Sir Mike Penning leads a debate on the unduly lenient sentences scheme

6th December 2017

Sir Mike Penning leads a debate on the unduly lenient sentences scheme, and calls for changes to the law that requires requests to be submitted within 28 days and also for the number of offences considered under the scheme to be widened. 

That this House has considered unduly lenient sentences.

It is a pleasure to have this debate under your chairmanship, Mr Davies. The debate can be no surprise to the Solicitor General or to the Ministry of Justice. We have an hour, so I will keep to a couple of points that I have been making for the nearly 12 years I have been in the House, and I will leave it to other colleagues to raise other issues. I have purposely worded the motion so as to allow as many colleagues as possible to join the debate. The subject is not a controversy or party political in any shape or form. Some of this could have been addressed under the previous Labour Administration. Indeed, they tried to address it, as did the coalition; I certainly tried to address it when I was the Minister with responsibility for police, justice and, in particular, victims.

I come at the subject from the point of view of the victim. If the criminal justice system is to do what it says on the tin, it has to side with the victim. What worries me is that parts of court sentencing make victims feel, quite rightly, that the system is not on their side. There are two obvious anomalies. Anyone who has been found guilty has the right to appeal against the severity of their sentence. There is no argument about that. In a civilised society, that is right and there is a procedure for it.

In our courts, however, the procedure for victims, a victim’s representative or someone such as their MP to appeal against the undue leniency of a sentence is quite perverse. The guidance on the Government’s website, under “Ask for a Crown Court sentence to be reviewed”, is vague:

“Only certain types of case can be reviewed, including…murder…rape…robbery…some child sex crimes and child cruelty…some serious fraud…some serious drug crimes…some terror-related offences”,

and—without the word “some” this time—

“crimes committed because of the victim’s race or religion”.

The word “some” leaves things open in anyone’s mind, making it enormously difficult for the public we represent to understand what can and cannot be appealed against.

When I was a Transport Minister, I noticed the classic example of death by dangerous driving. Death destroys a family, and if drink and drugs are involved in the case, the sentence is appealable. A sentence for death by careless driving, however, is not. Although really serious offences are tried in the juvenile courts, my understanding is that it is not possible to appeal against undue leniency. If I am wrong, I am sure the Solicitor General will tell me.

I congratulate my right hon. Friend on securing this important debate. Is he aware that more than 40% of sentences referred to the Attorney General are refused simply because they fall outside the scheme, and that has included at least one case of rape from the youth courts? Does he agree that that explains the clamour from the public to widen the scope of the scheme?

My hon. Friend hits the nail on the head. I congratulate him on the work he has done to address the law in this area. If we work together across the House, we can address what he wanted his Bill to do with regard to other anomalies. When we talk about the juvenile courts, we think about really young people, but I could have been prosecuted in a juvenile court—had I committed an offence—while I was serving in the Army, which I joined when I was 16. It seems to me that we are removing a whole plethora of cases—with victims who still desperately need to feel that they have been heard and listened to—simply because they were tried in a certain type of court or involved a certain type of offence.

I pay tribute to my right hon. Friend for securing the debate. He has mentioned his time as a Transport Minister. I completely agree that one should do everything one can to support victims, but at the same time one should prevent people from becoming victims in the first place. Does he agree that, in certain circumstances—such as sentencing for driving while disqualified or drink driving, for which only a six-month custodial sentence can be given by the lower courts—we need not only that review of unduly lenient sentences, but a review of sentencing in the wider context, including for such transport matters?

Absolutely. Colleagues across the House will bring up such anomalies during this debate. I am enormously proud of the very few drug-related driving offences that were prosecuted—I had the honour of being the Transport Minister when we introduced the drugalyser at the roadside—as well as of the first prosecutions that took place, although that took nearly four years and I was in the Ministry of Justice by then. But the sentencing also needs to be a deterrent. People need to realise that when they commit certain offences, the penalty will fit the crime. If people go before magistrates courts—I think this is what my hon. Friend was talking about—knowing that they will get only six months, they will not opt for trial by jury or to go up through the system to be tried before a judge in the Crown Court. I agree—though this is not something I will concentrate on today—that we need a much wider debate on the types of sentencing to which I am referring.

Before I became a Minister, I did try—I appealed against the leniency of sentences, particularly those to do with paedophiles. I had real concern about some of the sentences for paedophiles who not only did not plead guilty, but did not think that they had done anything wrong, and I have always had concerns about racially aggravated offences. I think such offences are an abhorrence to our society.

I appealed successfully. One of my constituents was murdered by a man called McLoughlin, who was out of prison on day release. He attacked my constituent’s neighbour and my constituent did what I hope I would do, which was defend their neighbour, but they were murdered. McLoughlin was found guilty in the courts and given a sentence of something like 20 years—don’t quote me on that. We all knew what would happen—it would be three years or something. Nor was that the first offence, because he had murdered before. I appealed to the then Labour Attorney General that the sentence was unduly lenient. He should have got a much more severe sentence, or at the very least an indeterminate one.

