Policy paper

Letter from Home Secretary and Lord Chancellor following Second Reading

Updated 29 June 2023

This was published under the 2019 to 2022 Johnson Conservative government

The Right Honourable Robert Buckland QC MP Lord Chancellor & Secretary of State for Justice

The Right Honourable Priti Patel MP Home Secretary

Rt Hon Nick Thomas-Symonds MP and Rt Hon David Lammy MP House of Commons London SW1A 0PW 13 May 2021

Dear Nick and David,

Police, Crime, Sentencing and Courts Bill

We are extremely grateful to you and all the other members who spoke at Second Reading on 15 and 16 March to address the important issues dealt with in this landmark Bill. This Bill presents a once in a generation opportunity to transform the criminal justice system and protect the public, the police and other emergency workers. The government firmly believes that the measures in the Bill go a significant way in achieving this, but it is right that they should be properly debated and scrutinised by the House as the Bill progresses and we look forward to discussing again at Committee. Before it commences, we thought that it would be helpful to set out the government’s position on some of the topics raised at Second Reading.

Supporting victims and preventing violence

We remain committed to supporting victims and preventing violence. Following the tragic death of Sarah Everard, the Prime Minister chaired a Criminal Justice Taskforce meeting in March, where he set out the immediate steps the government is taking to provide further reassurance. This includes a commitment to consult on the government’s intended Victims’ Law this summer and further funding to victim and witness support services.

In 2021-22, we will provide just under £151m for victim and witness support services. This includes an extra £51m to increase support for rape and domestic abuse victims, building on the emergency funding from this financial year to help domestic abuse and sexual violence services meet Covid-driven demand. This compares to a total budget of £48.5m in 2010-11.

• £27m will go to creating more than 700 new posts for Independent Sexual Violence and Domestic Abuse Advisers. Research shows if a victim is supported, they are around 50% more likely to stay engaged in the criminal justice system.
• £20.7m for local, community-based sexual violence and domestic abuse services, helping to reduce the amount of time survivors have to wait for support.
• £2m for smaller specialist organisations helping BAME, LGBTQ+ or disabled victims.
• £1.3m for remote and online services – allowing more victims to access support while at home. £800k of this will go to Finding Legal Options for Women Survivors (FLOWS), a digital tool that helps victims of domestic abuse to apply for emergency protection from the courts.

Police and Crime Commissioners will receive £68m from this fund this year to commission support services based on local need.

The new Victims’ Code also came into force on 1 April 2021. This provides victims with a clearer set of rights and will help to ensure that these rights are recognised at every stage of the justice system. The revised Code provides a strong foundation to progress our work on a Victims’ Law. We propose to use the Law to guarantee these new rights and ensure that victims receive them by holding agencies to account for delivery, as stated above, we will consult on the full details of the Law in the summer.

In recognition of increased demand, the Rape and Sexual Abuse Support Fund has been extended for a further year, extending the funding provided to these services to four years (2019-2023). This will help to provide services with the stability they need to recover from the pandemic. We will continue to work closely with them to monitor demand.

Although the number of prosecutions has decreased, over the last decade the average custodial sentence length for rape offences where a victim is over 16 has increased by 39% (31 months). In addition to ensuring that victims have access to the support they need, we are also looking at what more we can do address the concerning decline in the numbers of rape and serious sexual offences reaching the courts and charges against offenders. As you know, we launched an end-to-end review of the criminal justice response to rape and serious sexual offences in March 2019 to look at what more we could do across the system to support rape victims and improve the way rape cases are handled by all criminal justice partners. We intend to publish the findings and actions of the End-to-End Rape Review later this spring.

We will also be publishing a new cross-Government Tackling Violence Against Women and Girls (VAWG) Strategy later this year which will help to better target perpetrators and support victims of crimes which disproportionately affect women and girls. To inform the new strategy, we launched a Call for Evidence on 10 December 2020, inviting responses from the public, victims, their friends, family and colleagues as well as victim support organisations, frontline professionals, academics, and others. Following the tragic case of Sarah Everard and subsequent outpour of stories and experiences of women who have faced violence or harassment, I (Home Secretary) decided to reopen the Call for Evidence on Friday 12 March, for a two-week period. We are pleased that at the close of the Call for Evidence a truly inspiring 180,000 responses have been received and we are considering these carefully as we develop the new Strategy.

This summer, following the VAWG strategy, we will publish a dedicated complementary Domestic Abuse Strategy that will go beyond the implementation of the Domestic Abuse Act to help transform our response to domestic abuse; to prevent offending, protect victims and ensure they have the support they need. As part of our approach, we will continue to recognise that domestic abuse is a form of VAWG.

