Source: https://unsplash.com/photos/a-person-in-a-coat-and-hat-standing-in-front-of-a-building-ANo2N6IQCQE
By Chrisllynn Siah
Introduction
The 2023-24 Parliamentary session was opened on Tuesday, November 7 by His Majesty The King. During the State Opening of Parliament, King Charles established the Government’s legislative agenda. This involved carrying over the Victims and Prisoners Bill (also known as the Sentencing Bill) that was first introduced during the 2022-23 Parliamentary session and the introduction of the Criminal Justice Bill [1]. While the Government framed these proposals as positive changes that would improve the UK criminal justice system, they have attracted flak from leading legal figures and those who work in the criminal justice field. They have highlighted that the bills pose human rights concerns, and have criticised them for inadequately addressing the challenges UK prisons face and possibly creating more issues.
Sentencing Bill
Before diving into what critics had to say about the proposed legislation, let us first establish what the bills actually entail. The main goal of the Sentencing Bill is “to ensure tougher sentences for the most serious offenders and increase the confidence of victims.” [2]. According to this bill, courts will have to impose a Whole Life Order for cases where the crime committed already has it as the base punishment [3].
A Whole Life Order means that the prisoner will never be released from prison [4]. When a Whole Life Order is not the base punishment, a judge sets a life sentence with a minimum term that must be served in prison [5]. Different murder offences have different starting points for punishment, and judges adjust their sentences upwards or downwards after taking into account any aggravating or mitigating factors [6]. The Sentencing Bill now makes it mandatory for judges to issue a Whole Life Order for cases where it is the appropriate starting point. These crimes include murder with sexual or sadistic conduct.
However, in exceptional circumstances (such as on compassionate grounds), the court can decide not to issue a Whole Life Order, and issue a minimum life sentence instead [7]. This measure cements the Government’s determination to ensure that in “more serious cases, life will really mean life” [8]. In addition to Whole Life Orders, rapists and offenders convicted of “the most serious sexual offences” will receive a determinate sentence and will be required to serve the entirety of their sentence behind bars.
The second goal of the Sentencing Bill is to reduce reoffending. The Government emphasised that while their goal was to ensure that “the prison estate is used to lock up dangerous criminals for longer”, they are cognizant that this might unintentionally trap “redeemable offenders” into a cycle of reoffending by making it difficult to reintegrate into society, and imposing disproportionately harsh punishments for less serious crimes. It is their belief that in some cases, community sentences are more effective than short custodial sentences at rehabilitating offenders and reducing reoffending [9]. This reasoning had led them to legislate for a presumption in favour of suspending custodial sentences of twelve months or under [10]. To further facilitate reintegration into society, the scope of eligible home detention curfew candidates will be widened to include offenders serving sentences of four or more years [11].
Criminal Justice Bill
The overarching purpose of the Criminal Justice Bill is to “empower police forces and the criminal justice system to prevent new or complex crime, such as digital-enabled crime and child sexual abuse, including grooming.” [12]. Numerous news reports highlighted one particular aspect of the Bill: defendants will now be required to attend their sentencing hearing, and “reasonable force” can be used to ensure that this happens [13]. If offenders refuse to attend, an additional two years will be added to their prison sentences [14]. These measures came after two murderers, Lucy Letby and Thomas Chasman, refused to attend their sentencing hearings and left their victims’ family members distraught [15].
Measures will be established to address child sexual abuse. Individuals who work with children will now have a mandatory duty to report any concerns related to child sexual abuse, and a statutory aggravating factor will be introduced for offenders involved in grooming gangs [16]. In line with enforcing more measures in response to crimes committed against vulnerable people, a statutory aggravating factor at sentencing will be introduced for offenders who murder their partners at the end of their relationship. The “sharing of intimate images” will be criminalised, and the offence of encouraging or assisting others to commit serious self-harm will be “expand[ed]” [17].
While it seems as though the current legislative proposals suggest more jail time and more prisoners, one cannot ignore the very obvious overcrowding issue plaguing UK prisons. In response, the Criminal Justice Bill will also create powers to enable the transfer of prisoners in and out of England and Wales to serve their sentences abroad [18]. Speaking at the Conservative Party conference in Manchester that was held in early October, Justice Secretary Alex Chalk revealed that the government intends to reference Norway’s system for sending offenders abroad [19]. Chalk said that this will be “the largest prison expansion programme since the Victorian era” [20]. While he did not specify which countries the UK was looking at sending offenders to, the Government will choose countries based on whether their prison system meets British standards [21].
Other measures covered in Criminal Justice Bill target anti-social behaviour with significant detrimental community impact, and evolving technology threats [22]. This includes banning articles that have been used to commit crimes such as 3D printing templates for firearm parts, pill presses, and signal jammers that are used in vehicle theft [23]. The maximum penalty for selling a firearm to someone 18 years old or younger has also been increased, and the criminal offence of possessing a bladed weapon with the intention to cause harm has been created [24].
