House of Commons Justice Committee
Sentencing Guidelines and Parliament: building a bridge
Sixth Report of Session 2008–09
Report, together with formal minutes
Ordered by the House of Commons to be printed 23 June 2009
HC 715 Published 2 July 2009 by authority of the House of Commons London: The Stationery Office Limited £0.00
The Justice Committee
The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies (including the work of staff provided for the administrative work of courts and tribunals, but excluding consideration of individual cases and appointments, and excluding the work of the Scotland and Wales Offices and of the Advocate General for Scotland); and administration and expenditure of the Attorney General's Office, the Treasury Solicitor's Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers).
Current membership Rt Hon Sir Alan Beith MP (Liberal Democrat, Berwick-upon-Tweed) (Chairman) David Heath MP (Liberal Democrat, Somerton and Frome) Rt Hon Douglas Hogg MP (Conservative, Sleaford and North Hykeham) Siân James MP (Labour, Swansea East) Jessica Morden MP (Labour, Newport East) Julie Morgan MP (Labour, Cardiff North) Rt Hon Alun Michael MP (Labour and Co-operative, Cardiff South and Penarth) Robert Neill MP (Conservative, Bromley and Chislehurst) Dr Nick Palmer MP (Labour, Broxtowe) Linda Riordan MP (Labour and Co-operative, Halifax) Virendra Sharma MP (Labour, Ealing Southall) Andrew Turner MP (Conservative, Isle of Wight) Andrew Tyrie MP (Conservative, Chichester) Dr Alan Whitehead MP (Labour, Southampton Test)
Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk
Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House.
All publications of the Committee (including press notices) are on the internet at www.parliament.uk/justicecom
Committee staff The current staff of the Committee are Fergus Reid (Clerk), Dr Rebecca Davies (Second Clerk), Ruth Friskney (Adviser (Sentencing Guidelines)), Hannah Stewart (Committee Legal Specialist), Ian Thomson (Group Manager/Senior Committee Assistant), Sonia Draper (Committee Assistant), Henry Ayi-Hyde (Committee Support Assistant), Gemma Buckland (Public Policy Specialist, Scrutiny Unit) and Jessica Bridges-Palmer (Committee Media Officer).
Contacts Correspondence should be addressed to the Clerk of the Justice Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 8196 and the email address is [email protected]
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Contents
Report Page
Summary 3
1 Introduction 5
2 The changing structures for sentencing guidelines 7 Developing a system to support consistency in sentencing 7 The work of the Sentencing Guidelines Council 7 The development of a sentencing guideline 8 The Coroners and Justice Bill 9 The role of Parliament 9 Justice Select Committee 10
3 Democratic and judicial voices 11 The many influences on a sentence 11 Judicial discretion 12 A democratic deficit? 13 The role of the Justice Select Committee 16 Setting a sentencing guideline in context 16 Contributing to post-legislative scrutiny 18
4 The crucial elements for scrutiny 21 Cost and relative effectiveness of sentencing 21 Seeking a consensus as to the purpose of sentencing 21 The cost of sentencing 26 Public confidence in sentencing 29 The sentencing knowledge gap 29
Conclusions and recommendations 35
Annex A – Evidence and Witnesses 38
Annex B – Definitive sentencing guidelines published by the Sentencing Guidelines Council 40
Appendix A: Letter from the Secretary of State for Justice 42 Coroners and Justice Bill: Sentencing Council 42
Formal Minutes 43
Reports from the Justice (previously Constitutional Affairs) Committee since Session 2006–07 44
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Summary
Parliament and the judiciary have different and complementary roles in determining sentencing; Parliament sets the overall legislative framework, sentencers determine the individual sentence in a particular case. In the middle sit sentencing guidelines. The Justice Committee provides a form of parliamentary comment on these by considering draft sentencing guidelines. This is an area that has recently been subject to debate in terms of how to enhance democratic engagement within the constitutional framework.
Our work with sentencing guidelines suggests that more attention needs to be paid to how sentencing contributes to public confidence in the criminal justice system and to the costs of different sentences and their relative effectiveness in achieving the purposes of sentencing. These areas will be the priorities for our own scrutiny of sentencing guidelines, and for our scrutiny of criminal justice policy more broadly. The danger of a sentencing policy based on misconceptions about what the public wants is that over the longer term resources will be diverted away from a sentencing framework that is effective in reducing re-offending, creating more victims of crime. There are still fundamental questions to be answered in discerning what works in achieving an effective sentencing framework. This has been a consistent theme in our scrutiny of sentencing guidelines, and is being discussed in greater depth in our Justice Reinvestment inquiry.
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1 Introduction
1. On 9 May 2007 the Justice Select Committee took over responsibility for monitoring draft sentencing guidelines.1 This is an unusual area of select committee activity. In the context of proposals to alter the way sentencing guidelines are developed, we judged it an appropriate time to reflect on our experience.
