My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on
victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.
As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.
We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.
Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.
Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.
However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into
account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.
Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.
We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.
Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment would expand the circumstances where a whole-life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.
As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103
makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.
We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.
Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.
However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.
Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.
Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than
amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.
For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.