My Lords, I thank the noble and learned Lord, Lord Brown, for taking on this brief. I also take this opportunity to wish the noble and learned Lord, Lord Woolf, a speedy recovery from his operation.
The amendments give us the opportunity to discuss the important concerns of the Joint Committee on Human Rights in relation to the maximum penalty for ancillary offences under Part 2 of the Bill. Noble Lords referred to the fact the JCHR raised this matter in its letter of 29 June, to which my predecessor replied on 8 July.
I understand the concern that the penalty for ancillary offences should not be disproportionate in any particular case. The Government have carefully considered the amendment but we have concluded that we should retain a maximum penalty of 30 years for ancillary offences. This is primarily for reasons of consistency with existing UK legislation: namely, the International Criminal Court Act 2001 and its Scottish equivalent. That legislation provides, as has been said, for a maximum penalty of 30 years for the offence of committing a war crime, and provides expressly that the same maximum penalty applies in relation to ancillary offences. I think that that answers the noble and learned Lord’s question about why it should not be 40 years or life. It is the same as the existing legislation.
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The noble and learned Lord also mentioned that under the International Criminal Court Act 2001, “war crimes” include certain crimes concerning cultural property. He read out the wording—I will not repeat it now—that it is a war crime to direct attacks against buildings, et cetera. Therefore, in our view there is a clear parallel and, indeed, overlap between that legislation and the Bill. The same factual circumstances could, in some cases, constitute an ancillary offence under either piece of legislation. It is therefore desirable that the potential penalty is the same. For these reasons, we think it is appropriate for the Bill to follow the precedent of the International Criminal Court Act 2001 and its Scottish equivalent.
In any event, it is important that the maximum penalty reflects the degree of seriousness with which the UK views breaches of the Second Protocol. At Second Reading, the noble Lord, Lord Foster of Bath, said that the 30-year maximum sentence shows,
“how serious we are about protecting cultural property in times of armed conflict”.—[Official Report, 6/6/16; col. 588.]
This sentiment was supported by my noble friend Lord Renfrew and the noble Baroness, Lady Young of Hornsey, and I agree. In my view, the same principle applies equally to ancillary offences.
However, it is important to note that 30 years’ imprisonment is a maximum penalty. In practice, the penalty may be a much shorter sentence or even a fine.
It will be for the courts to consider all the circumstances and determine the appropriate sentence in any particular case. For example, in the al-Mahdi case about the destruction of cultural objects in Timbuktu, which was recently before the International Criminal Court, the prosecution called for a nine-year to 14-year sentence for violations under the Rome statute.
There are many scenarios in which an offence under Clause 3 may be committed and, similarly, many scenarios in which there might be an ancillary offence. I do not think that it can be said that an ancillary offence is necessarily deserving of a lesser penalty than the principal offence. The appropriate penalty depends on the circumstances, not on whether the offence is the principal offence or an ancillary one. It is the Government’s view that a maximum penalty of 30 years should be available in respect of both the principal offence and related ancillary offences, and that it should be left to the courts to determine the appropriate penalty in any particular case. We think that the courts are the best place for that difficult decision to be made.
I cannot help reflecting that on my first outing at the Dispatch Box as a Whip, during the passage of the Criminal Justice and Courts Bill, we spent what seemed like hours discussing with noble Lords and noble and learned Lords how we were restricting judicial discretion and here I am, two years later, arguing that judicial discretion is very important and should be retained in this case.
The noble Lord, Lord Foster of Bath, asked whether the Sentencing Council would be issuing guidelines. I understand that the council normally waits for sentencing practice to develop before considering guidelines, rather than issuing them on the creation of a new offence. We think that prosecutions under the Bill are likely to be rare, so I do not anticipate guidelines being developed in the foreseeable future.
I hope I have reassured the noble and learned Lord and others that the penalty for ancillary offences has been appropriately considered, and that he will feel able to withdraw his amendment.