2. The process of developing sentencing guidelines has been in flux since the Justice Select Committee began its monitoring function. The Sentencing Advisory Panel’s and Sentencing Guidelines Council’s own proposals to streamline their processes were overtaken by Lord Carter of Coles’ review of prisons, which called for consideration of a structured sentencing framework and a Sentencing Commission to oversee that framework.2 The Sentencing Commission Working Group, convened under the chairmanship of Rt Hon Lord Justice Gage to evaluate these ideas, produced a consultation in March 2009 and reported in July 2009.3 The Coroners and Justice Bill takes forward recommendations made by the majority of the Working Group and makes provision for a new Sentencing Council for England and Wales.
3. The Sentencing Commission Working Group appears to have found the question of the parliamentary role in the development of sentencing guidelines a difficult one; the Working Group was unable to agree a recommendation on how Parliament should be involved in the production of sentencing guidelines. A minority of the Working Group argued for a new system whereby Parliament would formally approve sentencing guidelines. The majority of the Working Group felt that the disadvantages of such a procedure would outweigh the advantages and did not make such a recommendation.4 The Coroners and Justice Bill does not therefore make provision for a process of parliamentary approval of sentencing guidelines but does make provision for a parliamentary select committee to be a statutory consultee of draft sentencing guidelines.
4. The Working Group’s report also stated that “consideration might be given to enhancing Parliament’s existing role in scrutinising draft guidelines.”5 We have taken this idea, of enhancing the current role of the select committee, as our starting point. In light of our experience looking at sentencing guidelines, we discuss in this report the respective roles of the judiciary and the elected house of the legislature in determining sentencing policy, sentencing guidelines, and sentencing decisions. This provides the constitutional context for parliamentary involvement in sentencing guidelines. Our experience of
1 The Ministry of Justice was created on 9 May 2007, from what had been the Department for Constitutional Affairs , taking over elements of the Home Office relating to prisons and probation. The Constitutional Affairs Select Committee, responsible for scrutinising the Ministry of Justice, formally became the Justice Select Committee on 6 November 2007. 2 Lord Carter of Coles’ Review of Prisons, Securing the future: proposals for the efficient and sustainable use of custody in England and Wales, December 2007, Recommendation 3 3 Sentencing Commission Working Group, A structured sentencing framework and sentencing commission: a consultation paper, March 2008, and Sentencing Commission Working Group, Sentencing guidelines in England and Wales: an evolutionary approach, July 2008 4 Sentencing Commission Working Group, Sentencing guidelines in England and Wales: an evolutionary approach, July 2008, paras 9.17-9.18 5 Sentencing Commission Working Group, Sentencing guidelines in England and Wales: an evolutionary approach, July 2008, para 8.26
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scrutinising sentencing guidelines to date has made it clear to us that there are key areas that require much closer consideration in both the development and scrutiny of sentencing guidelines. First is the cost of different sentences and their relative effectiveness, in other words what works in terms of achieving the purposes of sentencing. Second is the need to promote public confidence in the criminal justice system. We identify these as priorities for future scrutiny of sentencing guidelines; at the same time we explore some of the difficulties in embedding these principles in the development of sentencing guidelines.
5. A focus on an individual sentencing guideline can illuminate broader concerns and issues in relation to the criminal justice system. We will continue to review sentencing guidelines in the wider context.
6. Our reflection on our engagement with sentencing guidelines takes place within the context of the creation of a Sentencing Council for England and Wales but does not comment on the merits of such a body nor of sentencing policy in general. In 2008, we conducted a major inquiry into sentencing policy, Towards Effective Sentencing, and thereafter commenced an inquiry into Justice Reinvestment which looks at the rational allocation of resources to reduce re-offending. This latter inquiry is considering topics in this report, for example the purposes of sentencing, in the context of the criminal justice system as a whole.
7. We would like to thank everybody who submitted written evidence and all our witnesses. Annex A lists oral evidence sessions and witnesses.
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2 The changing structures for sentencing guidelines
Developing a system to support consistency in sentencing 8. The current organisational structure for the production of sentencing guidelines has developed gradually. The Magistrates’ Association had issued Magistrates’ Court Sentencing Guidelines while the Court of Appeal produced guideline judgments following individual cases.6 The Crime and Disorder Act 1998 placed a new duty on the Court of Appeal to consider producing or revising sentencing guidelines when hearing an appeal or an Attorney General’s reference, or following a proposal from the Sentencing Advisory Panel.7 The 1998 Act created this Sentencing Advisory Panel, which began its work in July 1999, to support the Court of Appeal in creating or revising sentencing guidelines, by carrying out consultation and providing advice and information to the Court.8 The Court of Appeal was required in framing sentencing guidelines to consider: the need to promote consistency in sentencing, current sentencing practice, the cost and relative effectiveness of different sentences in preventing re-offending, the need to promote public confidence in the criminal justice system and the views of the Sentencing Advisory Panel.9
9. The process of developing sentencing guidelines was changed again by the creation of the Sentencing Guidelines Council in the Criminal Justice Act 2003.10 This meant that the final determination as to the content of sentencing guidelines was made by a non- departmental public body with majority, but not wholly, judicial membership. The creation of the Sentencing Guidelines Council was one of three options for new machinery to develop sentencing guidelines considered by John Halliday in his review of sentencing, Making Punishments Work. Halliday stated that the goal “should be structured and principled decision making, not adherence to pre-determined outcomes, and within a framework based on deliberation and consultation, accessible to all, and capable of being modified in the light of experience.”11
The work of the Sentencing Guidelines Council 10. The Sentencing Guidelines Council, chaired by the Lord Chief Justice, met for the first time in March 2004. To date, the Sentencing Guidelines Council has produced a range of definitive sentencing guidelines covering specific offence types and general principles, the latter including the definition of seriousness and reduction in sentence for a guilty plea (see Annex B). The 2007/08 annual report for the Sentencing Advisory Panel and Sentencing
6 The Sentencing Guidelines Council issued Magistrates’ Court Sentencing Guidelines in May 2008; the Sentencing Guidelines Council also publishes a compendium of guideline judgments. 7 Crime and Disorder Act 1998, Section 80 8 Crime and Disorder Act 1998, Section 81 9 Crime and Disorder Act 1998, Section 80 10 Criminal Justice Act 2003, Section 167 11 John Halliday, Making Punishments Work: A Review of the Sentencing Framework for England & Wales, July 2001, para 8.7
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Guidelines Council reported that: “The Council is nearing the completion of its goal of producing a guideline for the majority of offences that are regularly sentenced as well as for key issues of general principle.”12 Sentencing guidelines for specific offences include robbery, offences in the Sexual Offences Act 2003, and assault and other offences against the person.
