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Baroness Anelay of St Johns moved Amendment No. 212J:



"REVIEW OF UNDULY LENIENT SENTENCES (INDECENT PHOTOGRAPHS OF CHILDREN)
Part IV of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) shall apply to any case in which sentence is passed on a person for any of the following offences—
(a) offences under the Protection of Children Act 1978 (c. 37);
(b) offences under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (indecent photographs of children);
(c) offences under section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child);
(d) offences under Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (possession of indecent photograph of child);
(e) attempting to commit, or inciting the commission of, any of the offences described in paragraphs (a) to (d)."

The noble Baroness said: In moving Amendment No. 212J, I shall speak also to Amendments Nos. 252A and 257A. The amendments would apply to child pornography offences the powers available to the Attorney-General under the provisions of the Criminal Justice Act 1988 to apply to the Court of Appeal for the review of unduly lenient sentences. The amendments would extend to England, Wales and Northern Ireland, and Amendment No. 252A would ensure that the new powers came into force 14 days after Royal Assent.

Three years ago in the Criminal Justice and Court Services Act 2000, Parliament raised the maximum sentence for possession of indecent photographs of children from six months' to five years' imprisonment and the maximum for taking, making or distributing such photographs from three years' to 10 years' imprisonment. Those changes had full cross-party support. They were a response to the huge increase in the trade in child pornography that unhappily has accompanied the technological advances made in recent years—in particular, with the arrival of the Internet.

The Criminal Division of the Court of Appeal issued a guideline judgment in the case of R v Oliver at the end of last year giving guidance to sentencing judges on the length of sentences to be imposed for these offences

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using five levels of seriousness to describe the images involved. However, noble Lords will be aware that in many cases offenders who have committed many serious offences are, indeed, still receiving what appear to be lenient sentences. I could give examples but at this late hour shall desist.

My amendments would allow the noble and learned Lord the Attorney-General to apply for unduly lenient sentences in such cases to be reviewed by the Court of Appeal. The question arises as to why these very serious offences are not already included within the scope of the powers to which I have referred. Perhaps it may be simply that when Parliament enacted the powers in Part IV of the 1988 Act, the fact that the maximum sentences for the two classes of offence were six months and three years respectively meant that it was considered then that there was very little possibility of persuading the Court of Appeal that a sentence within the available range was not merely lenient but unduly so due to the relatively limited sentencing powers of the Crown Court at that time.

The position has now changed. The maximum sentence for possession is now nine times what it was in 1988. The maximum sentence for taking, making or distributing is more than three times higher. The range available to sentencing judges and to the Court of Appeal is much broader and in many cases non-custodial sentences are, I am told, being imposed for very serious offences indeed despite that increase in the maximum penalty.

We have talked much today about what is of interest to the public. It is very clear that these matters are of great concern to the public. Surely, those who contribute to the abuse of children by making and possessing these images should face prosecution and be punished severely. I believe that the amendment would put the Attorney-General in a better position, one which he should find to his advantage and to the advantage of the public. I beg to move.

The Attorney-General (Lord Goldsmith): I start by saying something which I am sure will be readily accepted, but which is important to say. On these Benches we share the abhorrence referred to by the noble Baroness, Lady Anelay, at the conduct to which these offences refer. Children deserve and will receive this Government's continuing protection. That is why, as the noble Baroness said, with cross-party support the maximum sentence for these offences was significantly increased in the Criminal Justice and Court Services Act 2000. Should it be the case, or should it appear to be the case, that further measures are necessary to suppress this mischief, we shall not shrink from taking them.

As the noble Baroness said, the increase for the particular offences in terms of maximum penalty was substantial: from three to 10 years' imprisonment and from six months' to five years' imprisonment respectively for the two offences. The offence which previously had been a summary only offence became one triable on indictment. As the noble Baroness also said, since those higher maximum penalties came into

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effect in January 2001, there has been the important guideline judgment on sentencing by the Court of Appeal in the case of R v Oliver, Hartree and Baldwin. That set out the sentencing guidelines for the offences taking into account the revised maxima which had been introduced.