But that is only part of the action the government is taking. We are also more than doubling funding for Safer Streets scheme neighbourhood measures to £45m this year. That funding will deliver real and tangible outcomes for communities across England and Wales and will be used to invest in proven measures that prevent crime. This includes:

• improving street lighting;
• increased CCTV coverage so people think twice before committing a crime and can be identified and brought to justice quicker if required; and
• the installation of locked gates onto alleyways that prevent criminals operating in these areas.

The funding will also be used to train community wardens, deliver local crime prevention advice to residents and establish Neighbourhood Watch schemes.

As we have shown with the Domestic Abuse Act, where legislation is needed, we are ready to act and the Police, Crime, Sentencing and Courts Bill also includes a number of significant measures to protect the public and give victims confidence that justice has been served.

We have been clear that violent and sexual offenders must serve sentences that reflect the severity of their crimes. Last year we passed legislation to extend the automatic release point to two-thirds of the sentence for serious violent and sexual offenders sentenced to a standard determinate sentence (SDS) of 7 years or more. This Bill will extend this change to a further cohort of offenders. Those sentenced to an SDS between 4 – 7 years for certain sexual or violent offences (where that offence attracts a maximum penalty of life), which includes rape, will serve two-thirds of their sentence in custody instead of half. This Bill will also change the way that discretionary life sentence tariffs are calculated, including for rape, so that the tariff length (the minimum period that must be spent in prison) is based on two-thirds of an equivalent determinate sentence, instead of half as under the current provisions.

This Bill will also allow the piloting of a problem-solving court approach for domestic abuse perpetrators as we believe a more innovative and intensive approach is needed to address the underlying behaviour of domestic abuse perpetrators. One of the aims of the problem-solving approach is to tackle the underlying cause of the offending behaviour and harmful attitudes towards women by enhancing the level of interventions within the community focusing on fostering healthy relationships, safeguarding victims and strengthening the direct relationship between the court and the offender. Their inclusion in the pilots would reinforce our recent efforts to tackle this perennial and important issue through the Domestic Abuse Act and the development of an Integrated Domestic Abuse Court pilot.

Other measures in the Bill will reform pre-charge bail to better protect vulnerable victims and witnesses, place on a statutory footing the arrangements governing the extraction of information from digital devices to better protect the privacy of victims of crime, and further strengthen the management of sex offenders and those who pose a risk, including by enabling positive obligations and to be imposed on those who pose a risk of sexual harm through Sexual Harm Prevention Orders and Sexual Risk Orders.

Assaults against retail workers

A number of members called for measures to create a new aggravated assault offence to provide additional protection for certain groups, such as retail workers, similar to that which exists for emergency workers. Emergency workers operate in what can sometimes be life and death situations to protect the public and it is in this context that the law recognises them for special protection. Of course, everyone has the right to feel safe at work and this government recognises the important role that retail workers play in our society and the importance of ensuring they have a safe working environment. The law already provides a wide range of offences from common assault to attempted murder, with significant penalties to protect everyone, including shop workers.

Furthermore, the Home Office concluded a call for evidence on violence and abuse towards retail workers, the findings of which were published in July 2020. This was a first step in developing a better understanding of the problem to help inform the development of an effective response to abuse and assaults against retail workers. The government is working with the National Retail Crime Steering Group to help progress solutions in this area. In addition, the independent Sentencing Council’s sentencing guidelines for assault offences require courts to treat the fact that an offence was committed against those working in the public sector or providing a service to the public as an aggravating factor, making the offence more serious. This will be reflected in sentencing decisions.

We do not want to dilute the impact of protections for emergency workers whilst they seek to enforce the law or save lives. However, if such an offence were to be created for shop workers, there will undoubtedly be calls for the same protections to be introduced for other groups of workers, for example security staff.

Pre-Charge Bail

David Amess raised concerns that the issue of released under investigation (RUI) was not raised in this Bill. The government shares his concerns around the increased use of RUI following the 2017 reforms and the impact this has had on both suspects and victims. There is agreement across the board that this process is not fit for purpose and should not be used where it is clear that either bail or no further action would be more appropriate in all the circumstances. In particular, we have concerns around the lack of protection for victims which RUI affords – including in cases like that of Kay Richardson.

In order to deal with the decrease in the use of pre-charge bail and the increase in the use of RUI the government is removing the perceived presumption against pre-charge bail. Combined with a set of risk factors to be considered, this change will ensure that police are releasing on pre-charge bail where it is necessary and proportionate.