The development of a sentencing guideline The Sentencing Guidelines Council decides to consider a particular topic for a guideline, on its own initiative or following a suggestion from the Sentencing Advisory Panel or the Secretary of State. The Sentencing Guidelines Council commissions the Sentencing Advisory Panel to provide advice. The Panel examines the area of sentencing and produces a consultation paper for public consultation. The Sentencing Advisory Panel may also commission independent research into a particular aspect of the topic. The Sentencing Advisory Panel considers the responses to its consultation and drafts advice to the Sentencing Guidelines Council. The Sentencing Guidelines Council then produces a draft sentencing guideline which is sent to the Secretary of State and the Justice Select Committee for consideration, with up to two months for comments. The Sentencing Guidelines Council makes the final decision as to what is issued as the definitive sentencing guideline.
11. Definitive sentencing guidelines covering offence types usually work by defining levels of seriousness for offences. For example, the sentencing guideline for offences of causing death by driving defines levels of seriousness for four specific offences in this category. The offence of causing death by careless driving has three levels—the highest level where the driving is not far short of dangerous, the lowest for careless or inconsiderate driving arising from momentary inattention and a middle band.13 The draft sentencing guideline for fraud (statutory offences) proposes categories of seriousness for types of fraudulent activity (e.g. confidence fraud) rather than for specific offences based on both the amount obtained by fraud and characteristics of the activity, such as the level of planning.14
12. Guidelines provide starting points for each category of seriousness, from which a court sentencing a first time offender convicted after trial (i.e. who pled not guilty) would then apply mitigating or aggravating factors in order to reach a provisional sentence. Guidelines also provide a range within which this provisional sentence would normally fall. Previous convictions, personal mitigation and any discount required for a guilty plea would then be considered and might take the sentence outside the range. The sentencer must also consider the total sentence and ancillary orders and ensure that it is proportionate to the offending behaviour.
12 Sentencing Guidelines Council and Sentencing Advisory Panel, Annual Report 2007/08, 25 June 2008 13 Sentencing Guidelines Council, Definitive Guideline: Causing Death by Driving,15 July 2008 14 Sentencing Guidelines Council, Consultation Guideline: Sentencing for fraud-statutory offences, 25 February 2009
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13. Guidelines also provide information about mitigating and aggravating factors particularly relevant to the specific offence. For example, the guideline on theft offences covers offenders committing acquisitive crime motivated by an addiction (the guideline on seriousness provides information on common general aggravating and mitigating factors).15 Guidelines also cover issues in relation to ancillary orders that might be made, such as confiscation or disqualification from driving.
14. Under the Criminal Justice Act 2003 sentencers must “have regard to” relevant guidelines and give reasons if a sentence is imposed outside that set out in guidelines as normally appropriate.16 The Coroners and Justice Bill, as sent to the House of Lords on 26 March 2009, provides that every court must “follow” any relevant sentencing guidelines “unless the court is satisfied that it would be contrary to the interests of justice to do so.”17
The Coroners and Justice Bill The Coroners and Justice Bill proposes the creation of a single Sentencing Council for England and Wales, to replace the existing Sentencing Guidelines Council and Sentencing Advisory Panel. The Bill requires the Sentencing Council to consult on draft sentencing guidelines, specifically with the Justice Select Committee. The Bill places further duties on the new Sentencing Council to provide impact assessments with draft sentencing guidelines, to monitor the effect of sentencing guidelines and to publish with its annual report information on the sentencing and non-sentencing factors likely to impact on prison, probation and youth justice resources. The Council must also publish information on sentencing practice locally and may do so nationally. A point of controversy in consideration of the Bill is whether there should be a stricter requirement on the court to apply guidelines than that which is set out in the Criminal Justice Act 2003.
