The last King’s Speech of this parliament, delivered on Tuesday 7 November, included several Bills which will significantly reform sentencing in England and Wales. What this suggests is that the government see criminal justice as a vital issue at the next general election. The major reforms are found in a Criminal Justice Bill, a Sentencing Bill and a Victims and Prisoners Bill. Four other Bills contain further sentencing provisions. This post will outline the key provisions of the major Bills before mention will be made of the four remaining Bills.
The Criminal Justice Bill
The most notable provision in the Criminal Justice Bill is the introduction of a power to compel defendants to attend their sentencing hearing. The Sentencing Academy has published a blog by Dr Gabrielle Watson considering the current law and the likely impact that compelling defendants to attend their hearing may have (available here: https://www.sentencingacademy.org.uk/refusal-to-attend-sentencing/). There have been high-profile cases, an example being when Lucy Letby was found guilty of murdering several babies in her care, where public disquiet followed the defendant’s non-appearance at sentencing. The judge will retain discretion in determining whether to exercise this power; there are evident risks of violence to court staff and disruption in court if it was used.
Two new statutory aggravating factors will be introduced: involvement in a grooming gang; and murdering partners at the end of a relationship. The maximum penalty for the sale of dangerous weapons to under 18s will be increased. Powers will also be established to transfer prisoners in and out of England and Wales to serve their sentence abroad.
The Sentencing Bill
Of all the sentencing reforms in the King’s Speech, potentially the most significant is that a presumption will be introduced in favour of a suspended sentence for custodial sentences of twelve months or fewer. Scotland (which does not have suspended sentences) introduced such a presumption and the government have shown sporadic interest, particularly when Rory Stewart was prison minister. The Government justify introducing the presumption on the basis that the reconviction rates for those serving short custodial sentences have high reconviction rates. Instead of serving their sentences in prison, offenders will serve their sentence in the community on requirements imposed by the court. It is important to note that, as in Scotland, this is a presumption: judges will retain discretion to impose immediate custody, for example where an offender poses a risk to public safety.
Recent analysis by the Sentencing Academy has explored the rise in the prison population over the past 20 years (available here: https://www.sentencingacademy.org.uk/wp-content/uploads/2023/10/Sentencing-Trends-in-England-and-Wales-2002-2022.pdf). It was found that this can largely be accounted for by marked increases in sentence length for indictable and triable either way offences. These offences commonly attract sentences in excess of 12 months’ imprisonment. Future analysis by the Academy will monitor the effect of the presumption on the prison population.
Other provisions relate to those convicted of the most serious offences. Rapists and those convicted of other serious sexual offences will serve their full determinate sentence in custody. With regards to indeterminate sentences, courts will be mandated to impose Whole Life Orders in cases where a Whole Life Order is currently the starting point, and murder with sexual or sadistic conduct, unless there are exceptional circumstances.
Finally, home detention curfews will be extended to suitable offenders serving sentences of four years or more, up to a maximum of 6 months prior to their release date. Existing exclusions which apply to violent, sexual and terrorism offenders, and those convicted of domestic abuse will remain.
Victims and Prisoners Bill
A recent Sentencing Academy paper outlined the far-reaching changes that have been made to parole in recent years (available here: https://www.sentencingacademy.org.uk/wp-content/uploads/2023/10/Parole-in-England-and-Wales-Recent-Reforms-and-Proposals-for-the-Future.pdf). This Bill will implement reforms heralded in A Root and Branch Review of the Parole System – The Future of the Parole System (available here: https://assets.publishing.service.gov.uk/media/624438e8e90e075f1120586a/root-branch-review-parole-system.pdf).
Based on a perception that the courts are misinterpreting the statutory test for release found in section 28 of the Crime (Sentences) Act 1997, the Bill will clarify that minimising risk and protecting the public are the sole considerations in determining whether a prisoner should be released. More significantly, ministerial oversight is introduced for ‘top-tier’ offenders convicted of the most serious offences such as murder, rape, certain terrorist offences and causing or allowing a child to die. In such cases, a preliminary decision to release maybe subject to additional ministerial scrutiny so that there is a review of whether the prisoner is safe to release. The Parole Board make decisions about ‘top-tier’ offenders frequently and it is clear that the power will have to be used selectively. The impetus for the reform is the outrage following a decision to release John Worboys, a serial sex offender, on licence. (The decision was subsequently quashed by the High Court.)
Four other Bills contain new sanctioning provisions:
Digital Markets, Competition and Consumer’s Bill
The Competition and Markets Authority will be granted greater powers to sanction companies that refuse to comply with investigations and remedies.
Economic Activities of Public Bodies (Overseas Matters) Bill
Monetary penalties will be able to be imposed on public bodies who pursue their own boycotts, divestment, or sanctions campaigns against foreign countries.
Terrorism (Protection of Premises) Bill
The Bill places requirements on ‘enhanced duty premises’ for qualifying public events. Failure to comply with the requirements, can result in a maximum fixed penalty of the higher of £18 million or 5% of worldwide revenue.
Tobacco and Vapes Bill
Strengthened powers will be introduced to impose on the spot fines to retailers who sell tobacco products or vapes to underage people.
As is often the case with criminal justice legislation, it can be difficult to discern an overarching direction. However, in this King’s Speech there is a theme. The main reforms all concern custodial sentencing. The presumption against imposing custodial sentences of twelve months or fewer has the potential to reduce the prison population by diverting those guilty of comparatively minor offences. At the same time, reforms to parole and the release dates of those convicted of serious sexual offences will have the effect of increasing the time such prisoners spend incarcerated. The latter will offset the former to some extent if the drive is to reduce the prison population.
A second observation is that some of the measures, particularly those relating to compelling defendants to attend sentencing hearings and those relating to ministerial involvement after a decision has been taken to release a ‘top-tier’ offender, have been driven by reactions to high-profile cases. This is not uncommon in policy making, but it will be important to monitor the impact of such measures. Future research by the Sentencing Academy will do so.