While RUI is not explicitly mentioned within the Bill, this is because it is a non-legislative process. Following extensive stakeholder engagement including legal advice, it has become clear that we cannot do away with the process altogether as there are a few, limited circumstances in which RUI may be the most appropriate option. Instead, we are removing the catalyst for its increased use, the perceived presumption against pre-charge bail, and expect this to negate the need for RUI in many cases and lead to a significant decrease in the use of this process. In most cases, RUI will clearly not be appropriate.

Alongside this change, the Bill provides for a new power for the College of Policing to issue statutory guidance on pre-charge bail. We will work with the College of Policing to consider how best to set out the exceptional circumstances in which RUI may be appropriate and ensure a robust process which greatly limits the cases of RUI. We will also be monitoring forces closely with an enhanced data collection on pre-charge bail in the future, which will include figures on RUI usage.

Positions of Trust

There were a number of suggestions for further expanding positions of trust measures in the Bill. We do not feel it is appropriate to extend positions of trust to all those whose roles and activities bring them into regular contact with 16 and 17-year-olds. Whilst recognising calls to expand protection in this way, it is important to note that as the list of positions of trust expands so the legal right of those over the age of 16 to consent to sexual activity is eroded. Our provisions will allow further positions of trust to be added via secondary legislation in due course should it prove necessary to do so.

Alex Davies-Jones and Mark Fletcher asked which sports would be covered by clause 45 of the Bill, and whether wrestling would be covered. “Sport” is defined as any game in which physical skill is the predominant factor, or as any form of physical recreation which is also engaged in for purposes of competition or display. We can therefore assure members that this definition, reasonably construed, would clearly include wrestling.

Criminal damage to memorials

There were many irresponsible suggestions during the debate that damaging a statue gets a sentence of 10 years whilst rape only gets 5. This is a grossly misleading comparison. The statutory maximum penalty for rape is life imprisonment. And we are introducing measures in this Bill which mean serious sex offenders spend longer in prison. The statutory maximum for serious criminal damage has always been 10 years where the value of that damage is over £5000. These changes in relation to criminal damage of memorials simply remove the previous restriction on mode of trial and allow the full range of sentencing powers to be used, including a maximum of 10 years. We are giving judges greater discretion as to how they sentence such offenders taking into account emotional and community impact.

In opening the debate, I (Home Secretary) indicated that the provision in clause 46 of the Bill would “cover a range of memorials with low monetary but high sentimental value, for example gravestones, war memorials, roadside tributes to people killed in car crashes and the memorials to people who have been murdered, such as the Stephen Lawrence memorial” (Official Report, 15 March 2021, col. 65). We would like to clarify that flowers and other movable objects will be covered by these changes only if they are placed on memorials. Furthermore, the reference that was made to monetary value of memorials should have been with respect to the value of the damage caused to the memorial rather than the actual value of the memorial.

Public order

There was much debate about the public order provisions in Part 3 of the Bill. These provisions uphold the right to peaceful protest but stops highly disruptive protests from putting lives at risk by blocking ambulances, preventing people getting to work, or disrupting our free press by blockading printing works. The measures in the Bill were reviewed by HM Inspectorate of Constabulary and Fire & Rescue Services as part of their inspection of how the police deal with protests, they concluded that, with some qualifications, the Government’s “proposals would improve police effectiveness without eroding the right to protest”.

There were many claims that clauses 54, 55, and 60 would ban protests which are noisy, this is not the case. The police will only be able to impose conditions on unjustifiably noisy protests that cause harm to others or prevent an organisation from operating. This threshold is appropriately high; the majority of protests in England and Wales do not cause serious disruption to the activities of an organisation or a significant impact on the people in the vicinity of the protest so will be unaffected by this legislation. This power will only limit the most extreme cases where the noise from protests is unjustifiable. As with all public order powers, the police will be required to pay due regard to the human rights of both protesters – including freedom of expression and freedom of assembly – and of those impacted by protests.

Many members raised concerns that clause 59 would criminalise protests which are “annoying”. This is consistent with the existing common law offence of public nuisance and does not connote merely feeling annoyed. The term “annoyance” has been applied to allowing a field to be used for holding an all-night rave; conspiring to switch off the floodlights at a football match so as to cause it to be abandoned; and noise, dirt, fumes, noxious smells and vibrations. The clause has been drafted in line with the Law Commission’s recommendations and in doing so we have reduced the scope of offence. This has been achieved by increasing the fault element from negligence to intention or recklessness; reducing the maximum custodial sentence to 10-years; and including the caveat of “serious” to the harms.