The role of Parliament 15. During discussions on the creation of the Sentencing Guidelines Council, the then Leader of the House, the Rt Hon Robin Cook MP, suggested that the Home Affairs Select Committee could act as “a bridge […] between Parliament and the [Sentencing Guidelines] Council in order to enable Parliament properly to contribute to those guidelines whilst preserving the proper independence of the Council.”18 The role of that Committee would be to “offer observations, advice and suggested amendments to the Council.”19
15 Sentencing Guidelines Council, Theft and Burglary in a building other than a dwelling, Definitive Guideline, 9 December 2008 16 Criminal Justice Act 2003, Sections 172 and 174 17 Coroners and Justice Bill, Clause 111 18 Letter dated 13 June 2002 from Rt Hon Robin Cook MP, Leader of the House, to Chris Mullin MP, Chairman of the Home Affairs Committee, reproduced in Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2, HC 1207 19 Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2, HC 1207
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16. According to the then Home Secretary, the Rt Hon David Blunkett MP, at the time of creating the Sentencing Guidelines Council there was “concern which was raised in the House of Commons that there should be a greater role both for Parliament and the wider community in the production of sentencing guidelines.”20 This corroborated the White Paper, Justice for All, which stated that Parliament would be asked to look at sentencing guidelines as:
“this will ensure democratic engagement in the setting of guidelines, by those who have to consider proposals for, and make the law on, sentencing. The public has a right to expect this democratic engagement in a way that does not contravene the proper distinction between the role of Parliament and the independence of the judiciary.”21
17. The Home Affairs Select Committee agreed to carry out the role of reviewing draft guidelines, stating:
“We do not envisage our function as being to give or withhold formal approval of each guideline, or to provide extended analysis of its contents, but to focus on particular issues of concern or interest to Parliament or the public. Where we consider that a draft guideline raises major issues, we will make a report to the House on these. In the case of other guidelines we will supply our comments to the Council in the form of a letter from the Chairman, which we will also publish on our website.
“We consider that there may be some circumstances in which it would be desirable for draft guidelines which raise particularly important or sensitive issues to be debated in a forum which other Members of the House could attend. The Government has agreed in principle to the proposal that draft guidelines should be referred, where need arises, to a standing committee on delegated legislation. This proposal raises procedural and other issues which require further consideration. An alternative possibility would be for this Committee’s report on a draft guideline to be debated in Westminster Hall on a motion for the adjournment.”22
Justice Select Committee 18. On 9 May 2007 the Justice Select Committee took over the parliamentary role in relation to sentencing guidelines as a consequence of changes in departmental responsibilities. We considered seven sentencing guidelines between May 2007 and May 2009. We also conducted a major inquiry, Towards Effective Sentencing, to evaluate the implementation and impact of the Criminal Justice Act 2003, the principal sentencing statute, and heard oral evidence on the topical issue of proposals for a Sentencing Commission (see Annex A).
20 House of Lords, Report of the Select Committee on the Constitution, Criminal Justice Bill, Session 2002-3, HL Paper 129, 7th Report 21 The Criminal Justice System, Justice for All, Cm5563, July 2002 22 Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2, HC 1207, paras 9 and 10.
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3 Democratic and judicial voices
19. The role that Parliament plays in monitoring sentencing guidelines has to take into account the different roles of Parliament and the judiciary. While sentencing as a whole requires democratic legitimacy, justice in individual cases requires that the independence of judicial decision-making is beyond question. This chapter explores these areas to inform the future of parliamentary monitoring of sentencing guidelines.
The many influences on a sentence 20. The decision as to what sentence to impose is a balance between the influence of the individual sentencer and the framework set by Parliament. Professor Neil Hutton, University of Strathclyde, comments:
“There is a common misconception that judges have sole authority over sentencing decisions; this is never the case even in those jurisdictions where judges exercise very wide discretion. Sentencing always takes place within a legally authorised structure.”23
21. The overarching division between the role of Parliament and the role of the sentencer is that one (Parliament) defines the framework for sentencing where the other (the sentencer) makes the decision on the individual case within that framework. The former Lord Chief Justice, Rt Hon Lord Phillips of Worth Matravers, described the balance of interests:
“The primary way that Parliament influences the sentence is by making statutory provisions that restrict the discretion of the judge as to what sentence to impose. The most obvious example is that when a new offence is introduced by statute the statute will normally specify the maximum sentence that the judge can impose. In this way Parliament indicates its view of the relative gravity of the offence and the judges have regard to this when imposing individual sentences.”24
22. Parliament defines the overall sentencing framework by setting maximum penalties for offences and determining the structures of sentencing, for example defining in legislation that a court must take a guilty plea into account when determining sentence or by legislating for specialised types of sentence or sentencing, such as Imprisonment for Public Protection (IPP) sentences for those offenders considered to be dangerous.25 Our Towards Effective Sentencing inquiry considered in detail Government failures to provide adequate