General criticism
Despite the Government’s extensive efforts in filling the gaps of the UK’s criminal justice system, the proposed legislation has been met with harsh criticism. Shadow Justice Secretary Shabana Mahmood claims that the King’s Speech proves that “the Tories have completely [run] out of ideas” and presents a mere “repackag[ing]” of ideas that have been numerous times [25]. Law Society President Nick Emerson believes that solving issues in the criminal justice system should also involve “investing in staff, judges, and its buildings” [26]. In a similar vein, Bar Chair Nick Vinneall KC emphasised the need for additional funding [27]. The proposed legislation may have been extensive, but it appears to be insufficient in the eyes of those directly involved in the criminal justice system.
Human rights concerns
The main point of concern for critics of the Sentencing Bill is the potential human rights violation that it poses. The bill is what some consider to be a “partial resurrection of the Bill of Rights Bill through the disapplication of Section 3 of the Human Rights Act” [28]. Section 3 of the Human Rights Act (HRA) 1998 states that primary and subordinate legislation must be interpreted in a manner that is “compatible” with the rights in the European Convention of Human Rights (ECHR) [29]. This “interpretive obligation” belongs to the courts [30]. The Bill of Rights Bill (which has since been withdrawn) sought to repeal Section 3 of the HRA [31]. However, when the Sentencing Bill was first introduced, the Government's accompanying ECHR memorandum explained that clauses 42-44 (43-45 in the most recent version) of the bill would “disapply section 3” of the Human Rights Act in certain provisions related to “the full legislative framework in England and Wales relating to release, licences, supervision, and recall of indeterminate and determinate sentenced offenders” [32]. If offenders feel that their rights have been violated in these areas, they can no longer avail themselves to HRA litigation.
The disapplication means that courts will not be able to exercise their interpretive obligation, and stands to create a pattern of “repealing” Section 3 of the HRA “by stealth” to violate human rights [33]. Instead of being targeted directly, the HRA is slowly disapplied through legal provisions in new legislation. This has already been demonstrated by the Illegal Migration Act [34]. The Law Society of England and Wales and the Prison Reform Trust worry that human rights are being slowly eroded this way [35]. It is worth questioning why the government believes that they can decide when to adhere to the ECHR’s human rights principles and when not to. Furthermore, when is it appropriate for the Government to decide whether they want to adhere to ECHR principles or not? If there are certain circumstances where the Government has a choice, limits should be placed on the extent to which they can deviate from the principles. An inadequacy in this would place unchecked power into the hands of the Government, threatening the existence of human rights principles in the country.
Human rights concerns surrounding the Criminal Justice Bill stem from the government’s plan to send offenders overseas to serve their sentences. This proposal to send prisoners abroad to other countries in Europe to serve their sentences comes as a response to a growing issue of overcrowding in UK prisons. The average prison sentence has increased by 57% since 2010 and the government’s goal is to create an additional 20,000 places of prison capacity [36]. There is no doubt that something needs to be done to guarantee sustainable solutions to a growing prison population, but it is hard to confidently assert that renting prison spaces abroad is an effective solution but rather one that might further exacerbate the prison crisis.
The government has assured citizens that the partnering country’s prison estate will meet the British standards for regime, rehabilitation, and rehabilitation [37]. But what exactly are those standards? The UK is one of 77 countries to have a National Preventive Mechanism (NPM), which is a body responsible for ensuring that places of detention adhere to international human rights standards set under the Optional Protocol to the Convention Against Torture [38]. Even though the UK was one of the earliest countries to adopt this treaty, its government has repeatedly refused to create a legislative foundation for the NPM. Instead, there are 21 statutory bodies that conduct inspections and visitations, as well as monitor places of detention [39]. The UN Committee against Torture have stated that the responsibility of monitoring prisons lies with the “sending State, even if the “receiving State” has existing arrangements [40].
If the regulatory standards for local prisons already lack structure, it is worrying to think about how the UK Government intends to monitor the treatment of inmates and living conditions of overseas prisons. Multiple questions remain unanswered: how does the UK Government intend for overseas places of detention to be held to the same NPM standards as local prisons? What statutory basis do they have that enables them to do so? Will the Government be able to balance monitoring prisons overseas while tackling the prison crisis happening on their own soil?
