, fairness in sentencing. It would ensure that the courts can take full account of both the nature and the impact of domestic abuse when deciding on an appropriate sentence. I look forward to hearing the Minister’s views on it.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, for drawing attention to this important topic. They, along with their colleagues in the other place, have campaigned tirelessly on this issue.

I want to reassure the noble Baroness that we believe that this will improve the quality of data. The amendment we are debating today would require sentencing guidelines to provide that domestic abuse is an aggravating factor in sentencing. I fully appreciate the intent behind the amendment, and the Government wholeheartedly agree that judges should consider domestic abuse when sentencing, but I hope I can reassure the noble Baroness that this is already the position and explain why the Government do not consider a further amendment necessary.

Domestic abuse is already treated as an aggravating factor through the Sentencing Council’s guidelines. Courts are required by law to follow this, unless it would not be in the interests of justice to do so. The Sentencing Council has looked carefully at this issue and has issued an overarching guideline on domestic abuse. That guideline makes it clear that the presence of domestic abuse can make an offence more serious. In addition, a wide range of offence-specific guidelines include

“an offence committed within a domestic abuse context”

as a specific aggregating factor.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

47: After Clause 6, insert the following new Clause—
“Parents of young offenders(1) The Secretary of State must undertake an assessment of the effectiveness and use by the courts of the following powers in the Sentencing Code—(a) sections 365 to 375 (parenting orders), and(b) sections 380 to 383 (costs, fines and other financial orders where offender aged under 18).(2) The assessment undertaken under subsection (1) must make recommendations on—(a) ways to increase use of the Sentencing Code powers to make parenting and financial orders, and(b) other potential sentencing changes to promote greater parental responsibility in respect of young offenders.(3) The Secretary of State must, within a year of the passing of this Act, lay a copy of the assessment made under this section before Parliament.”Member’s explanatory statement
This new clause would require the Secretary of State to assess the use of the courts’ existing powers to make parenting orders and financial orders to parents of young offenders.

[Lord Keen of Elie (Con)]

My Lords, this amendment would require the Secretary of State to undertake a full assessment of how the courts are using their existing powers to make parenting and financial orders for young offenders. These powers are already available under the Sentencing Code but in practice are used far less than Parliament had originally intended. Indeed, the Ministry of Justice has confirmed that more than 1,000 such orders were made in 2010, yet only 27 have been made in recent years. That is a striking decline, which raises serious concerns about whether important statutory powers designed to support families and address the causes of youth offending are being neglected or overlooked.

The purpose of these orders is not to punish parents but to support them, to help restore discipline and stability in the home and, ultimately, to prevent the next crime before it happens. Through assessing their effectiveness and making recommendations to increase their use, this amendment seeks to strengthen parental responsibility and engagement in the rehabilitation of young offenders. Children are of course among the most vulnerable in our society and it is our responsibility as lawmakers, indeed as parents, and ultimately as adults, to ensure that when young people offend, there is structure, support and the necessary resources in place to prevent them reoffending. I suggest that this amendment is a measured and constructive step towards achieving that aim.

I note that the noble Lord, Lord Jackson, is not in his place, but I will just mention his Amendment 87. The amendment addresses a very different but equally important aspect of youth justice: the question of transparency in cases involving the most serious offending by those under 18 years of age. The amendment would require reporting restrictions to be lifted at the point of sentencing where a young offender received a custodial sentence of four years or more. To receive a custodial sentence of over four years is telling of the crimes committed. I appreciate that anonymity has been a protective safeguard for most children within the justice system, and of course rightly so, but where an offence of such gravity that it warrants a substantial custodial sentence has been committed, there is a strong public interest in transparency and accountability. So I would welcome the Minister’s response not only to my own amendment but to that tabled by the noble Lord.

[Lord Lemos (Lab)]

My Lords, I thank the noble and learned Lord and the noble Lord for raising these important issues. Obviously, the Bill focuses on the adult system, but I am pleased that we have this opportunity to debate these amendments about the youth justice system, about which all of us are concerned. However, our position is that neither of these amendments are necessary.