23 Hutton, N. ‘Institutional Mechanisms for incorporating the public’,in Frieburg A., and Gelb K. (eds), Penal Populism, Sentencing Councils and Sentencing Policy, Willan Publishing, Devon, 2008, p208 24 Rt Hon Lord Phillips of Worth Matravers, “Who decides the sentence?”, Prisoners’ Education Trust Annual Lecture, 14 October 2008 Rt Hon Lord Woolf was Lord Chief Justice 6 June 2000-30 September 2005; Rt Hon Lord Phillips of Worth Matravers was Lord Chief Justice 30 September 2005-1 October 2008, during which time he gave evidence to the Home Affairs Select Committee as part of the Towards Effective Sentencing inquiry; Rt Hon Lord Judge has been Lord Chief Justice since 1 October 2008, when he was also elevated to the peerage, but gave evidence to the Justice Committee prior to this as President of the Queen’s Bench Division and Head of Criminal Justice. 25 Criminal Justice Act 2003, section 144
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resources for the implementation of IPP sentences and concerns about how these sentences were originally designed in the Criminal Justice Act 2003.26
23. There are also a great many other factors that affect what sentences are imposed and what they mean in practice. Local policing priorities or public willingness to report crime will affect whether a person ever enters the criminal justice system in the first place; the Crown Prosecution Service decision as to what offence a person should be charged with determines which of the maximum sentences set by Parliament the sentencer is working with. Once a sentence is imposed, the operation of that sentence will depend significantly on decisions made by the services responsible for implementation. For example, for prisoners on IPP sentences, the type of sentence and the minimum sentence will have been determined by the sentencer but it is the Parole Board who will decide how long that individual spends in prison beyond the minimum term. Nicola Padfield, University of Cambridge, referred to factors like this as “back-door” sentencing, saying: “It is too easy to lay the blame on magistrates and judges.”27
Judicial discretion 24. Rt Hon Lord Judge, Lord Chief Justice, emphasised the principle of judicial discretion to the Justice Select Committee: “The point about the judicial discretion is that a judge is trying to do justice in the individual case”.28 However, the judge’s ability to respond to the individual case takes place only within the range of influence that his or her decision can have and according to the framework set by Parliament. Where proposals come forward that might move decisions about sentencing into the hands of Parliament, the Magistrates’ Association raise misgivings about “upsetting the balance between the legislature and the judiciary.”29 The Council for HM Circuit Judges fear the consequences of such action: “executive or legislative encroachment would put the separation of powers at risk undermining the Constitution.”30 The Criminal Bar Association commented on how judicial discretion is integral to the criminal justice system:
“Judges must be allowed to retain a discretion to decide upon a sentence that is appropriate for the particular facts of an individual case. The exercise of this discretion, based upon a full consideration of the individual case, is exactly the judgment that a judge is expected to bring to the criminal justice system.”31
25. Sentencing guidelines fall inbetween the exercise of discretion by individual sentencers and the overall framework drawn up by Parliament, by providing further guidance to sentencers on levels of seriousness within an offence type and how that translates into sentence types and lengths. The Sentencing Guidelines Council, responsible for the final
26 Justice Committee, Fifth Report of Session 2007-08, Towards Effective Sentencing, HC 184-i 27 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 4 28 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 19 29 The Magistrates’ Association Response to the Sentencing Commission Working Group Consultation, 30 May 2008 30 Council of HM Circuit Judges Response to the Sentencing Commission Working Group Consultation, 30 May 2008 31 Criminal Bar Association Response to the Consultation Paper of the Sentencing Commission Working Group, 5 June 2008
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decision as to what instructions go into these guidelines to sentencers, is chaired by the Lord Chief Justice and has a majority of judicial members; guidelines are drawn up with reference to current patterns of sentencing and guideline judgments from the Court of Appeal. The Sentencing Guidelines Council is thus an independent body with significant judicial input. We look in more detail at what the Sentencing Guidelines Council focuses on when drawing up guidelines later in this report.
26. Professor Mike Hough, King’s College London, suggested that there is a general consensus of support for current sentencing guidelines produced by the Sentencing Guidelines Council. He said: “We have talked to judges and magistrates about their sentencing practice, including their views of the guidelines, and I do not get a sense that they find them appalling.”32 The reason that there is support for sentencing guidelines seems to be, according to practitioners and academics, that they provide an appropriate balance between discretion for the individual case and a consistent structure for decision making. The Magistrates’ Association, for example, commented:
“It [the Consultation Sentencing Guideline for Offences Against the Person] is certainly designed—all guidelines are—to improve consistency of approach. As far as outcome is concerned, it is inevitable that there will be a range depending on the individual circumstances.”33
Professor Andrew Ashworth QC, Oxford University, said:
“[The current approach to sentencing guidelines] allows judges room for manoeuvre, it allows them to go outside the range if there is something unusual, but it should require them to start from a certain point in all similar cases.”34
A democratic deficit? 27. The role of Parliament in sentencing policy is the “democratic expression of the ‘public voice’”.35 Whereas some witnesses said the guidelines allow judicial discretion, there are concerns that mechanisms for drawing them up leave a ‘democratic deficit’.