In court the judge had said, “I cannot give an indeterminate sentence, because the European courts will strike it down.” That was like a red rag to a bull. The sentence a judge in our courts gives has nothing to do with a European court. We subsequently won the appeal—the Attorney General agreed with me, as did, eventually, the Court of Appeal. McLoughlin was eventually given the right sentence, which was an indeterminate one. Hopefully, he will spend the rest of his life in prison. That will never bring back my constituents’ husband and father, but the original sentence was wrong.

When I became a Minister, in particular for policing in the Ministry of Justice, I kept asking: why are we not addressing those anomalies in the law? It is fundamentally unfair that victims do not have the same rights as the perpetrators. The Ministry of Justice is not represented in the Chamber today, but I know that we would briefed that the cost implications of having more people in our prisons are disproportionate.

I am afraid that that is tosh. I have seen no physical evidence for that—not in the whole two and a half years I was in the Department, and I asked for it several times. The Attorney General and I debated it around the ministerial table and with the Prime Minister, who was then the Home Secretary. We never got to the bottom of the great opposition in the Ministry of Justice to more people going to appeal. In actual fact, from the other end of the telescope it looks like fewer people go to appeal because they do not all opt to go the Crown Court, opting instead for their defence to be heard by their peers in a magistrates court. There is no evidence and we do not know exactly what is going on.

Surely one solution is to ensure that the sentencing is correct at the beginning. The Select Committee on Justice is a statutory consultee of the Sentencing Council. It has to give opinions on the sentencing proposed in the council. Does my right hon. Friend agree that the Committee should take a much tougher line?

My hon. Friend is a member of that Committee and it should take a much tougher line and a much closer look at the issue of fairness or unfairness. I may be wrong—I may be banging my head against a brick wall. Perhaps victims do not want their voices heard. Perhaps they do not want to feel that they are equal in the courts.

In the past few weeks I have taken up the biggest anomaly, which really upsets me. I appealed recently against the sentences given to a group of gentlemen—I use that word advisedly—who were involved in the sex gangs in Newcastle. I can say that because they have been convicted. When I saw the sentence, I was very surprised that the judge had not taken into consideration that the crimes were obviously racially motivated. All the girls but one, I think, were white, and nearly all the perpetrators were of Asian extraction. That is not casting aspersions on the whole community; they are simply the facts.

I wrote to the Attorney General, to ask whether he would kindly look into this, whether he agreed that the sentences were unduly lenient and, if so, whether he could refer the issue to the appeal court. To my astonishment, a very polite letter came back from the Attorney General that said, “I’m really sorry; I cannot look into this, because you are outside the 28-day limit. You have to appeal within 28 days to the Attorney General.” I said, “It was only in the papers the day before yesterday”. “Ah”, said the Attorney General, because the judge had put a restriction on reporting the sentencing. The sentence had actually taken place about two and half months beforehand. The victims did not know that and neither did we. No one knew, so it was not possible to appeal against the leniency.

From conversations that I have had with the Solicitor General, I know that he will come up with some ideas. The situation, however, is an insult to those victims whom we are supposed to represent, not just here but in our courts, so that justice is seen to be done. I ask the Solicitor General: is there an answer? A pretty simple answer would be that, if the judge puts a restriction on court reporting, the Attorney General should be informed of the sentence and be able to look into it. Even though that is a step in the right direction, the problem is that the victims do not know, so their legal representatives are not able to appeal on their behalf, and neither are we. We need to do something about that. I have previously discussed with the Attorney General the issue of how to get justice for victims and I got quite an interesting response. It was very different from that which I received form the Ministry of Justice. The simplest way for victims to get justice would be to make it possible to appeal against unduly lenient sentences in the Crown court. That option is available to the perpetrators—those found guilty of a crime have those rights—so why is it not available for victims?

Will the right hon Gentleman give way?

I will just say one last thing and then I will give way, as I am conscious of the time. I am absolutely passionate about this issue. I believe that we have the greatest criminal justice system in the world, but it needs to learn from what it is doing wrong. This is one example of that.

I thank the right hon. Gentleman for giving way and I congratulate him on securing the debate. Does he agree that the 28-day limit is in all probability against the spirit in which it was introduced? Does he agree that a way around that would be that any time limit, be it 28 days or more, should be applicable from the time when any relative or victim becomes aware of the leniency of the sentence given by the court?

I completely agree with the hon. Gentleman. The appeal system states that it is not just the victim or their MP who has the right to say that they think there is an anomaly and that something has gone wrong. Anybody can appeal. The only way that they can do that is if the 28-day period starts on the day that the sentence becomes public. That is the only way it can work. We can consider other ways to do that, but I think that is the only way. It should be possible to appeal against all unduly lenient Crown court sentences. I have not seen any evidence of exactly what that would cost. We all understand the issue of cost, but it is important that the justice system is fair.The 28-day period has to be addressed. There is something fundamentally wrong. There are cases where people have been unwell following the loss of a loved one and have not had the opportunity to appeal in time. The judges have a very limited power and once the 28 days are over, the Attorney General cannot do anything. That has to change.

I will get lots of letters tomorrow morning saying that I should have brought up lots of different subjects. One particular subject I want to raise is cruelty to animals, which is fundamentally wrong. I think that sentencing for cruelty to animals is really wrong and it needs to be addressed. There are human victims of that crime, as well as the animals subjected to cruelty. There are lots of other issues, too. I wanted this debate to concentrate specifically on the victim, and I hope that I have done that.

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