The guidelines will be very helpful in ensuring that the courts are clear on what is expected of them when it comes to sentencing for this kind of offence.

It is perhaps not generally known that although the unduly lenient sentence power provides an opportunity for me, on behalf of the public, to propose public policy considerations to the Court of Appeal when it is setting sentence guidelines or frameworks, that is not the only opportunity that I have. Following a particular guideline case, I agreed—at his request—with the Lord Chief Justice to provide counsel instructed by me to put forward public policy considerations in cases where, although there was no unduly lenient sentence application, there was a desire by the Court of Appeal to set a general guideline. That happened in relation to dangerous driving offences in the case of Cooksley.

So that is an opportunity to assist in setting sentences appropriate for the offence, taking into account public concerns when the Court of Appeal comes to do its job. That guideline judgment was delivered only late last year. So far, we have no formal statistical evidence about the overall pattern of sentencing in such offences since that case, but we have no reason to believe that the sentencing for those offences since then is especially lenient. It is perfectly possible—this frequently happens—that it is taking a little time for guidelines from the Court of Appeal to have full effect in the lower courts. But prosecutors who have been consulted are not aware and have no concern that the increased sentencing powers are being exercised inappropriately by the courts.

So it has not seemed to the Government that there is any case for adding those offences to the unduly lenient sentence scheme. Of course, it is possible for the Secretary of State to do so by means of secondary legislation, so the present amendment is by no means the only opportunity at which the matter can be considered; and we can keep it under review.

I turn to what may be a slightly delicate matter for me to raise in this context, which is the question of the additional burden that adding to the powers puts on me and my deputy. The way in which such cases are dealt with involves not just advice for the prosecuting counsel who has been involved and the local CPS, not just independent advice from independent Treasury counsel, which we always have commissioned; the matter is also considered in my office.

Ultimately, every decision to refer a sentence as unduly lenient involves the personal consideration of the Attorney-General—myself—or of my deputy, the Solicitor-General. Adding additional categories of cases to those which we can refer risks adding a burden to the work that is put on us, but also on the Court of Appeal. The Court of Appeal from time to time expresses concern about the burden on it. It takes each

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case referred by me seriously: it wants to ensure that they are properly considered, which means that a Court of Appeal must be set up.

Baroness Blatch: Does not the noble and learned Lord agree that if it is felt that an unduly lenient sentence has been awarded in the case of the three offences set out by my noble friend, the burden on the Attorney-General—indeed, on any part of the system—should not be an argument against my noble friend's amendment?

10.45 p.m.

Lord Goldsmith: I entirely agree that the burden on me is completely irrelevant. The burden on the Court of Appeal is a different matter. The Court of Appeal has a heavy job of dealing with cases: appeals against sentence; appeals against conviction. The more cases that are put in to the system on the resources given to the Court of Appeal, the slower justice may be for many.

One must balance those with the degree of concern that exists and the degree of need to refer particular categories of cases. The unduly lenient sentence power does not apply to anything like the majority of offences that can be tried or sentences passed. That is why I started by emphasising the Government's view—particularly given the increase in the sentence agreed and passed in the light of the guideline judgment provided by the Court of Appeal—that there does not appear to be a need to add these offences to the existing categories of cases that can be referred.

That points to the fact that further offences should be added only where there is a proven need to do so. That is why I referred to the question of the burden on all involved. There are many offences that one might desire to add to the existing scheme—indeed, many have been mentioned in the Committee—but there is no apparent need to add those offences at present.

We will monitor closely the operation of the increased sentencing powers for those offences. We will not hesitate to take action if a need to do so becomes apparent. That does not depend upon primary legislation, because there is an existing power under which it can be done by the Secretary of State through secondary legislation, as has been done on previous occasions. Those are the reasons for the Government's view that this is not the right moment to add the offences to the scheme. I invite the noble Baroness not to press the amendments.


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