28. Warren Young and Claire Browning of the New Zealand Law Commission argue that, without parliamentary participation in drawing up sentencing guidelines:
“there is no effective mechanism whereby Parliament can participate in the setting of sentencing levels and thereby perform its social policy function. If it wishes to try, it has recourse only to the blunt tool of amending maximum penalties, in the hope that
32 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 23 33 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assaults, 23 October 2007, HC (2006-07) 1098-i, Q 2 34 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 21 35 Hutton, N. ‘Institutional Mechanisms for incorporating the public’, in Frieburg A., and Gelb K. (eds), Penal Populism, sentencing Councils and Sentencing Policy, Willan Publishing, Devon, 2008, p210
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this will have some unspecified trickle-down effect upon sentencing in the ordinary run of case.”36
The New Zealand Law Commission therefore proposed that a new sentencing body in New Zealand should draw up sentencing guidelines and then place them before Parliament in their entirety subject to a negative resolution procedure.37 They felt that, if the:
“goal of changing the nature of the law and order debate is to be achieved, there must be some political ownership of the [sentencing] guidelines […]. The alternative is that it is too easy to use sentencing as a rhetorical political device.” 38
29. The Sentencing Commission Working Group considered whether, in creating a new sentencing body, changes should be made to how Parliament considers sentencing guidelines; the Working Group was unable to agree. A minority of the Sentencing Commission Working Group recommended, as had been the proposal for New Zealand, that Sentencing Guidelines should be placed before Parliament to be accepted or rejected as a whole. It commented that “enhancing Parliamentary scrutiny and participation in the guidelines process would give the guidelines greater democratic legitimacy”.39 It also commented on the impact of a formal process of parliamentary approval on the quality of public debate over sentencing:
“such a system may lead to stability over time. It would reduce the risk that sentences would increase in response to political criticism of individual decisions and would help to control the impact of media firestorms. Parliament might be encouraged to take responsibility for the guidelines in the knowledge of the price tag attached to them.”40
30. Sentencers in England and Wales are sceptical about Parliament as a venue for rational debate on law and order. The Judiciary of England and Wales commented on New Zealand proposals for laying sentencing guidelines before Parliament:
“The principal advantage claimed is this allows elected members of Parliament to participate in the setting of sentencing levels, which may be thought to be a matter of legitimate social concern: it would be a way of giving some form of Parliamentary ‘ownership’ to the advisory guidelines of the Council. […] The risk must be that it will allow sentencing levels to be driven up yet further by tabloid pressure and political rhetoric.”41
The Council of HM Circuit Judges quoted the former Lord Chief Justice, Rt Hon Lord Woolf, as saying:
36 Young, W. and Browning, C., ‘New Zealand’s Sentencing Council’, Criminal Law Review, No. 4 (2008) 37 Since the 2008 election in New Zealand proposals for a new Sentencing Council have not been progressed. 38 Young, W. and Browning, C., ‘New Zealand’s Sentencing Council’, Criminal Law Review, No. 4 (2008) 39 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An Evolutionary Approach, July 2008, paragraph 8.21 40 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An Evolutionary Approach, July 2008, paragraph 8.22 41 Response prepared at the request of the Senior Presiding Judge, Response to the Sentencing Commission Working Group Consultation Paper, 30 May 2008
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“We should at all costs avoid the House of Commons becoming involved in a bidding war about sentencing levels in which someone argues for a standard sentence of one year for a first time burglar and someone else suggests two and someone else suggest three”.42
31. Our two academic witnesses had similar concerns about whether Parliament could consider sentencing without “politicians [being] locked in a counterproductive battle to ‘out-tough’ each other.”43 Professor Ashworth expressed concern that Parliament as a whole might look at sentencing guidelines, saying:
“I have a certain reluctance simply borne of the possibility that perhaps some Members of Parliament might, for their own reasons or for reasons of things that have happened in their constituency, feel that they have to argue in favour of severity all the time, and it would also, I think, put the Government on the spot because they would have to decide where their position was on any particular guideline or set of guidelines”.44
Professor Hough had similar concerns, but nevertheless concluded that sentencing guidelines should be placed before Parliament. He stated:
“it is very important to have some sort of buffer institution to stand between sentencing and the law and order rhetoric that one inevitably gets between Parliament and the press; but on the other hand to have no parliamentary oversight at all is unthinkable.”45
Professor Hough and Jessica Jacobsen recommended, in their report Creating a Sentencing Commission for England and Wales: an opportunity to address the prison crisis, that sentencing guidelines be presented to Parliament on a negative resolution procedure. They propose this as an addition to the Justice Select Committee reviewing guidelines.46
32. The recommendation made by the majority of the Sentencing Commission Working Party was that sentencing guidelines should not be laid before Parliament for approval, regarding this as “a significant and unwarranted change in the relationship between Government and Parliament on the one hand and the judiciary on the other. They [those members of the working group making this recommendation] believe that seeking Parliamentary approval would inevitably result in the politicisation of the guidelines.”47 A
42 Council of HM Circuit Judges, Response to the Sentencing Commission Working Group Consultation, 30 May 2008 43 Hough, M., Jacobsen, J. and Prison Reform Trust, Creating a Sentencing Commission for England and Wales: an opportunity to address the prison crisis, 2008 44 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 37 45 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 38 46 Hough, M., Jacobsen, J. and Prison Reform Trust, Creating a Sentencing Commission for England and Wales: an opportunity to address the prison crisis, 2008 47 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An Evolutionary Approach, July 2008, para 8.23
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comment was nevertheless made that “consideration might be given to enhancing Parliament’s existing role in scrutinising draft guidelines.”48
The role of the Justice Select Committee 33. The current role of the Justice Select Committee is seen as an appropriate balance between judicial independence and democratic scrutiny, in the sense that the Justice Select Committee comments on draft guidelines, but our views are not binding on the Sentencing Guidelines Council. The Council of HM Circuit Judges said:
“We agree that the present procedure which provides that Parliament and Ministers should be consulted […] is appropriate […]. We believe that the Sentencing Guidelines Council, as an independent body, should make the final decision”.49
Professor Ashworth similarly was satisfied with the role of the Justice Select Committee, concluding, “so for myself I am very happy with the job that this Committee does.”50
34. Whilst maintaining this balance, our experience of monitoring sentencing guidelines in our first two years as the Justice Select Committee has suggested ways in which this role might be enhanced. These include ensuring cross-fertilisation between review of individual guidelines and scrutiny of the broader criminal justice context, and using consideration of sentencing guidelines to enhance post-legislative scrutiny.