Mick Whitley also raised concerns that the provisions in clause 57, seeking to secure vehicular access to the Parliamentary estate, amounted to the creation of an exclusion zone from which demonstrations would be banned. Clause 57 does not create a buffer zone, nor does it restrict people’s right to protest in the vicinity of the Palace of Westminster. The measures protect the right of access to the Parliamentary Estate for MPs, Peers and others with business there as recommended in the cross-party Joint Committee on Human Rights in their 2019 report on Democracy, freedom of expression and freedom of association: Threats to MPs. They enable a police officer to direct an individual to cease, or not begin, obstructing vehicles entering or exiting the Parliamentary Estate and make it an offence not to comply with such a direction. Those who wish to protest outside Parliament can continue to do so but when instructed by a police officer will have to allow the passage of a vehicle into or out of Parliament.

Non-legislative elements of Sentencing White Paper on Reducing Reoffending

Sir Bob Neill, amongst others, asked how we were addressing alternatives to custody and Beth Winter asked for more on reducing re-offending. Delivering public protection and confidence across the system is not just about better use of custody. In many cases – particularly for lower-level offending – effective community supervision keeps the public safer by providing interventions early to deflect offenders away from future offending. The reforms in this Bill are just one part of our work in this space. Work is also underway on the non-legislative reforms to community sentencing set out in the Sentencing White Paper last year, including launching a pilot to test an alternative delivery model for pre-sentence reports in magistrates’ courts and supporting further scaling up use of community sentences with mental health, drug and alcohol treatment requirements. Our national ‘Call for Evidence’ on neurodiversity was launched in December last year and the publication of the final report is due this summer.

The Sentencing White Paper also highlighted accommodation, employment and substance misuse treatment as the foundations for successful rehabilitation and resettlement. In January this year we announced a £70m investment to reduce crime and improve public safety by tackling these key drivers of reoffending. The government has also announced a £148m investment to combat illegal drugs and increase substance misuse treatment. This is in addition to the government’s manifesto commitments around increasing the number of prison work coaches and development of the Prison Education Service focused on employment and skills. We have also recently published a refreshed strategy on Integrated Offender Management and are using GPS technology for the first time to crack down on acquisitive criminals. Taking these together with wider reforms – in particular to the unified probation service, in which we are investing an additional £155m over the coming year (2012-22) – gives us the best chance of addressing reoffending.

Tackling racial inequality in the criminal justice system

Again, a number of those who spoke in the debate wanted to see more being done to tackle racial inequality in the criminal justice system. We agree that race disparity, wherever it appears, must be directly addressed. Over-representation of different ethnic groups is a troubling and deep-rooted problem, and the response must be a sustained and long-term mission, linking every service and every policy that informs their work. All those working in the criminal justice system clearly acknowledge the problem of race disparity and, applying the principle of “explain or reform”, are urgently seeking to uncover relative differences between groups, using the improvements in data interrogation that were called for in the ‘Independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’. The cross-government response to this review has been the catalyst for a range of changes attached to each of the recommendations, but we do not expect that either alone or within a short period, these will have the transformative or lasting impact we both would like to see.

We published equality statements alongside this Bill that show the likely cumulative equalities impacts of a number of its measures, including those relating to adult and youth sentencing and will shortly publish one covering the Home Office measures. We are also committed to further considering the equalities impacts of the reforms as they develop and are implemented in light of any new evidence, and understanding how these may be mitigated. The equality statement responsibly shows that the outcomes, experiences and perceptions of BAME individuals in the criminal justice system are still likely to be different to those who are White. Our work to consider the over-representation of BAME groups in the existing offender population is ongoing, in order to better understand the complex drivers behind these variations.

We are keen to engage with all those who have insights and expertise in this field and get detailed feedback on how to better monitor and understand the data we have already produced in relation to the Bill’s proposals. We will continue to build on the foundation the ‘Independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’ has provided, but develop and embed initiatives that go beyond it, focusing on the most acute areas of difference, such as Youth Justice. On 16 July 2020, the Prime Minister announced a new Commission on Race and Ethnic Disparities to examine all aspects of continuing racial and ethnic inequalities in Britain, including in criminal justice and policing. The Commission published its report on 31 March 2021.

The report builds on the work of the existing Race Disparity Unit in the Cabinet Office and carries out a deeper examination of what the causes of these disparities are and seeks to establish what works to address them effectively. Equalities Minister Kemi Badenoch is the Minister responsible for the Commission. The government is currently considering its response to the report.

We are copying this letter to all MPs who spoke at Second Reading and placing a copy in the library of the House.

Yours ever

Rt Hon Robert Buckland QC MP

Rt Hon Priti Patel MP