Amendment 47 would require the Secretary of State to assess the effectiveness of certain orders available when dealing with a child under the age of 18. This includes parenting orders, and costs, fines and other financial orders. I am very happy to acknowledge the importance of these orders, as stressed by the noble and learned Lord, Lord Keen. They are very much part of the toolkit for dealing with youth offending and youth justice and have an important role in supporting greater responsibility for a child’s offending—excuse my voice; the NHS’s work in restoring my mellifluous tones is not quite complete yet. Whether they are used in a particular case is best determined by the court with access to professional advice from the youth offending team. When we were discussing this prior to this Committee tonight, we recognised the importance of youth offending officers having a view on what would be most effective in working with parents who should be doing more.

It is right that the court retains the discretion to determine whether such interventions are well placed to support the child’s rehabilitation—so we are not opposed to that—and that it has access to information on their individual circumstances. However, as the Minister said at Second Reading, we will be reviewing the position on youth sentencing separately in light of the changes that the Bill will introduce in due course, and we will be very happy to return to these important matters then. Therefore, although we do not agree that primary legislation is necessary for a dedicated assessment of these orders, I can confirm to noble Lords that we will consider this matter.

Amendment 87 is in the name of the noble Lord, Lord Jackson of Peterborough, who is not in his place, but the noble and learned Lord, Lord Keen of Elie, has set out the issue. I thank the noble and learned Lord, but let us be clear that the most serious childhood offences which result in longer custodial sentences are dealt with in the Crown Court. Here, it is at the discretion of the independent judge whether to impose restrictions to protect the identity of a child defendant. Reporting restrictions exist to protect vulnerable child victims, witnesses and defendants. They are very important. Being named in the press can obviously have a significant negative impact on the safety, prospects and opportunities of a child. That said, in all cases, judges have discretion to lift reporting restrictions once a child has been convicted, or before, where they are considered unreasonable—for example, in the well-known case of Axel Rudakubana, who was 17 when charged with the Southport murders. The Government’s view is that our existing system strikes the right balance between the fundamental importance of open justice and proportionate safeguards for children. With that in mind, I ask the noble and learned Lord and the noble Lord not to press their amendments.

[Lord Keen of Elie (Con)]

Does the Minister acknowledge that there has been a very striking decline in the use of parenting and financial orders since 2010?

[Lord Lemos (Lab)]

We are conscious of that and we discussed it in our pre-briefing this morning, and we want to find out what that is all about. The important point to make at this stage, without jumping to conclusions, is that we want this to be part of the armoury, but we want youth offending officers to have discretion about what will really work with the parents. Anyway, you have got me on one of my favourite subjects, so I should get off it.

[Lord Keen of Elie (Con)]

I am obliged to the Minister for getting on and then getting off this topic. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Moved by

[Lord Keen of Elie]

48: After Clause 6, insert the following new Clause—
“Child cruelty offences: notification and offender management requirements(1) A person (“relevant offender”) is subject to the notification requirements of subsections (2) and (3) for the period set out in subsection (4) if the relevant offender is convicted of an offence listed in subsection (6).(2) A relevant offender must notify to the police within the three days of the time of their conviction or their release from custody, and annually thereafter, providing —(a) the relevant offender’s date of birth,(b) their national insurance number,(c) their name on the notification date and, where using one or more other names on that date, each of those names,(d) their place of residence on the date of notification,(e) the address of any other premises in the United Kingdom at which, at the time the notification is given, they regularly reside or stay, and(f) any information that may be prescribed in regulations by the Secretary of State.(3) A relevant offender must notify to the police, within the period of three days beginning with the event occurring, about—(a) their use of a name which has not been notified to the police under subsection (2), (b) a change to their place or residence, and(c) any other prescribed change of circumstances as defined in regulations made under this section.(4) The dates of discharge from notification requirements under this section are the same as those set out in Section 88B of the Sexual Offences Act 2003.(5) The information required by subsections (2) and (3), once received, must be—(a) monitored regularly by the police and probation service, and(b) retained for the purposes of offender management.(6) The relevant offences are—(a) causing or allowing the death of a child or vulnerable adult, or allowing them to suffer serious harm (section 5 of the Domestic Violence, Crime and Victims Act 2004),(b) child cruelty, neglect and violence (section 1 of the Children and Young Persons Act 1933),(c) infanticide (section 1 of the Infanticide Act 1938),(d) exposing children whereby life is endangered (section 27 of the Offences Against the Person Act 1861),(e) an offence under sections 4, 18, 20, 21, 22, 23 or 47 of the Offences Against the Person Act 1860, if the victim is under the age of 16,(f) an offence under any of the following provisions of the Female Genital Mutilation Act 2003—(i) female genital mutilation (section 1),(ii) assisting a girl to mutilate her own genitalia (section 2),(iii) assisting a non-UK person to mutilate overseas a girl’s genitalia (section 3), and(g) cruelty to children (section 1 of the Children and Young Persons Act 1933).”Member's explanatory statement
This new clause would create notification requirements for people convicted of child cruelty, analogous to the Sex Offenders Register. Their information and personal details would be kept on record by the police for the purposes of offender management, with the aim of reducing the risk to children from future offences.