Setting a sentencing guideline in context 35. Professor Ashworth raised a concern about how looking at individual areas in terms of sentencing guidelines can skew effective oversight:
“the fact that the guidelines at the moment come out in penny numbers […] does not really lend itself to a proper rounded consideration of the whole map and that is really what now above all we need to do. […] the fact that we proceed at the moment by penny numbers not only inhibits proper parliamentary scrutiny but also gives that press regular field days because they can have a little pick at each guideline […] whereas it would be far better if they looked at the whole picture.”51
36. Our consideration of an individual sentencing guideline often raises issues of the inter- relationships between sentencing for different offences. For example, RoadPeace questioned the relationship between offences of causing death by driving and those offences which involve the same standard of driving but, by fortune, no fatality. They stated: “the maximum sentence is 14 years if the victim happens to be killed, but just two
48 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An Evolutionary Approach, July 2008, paragraph 8.26 49 Council of HM Circuit Judges, Response to the Sentencing Commission Working Group Consultation, 30 May 2008 50 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 37 51 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 37
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years for an act of equally bad driving if the victim happens to survive (even if s/he is maimed for life).”52
37. We have also seen how key conundrums for sentencing as a whole may be highlighted through an individual sentencing guideline. The sentencing guideline for theft and burglary not in a dwelling raised issues of dealing with persistent low level offenders, including those stealing to fund an addiction. Paul Cavadino, Chief Executive of Nacro, suggested that there was a double-standard in sentencing such individuals:
“we tend to say, ‘we have tried fines and we have tried community penalties. They did not work. Therefore, we must use custody’. We less often say, ‘We have used custody. The offender re-offended. That did not work, so we ought to try something else’.”53
He went on to argue that, as with individuals who have to try to give up smoking several times before they succeed, a drug addict may require more than one chance. He spoke of people in his experience: “They have gone on a drug rehabilitation programme, they have relapsed, they have re-offended, but they have subsequently had another chance. They have gone on another programme and eventually have succeeded.”54 He concluded that “we should be ready, in appropriate cases, to use community penalties of an appropriate kind repeatedly, if that seems to be the best option, the option most likely to prevent re- offending.”55
38. An important aspect of our work with sentencing guidelines has therefore been to pinpoint concerns about the broader aspects of the criminal justice system during consideration of individual guidelines. In considering sentencing for offences against the person, we asked questions about the use of custodial sentences for less serious violence. In relation to sentencing for theft, we looked at cases where individuals commit crimes to fund an addiction, and how a sentencing regime can respond effectively to an individual who may find it difficult to move past that addiction and out of crime. Sentencing for offences of causing death by driving raised a number of issues around how bereaved families are kept informed about criminal justice processes. Where relevant, we have commented on these both to the Sentencing Guidelines Council and the Ministry of Justice. We have further found that the focus on an individual area of sentencing provided important considerations for our scrutiny in other areas. For example, we were able to take ideas from Victim Support on what victims want from the criminal justice system, discussed in the context of the sentencing guideline on theft and burglary (non-dwelling), and pursue these with witnesses in our Justice Reinvestment inquiry.56
52 Justice Committee, Consultation Sentencing Guideline: Causing Death by Driving, Oral and Written evidence, 4 March 2008, HC (2007-08) 407-i, Ev 17 53 Oral evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC (2007-08) 649-i, Q 11 54 Oral evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC (2007-08) 649-i, Q 11 55 Oral evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC (2007-08) 649-i, Q 11 56 See for example, uncorrected transcript of oral evidence taken before the Justice Committee on Justice Reinvestment, 24 June 2008, HC (2007-08) 425-iv, Q171
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39. Consideration of sentencing guidelines is an unusual parliamentary process without applicable formal parliamentary procedures. It also presents certain practical difficulties. It has not been possible, for example, within the usual guidelines timetable to conduct conventional select committee evidence gathering leading to a report to the House. Whereas normally a select committee determines its own priorities as to where scrutiny is important, the process of monitoring sentencing guidelines is subject to the timetables and processes of an external body, the Sentencing Guidelines Council, which itself may be affected by timetables for implementing new criminal offences. These timetable pressures particularly affect the range of evidence available to us, as the most relevant organisations may also be seeking to respond on specific issues relating to the guideline directly to the Sentencing Guidelines Council.57
Contributing to post-legislative scrutiny 40. The Lords Constitution Committee commented in their report Relations between the executive, the judiciary and Parliament on the desirability of post-legislative scrutiny, which could look at how courts are interpreting and applying legislation.58 Our experience with sentencing guidelines has suggested that consideration of sentencing guidelines, which are after all a concrete example of a system explicitly designed to provide more practical information on the application of legislation, provides indications of where post-legislative scrutiny may be important.