Conclusion
Ultimately, the potential human rights violations that the bills pose means that they run incongruent with the “better Britain” that Rishi Sunak promises. While it is worth commending the Government’s efforts, one cannot ignore the issues with the proposed legislation. The Sentencing Bill’s disapplication of Section 3 of the HRA and the Criminal Justice Bill’s ambiguous framework for monitoring overseas places of detention are areas of concern that need to be addressed before the bills become official legislation. A clear solution may not be apparent right now, it is imperative that the Government becomes more intentional about balancing harsher prison laws and protecting offenders’ human rights.
References
[1] Prime Minister’s Office, ‘The King's Speech 2023: background briefing notes’ (Gov.UK, 7 November 2023) <https://www.gov.uk/government/publications/the-kings-speech-2023-background-briefing-notes> accessed 26 November 2023
[2] Prime Minister’s Office, ‘The King's Speech 2023’ (Gov.UK, 7 November 2023) <https://www.gov.uk/government/speeches/the-kings-speech-2023> accessed 27 November 2023
[3] ‘The King’s Speech 2023: background briefing notes’ (n 1)
[4] ‘Types of prison sentence’ (Gov.UK) <https://www.gov.uk/types-of-prison-sentence/life-sentences> accessed 26 November 2023
[5] Prison Reform Trust, ‘Prison Reform Trust briefing: Prison-related measures included in the King’s Speech - November 2023’ (Prison Reform Trust, 7 November 2023) <https://prisonreformtrust.org.uk/wp-content/uploads/2023/11/PRT-Kings-Speech-briefing-071123.pdf> accessed 20 December 2023
[6] ibid.
[7] ‘The King’s Speech 2023: background briefing notes’ (n 1)
[8] ibid.
[9] ibid.
[10] ibid.
[11] ibid.
[12] ibid.
[13] ‘Criminal justice at the heart of the King's Speech’ (Gov.UK, 6 November 2023) <https://www.gov.uk/government/news/criminal-justice-at-the-heart-of-the-kings-speech> accessed 27 November 2023
[14] ibid.
[15] Pippa Crerar and Rajeev Syal, ‘Rishi Sunak’s king’s speech to include hardline criminal justice measures’ The Guardian (London, 6 November 2023) <https://www.theguardian.com/politics/2023/nov/06/rishi-sunaks-kings-speech-to-include-hardline-criminal-justice-measures> accessed 28 November 2023
[16] ‘The King’s Speech 2023: background briefing notes’ (n 1)
[17] ibid.
[18] ibid.
[19] Danielle DeWolfe, ‘UK government to rent prison spaces abroad as overcrowding reaches breaking point’ Leading Britain's Conversation (London, 3 October 2023) <https://www.lbc.co.uk/news/uk-prisoners-to-be-sent-abroad-says-justice-secretary-as-prison-overcrowding-rea/> accessed 20 December 2023
[20] ibid.
[21] ibid.
[22] ‘The King’s Speech 2023: background briefing notes’ (n 1)
[23] ibid.
[24] ibid.
[25] ‘Rishi Sunak’s king’s speech to include hardline criminal justice measures’ (n 15)
[26] Gazette Newsdesk, ‘King’s speech announces legislation on criminal sentencing and leasehold reform’ (The Law Society, 7 November 2023) <https://www.lawgazette.co.uk/law/kings-speech-legislation-on-criminal-sentencing-and-leasehold-reform/5117806.article> accessed 25 November 2023
[27] ibid.
[28] Lucy Noxham, ‘The King’s Speech and the Rule of Law’ (Bingham Centre for the Rule of Law, 3 November 2023) <https://binghamcentre.biicl.org/comments/126/the-kings-speech-and-the-rule-of-law?cookiesset=1&ts=1701387664> accessed 28 November 2023
[29] Human Rights Act 1998, s 3
[30] ‘What's in the Human Rights Act?’ (The British Institute of Human Rights) <https://www.bihr.org.uk/get-informed/legislation/whats-in-the-human-rights-act> accessed 20 December 2023
[31] ‘The King’s Speech and the Rule of Law’ (n 28)
[32] ibid.
[33] ibid.
[34] Illegal Migration Act 2023, s 1(5)
[35] ibid.
[36] Ministry of Justice and The Rt Hon Alex Chalk KC MP, ‘Foreign prison rental to ensure public protection’ (Gov.UK, 3 October 2023) <https://www.gov.uk/government/news/foreign-prison-rental-to-ensure-public-protection#:~:text=The%20Justice%20Secretary%20Alex%20Chalk,be%20locked%20up%20for%20longer> accessed 28 November 2023
[37] ibid.
[38] Louise Finer, ‘Renting prison space overseas: an accountability gap waiting to happen’ (The Justice Gap, 9 October 2023) <https://www.thejusticegap.com/renting-prison-space-overseas-an-accountability-gap-waiting-to-happen/> accessed 27 November 2023
[39] ibid.
[40] UN Committee against Torture, ‘Ninth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (13 May 2016) CAT/C/57/4