[Lord Keen of Elie (Con)]

My Lords, Amendment 48 seeks to establish a notification and offender management requirement clause for criminals convicted of child cruelty offences. For convicted child sex offenders, there already exist notification requirements, whereby those who have abused vulnerable and dependent children in the worst possible way must notify the police of their home address and other relevant details following their release from prison.

I know that the sex offender register is not a perfect system and that monitoring former convicts does not mean that we can control their every action, but it does act as a safeguard. It provides the police with the oversight needed to manage offenders and reduce the risk to victims, and it means that those who commit sex offences cannot just disappear back into the community. There is evidence that it is working, with sex offender reoffending rates having decreased in the past 15 years. Given that overall sexual offences have increased nearly fourfold over that same period, a decrease in reoffences does suggest that this part of the justice system is working. It is reasonable to argue that mandating the keeping of an offender register will have had some part to play in that reduction in the case of those offences.

It is unfortunate that similar provisions do not exist for those convicted of child cruelty offences. The offence is in a sense different, but the principle is largely similar. Child cruelty, like child sexual offences, is heinous, life-altering abuse to some of the most vulnerable members of our society. The only difference at present is that, once released, those guilty of such cruelty offences are not managed once their sentence and probation is over. A person can commit these horrific crimes—causing or allowing the death of a child, neglect and violence to a child or even female genital mutilation in some cases—and, once they have served a period of imprisonment, they are free to slip back into the community unnoticed. There is no centralised way for the police to know who these people are and where they are living.

This is all the more an issue given the fact that, in the majority of child cruelty cases, the offender very often has had parental responsibility for the victim. This means that they will often have connections to the child’s current guardian and in many cases to other family members with connections to the child. There is, therefore, the very heightened risk that they will be able to secure access to a child in these situations, yet there is no means of oversight or management of these people.

Amendment 48 seeks to correct this anomaly by introducing something analogous to the sex offender register. It would require those convicted of child cruelty offences to notify the police of their details following their release. They would need to share their home address, any other places of residence and any other name that they might choose to use. It would provide the police and probation services with the necessary information to identify individuals who might continue to pose a threat within a family community. It would give child victims some additional safeguard from the risk posed by such convicted offenders. It would also act as a deterrent to these offenders, just as entry in the child sex offenders register has done.

The child protection system should exist to save children from abusive circumstances and give them a measure of safety. This simple step of introducing a register would allow some additional protection for these victims and ensure a greater public awareness of the risks that such convicted persons would pose. I beg to move.

[Lord Timpson (Lab)]

My Lords, I am extremely grateful to the noble and learned Lord, Lord Keen, for raising this matter. I pay tribute to Helen Grant MP and her constituent, Paula Hudgell. They have campaigned tirelessly and movingly on this important issue. Earlier this week, the Deputy Prime Minister had the great honour of meeting Paula and Helen to hear the Hudgells’ story and learn more about their campaign. This Government are taking decisive action to protect our children from those who would commit abhorrent crimes against them.

Currently, under Sarah’s law, the police can and do proactively disclose information regarding offenders to members of the public when they believe that a child is at risk of serious harm. For example, if the police become aware of an adult who has ever had a conviction, caution or charge for child abuse having unsupervised access to a child, the police can and will disclose this to the person best able to protect that child—usually their parent, carer or guardian. Sarah’s law also enables members of the public to make an application to the police for this information if they are worried about child protection.

In the Crime and Policing Bill, this Government are going further. We are strengthening Sarah’s law by placing it on a statutory footing. The clauses in that Bill will mean that chief police officers will have a statutory duty to follow the Secretary of State’s guidance on Sarah’s law. In practice, this will reinforce the police’s responsibility to make disclosures whenever that is necessary to protect children. We have also committed over £2 billion to support the roll out of the families first partnership programme to improve the early identification of risks to children and to take appropriate action.

The Children’s Wellbeing and Schools Bill will establish multi-agency child protection teams in every area. Additionally, we are placing a new duty on safeguarding partners to include education and childcare settings in their multi-agency safeguarding arrangements. We want to ensure that every opportunity is taken to keep our children safe. We are not standing still on this issue. We are exploring the best way to close the gap that Paula has rightly identified. This is why I and Ministers in the Home Office have instructed our officials to explore options for tracking offenders and offences involving child cruelty. I ask the noble and learned Lord to withdraw this amendment.

[Lord Keen of Elie (Con)]

I thank the Minister. In the light of his undertaking that the Government are pursuing this matter—vigorously, I take it—and intending to produce something, whether they term it a register or otherwise, so that the police can not only disclose information but access information, which is a more critical element here, at this point I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

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Moved by

[Lord Keen of Elie]

49: Clause 11, page 26, line 7, at end insert—
“(2) After paragraph 4(1) of Schedule 9 to the Sentencing Code insert—“(1A) The minimum number of days on which the offender may be instructed to participate in activities must be specified in the relevant order.”” Member’s explanatory statement
This amendment replaces the maximum-days requirement with a minimum number of days for rehabilitation activity requirements, ensuring that there is a minimum threshold of activity that offenders must complete.

[Lord Keen of Elie (Con)]

My Lords, repeated reference has already been made to the independence of the judiciary and to the need to allow the judiciary full discretion in the matter of sentencing, but the provisions in the Bill at Clauses 11 and 12 erode these principles and put the whole issue at risk. The requirements in these clauses will remove a degree of judicial discretion, transferring certain sentencing powers from the courts to the Probation Service, and ultimately, of course, to the Government.

We on these Benches believe that the judiciary, who are specifically trained and appointed, and not probation officers, are best equipped to make decisions on sentencing. Clause 11, as drafted, removes the requirement to specify the maximum number of activity days to be undertaken as part of a community order or a suspended sentence order. The Government’s intention appears to be to create flexibility for probation services, so that they can gauge and tailor the number of days that offenders must complete.

Of course, we appreciate that, at present, there is a discrepancy between the maximum days of activity ordered by the courts and the number completed in reality. But nowhere in the Bill does there appear to be, once the initial sentence order and length are passed, judicial oversight of the number of days that probation officers may then set; nor does there appear to be any minimum threshold or expectation of participation specified in the Bill.

Putting this conferral of sentencing power on to the Probation Service creates an obvious misalignment of, among other things, incentives. Overworked probation officers, already contending with quite unmanageable case loads, are liable to be motivated not only by what is right for rehabilitation and public safety but by what is administratively possible. The unavoidable consequence is that the number of activity days ordered will be determined by capacity pressures within the Probation Service rather than by the rehabilitation requirements of individual offenders. The clause, as currently drafted, could enable an offender to engage in little or no meaningful rehabilitative activity whatever. Such an outcome would, of course, be a betrayal of victims and simply an illusion of justice.

On the other hand, the judiciary are trained and entrusted to assess evidence, consider proportionality, and understand risk and the need to balance public protection with rehabilitations. It is in these circumstances that we give notice of our intention to oppose Clauses 11 and 12 standing part of the Bill.

Amendments 49 and 50 seek to remedy the issue of probation officers operating in a quasi-judicial capacity. Amendment 49 would ensure that the court specifies a minimum number of days required under probation activity requirement. This would mean that, rather than setting a maximum threshold, which is seldom met in practice, there would be no ambiguity for officers or offenders over the number of days that must be completed. This is a simple and practical proposal that has the effect of dealing with the impact of Clauses 11 and 12.

Amendment 50 would clarify in statute that, where activity days are to be set for offenders, the number of days must always be set by the court itself. Without these amendments, decisions relating to punishment will, effectively, be delegated from the court to the Probation Service, rather than being determined at the point of sentence by the judiciary, and we believe it is essential that it should remain in the hands of the judiciary.

I turn briefly to Amendments 125 and 126, which concern early termination of community orders and suspended sentences. These amendments would provide that a court may not terminate such orders early, unless a specified minimum proportion of rehabilitation days has actually been completed. This would prevent the unacceptable scenario in which an offender could be released from requirements without having undertaken the substance of the sentence that was originally imposed.

Again, at present, there are no checks or balances under the Bill to ensure that this is not the case. These amendments would ensure proper accountability and preserve the authority of the sentencing decisions made by the court, and they would also provide probation officers with a degree of flexibility. I hope that the Government recognise the constructive nature of these amendments.

We all recognise the intense pressure under which prisons and probation services currently operate, but the response to systemic problems cannot be to weaken judicial powers or diminish meaningful sentencing. Offenders must not be permitted to slip through the cracks in a system that is stretched to its limits. It is our duty in Parliament to reinforce judicial authority, not to erode it. It is for these reasons that I urge the Government to reconsider the implications of Clauses 11 and 12, and to recognise the importance of the amendments that have been tabled. Judicial sentencing power must remain with the courts, and I hope that the Government will listen to these concerns and engage constructively on this issue.

[Lord Beith (LD)]

My Lords, the noble and learned Lord, Lord Keen of Elie, has raised an interesting and very debatable question, which is what the role of the judiciary should be in allotting rehabilitation time and activity and what the role of the probation officer can reasonably be. In theory, I should be with him, because I am always anxious to protect the independence and autonomy of the judiciary, but I look at our court system, and what is feasible, and I look at the detailed work that would be necessary, which probation officers are trained and equipped for—not necessarily resources-equipped but equipped in terms of their training—and I am unconvinced that it would be a good idea to move away from what Clause 11 and 12 do towards a larger role for the judiciary.

I say that having gone, decades ago, to look at the court system in Texas, as the Minister himself has done more recently, and having seen proactive courts, with the judge handing out details of rehabilitation requirements and looking at people as individuals, and the applause ringing around the court when the judge commended the offender who had fulfilled the requirement, and the sight of one offender who had not fulfilled the requirement being taken away by the state marshal.

The whole set-up was very interesting, but very difficult to graft into our system without enlarging the judiciary substantially, giving it time to do this kind of thing. We are probably better to build on the foundation of the Probation Service, despite the fact that it went through such a terrible time with the privatisation process and is still well below the level it needs to be in terms of numbers and training. The Bill provides a more reliable route, even though my instinct is to be on the side of protecting the autonomy of the judiciary. This is a job that probation officers are probably in a better position to do than our hard-pressed judiciary.

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With that in mind, I ask the noble and learned Lord to withdraw his amendment. We can, however, return to this on Report if he is still not content with my response. I am also happy to talk to him before then if he would find it helpful.

[Lord Keen of Elie (Con)]

I thank the Minister for his answer and the noble Lord, Lord Beith, for his contribution. I fear that the Minister is not properly distinguishing between issues of rehabilitation and issues of sentencing. There is a matter of principle that has to be addressed in this context, and there is a risk that the Bill in its present form will turn sentencing into some form of administrative exercise performed by the Probation Service rather than by the court.

I believe we will have to return to this on Report, but I look forward to discussing the matter further with the Minister. At this time, I withdraw my amendment.

Amendment 49 withdrawn.