41. One overarching issue that has arisen during our scrutiny of sentencing guidelines is the complexity of the criminal law. Nicola Padfield, University of Cambridge, described for the Committee one of the challenges facing sentencers:
“the law rightly says and completely properly says, you get sentenced on the law which applied when you did your crime. This means we cannot just learn the law today, we have to know yesterday’s, and the day before, and people are being released under systems for crimes they committed and were sentenced for a few years ago.”59
She concluded:
“We live in a nightmare world of criminal justice. I had not thought I was going to say this but maybe it is an opportunity to say yet again, yes, we do need a criminal code and we do need a sentencing code and a code of criminal procedure.”60
The Magistrates’ Association were also interested in simplification of criminal legislation, although sceptical that it could be achieved effectively: “Please, no more Acts, no more
57 On 20 May 2009 the House agreed changes to its Standing Orders to enable parliamentary scrutiny of National Planning Statements. This procedure has some similarities with the consideration of draft sentencing guidelines such as external timetabling pressures. 58 House of Lords, Report of the Select Committee on the Constitution, Relations between the executive, the judiciary and Parliament, Session 2007-08, HL Paper 177 59 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 14 60 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 14
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legislation. Although in principle codification would be wonderful, I do not think it would be done in the way that everybody would wish.”61
42. Scrutiny of guidelines might also suggest the need for post-legislative scrutiny of a particular area of legislation. CTC, the national cyclists’ organisation, commented on the draft guideline for offences of causing death by driving: “The draft SGC [Sentencing Guidelines Council] guideline proposals are generally sensible given the legal anomalies within which they must operate.”62 One potential issue with the legal framework was brought to light by public opinion research commissioned by the Sentencing Advisory Panel on sentencing for these offences. The sentencing guideline for Causing Death by Driving covers four offences:
• Causing death by dangerous driving (maximum 14 year custodial sentence);
• Causing death by careless driving whilst under the influence of alcohol or drugs (maximum 14 year custodial sentence);
• Causing death by careless driving (maximum five year custodial sentence);
• Causing death by driving: unlicensed, uninsured, disqualified (maximum two year custodial sentence).
The maximum sentences set in legislation may suggest a hierarchy of seriousness for the offences, with the longest maximum sentence the most serious. In research focus groups people distinguished between a deliberate choice to drive whilst disqualified where somebody died, even if the standard of driving was not in question, and careless driving where someone died, which was conceptualised as a tragic error.63 There is therefore a potential mismatch between public and legislative assessment of seriousness in these offences.
43. A further element to sentencing guidelines and post-legislative scrutiny is the extent to which a sentencing guideline accords with legislative intention. The Sentencing Guidelines Council is required to consider when drawing up guidelines: a) the need to promote consistency in sentencing, b) the sentences imposed by courts in England and Wales for offences to which the guidelines relate, c) the cost of different sentences and their relative effectiveness in preventing re- offending, d) the need to promote public confidence in the criminal justice system, and
61 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 27 62 Justice Committee, Consultation Sentencing Guideline: Causing Death by Driving, Oral and Written evidence, 4 March 2008, HC (2007-08) 407-i, Ev 21 63 Justice Committee, Consultation Sentencing Guideline: Causing Death by Driving, Oral and Written evidence, 4 March 2008, HC (2007-08) 407-i, Q 27
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e) the views communicated to the Council […] by the [Sentencing Advisory] Panel. 64
We have found consistently when reviewing different sentencing guidelines that the cost and relative effectiveness in preventing re-offending of different sentences and the need to promote public confidence in the criminal justice system present difficulties. We consider further in chapter four issues relating to these. We hope that over time our scrutiny of sentencing guidelines will contribute to the broader debate of how to reach effective sentencing solutions, thereby meeting the expectations of Parliament, victims and the public.
44. Parliament sets the framework for sentencing in legislation. Sentencing guidelines are a key element to how this legislation works in practice. It is vital that Parliament, representing the public voice, contributes to sentencing guidelines as they are produced and in doing so identifies the crucial issues of public confidence and the effectiveness of sentencing. We are convinced this is compatible with safeguarding the crucial discretion of sentencers to impose a sentence tailored to the individual case.
45. We are concerned that, all too often, political debates about sentencing descend into a counter-productive competition as to who can appear toughest on crime, measured by sentence length. A select committee works on the basis of consensus and we are less likely to fall foul of the temptation to ‘out-tough’ each other in our consideration of sentencing guidelines or to confuse length of sentence with effectiveness.
46. On the basis of our experience with sentencing guidelines, we have found that a spotlight on an individual sentencing guideline can illuminate broader concerns and issues in relation to the criminal justice system. We will continue to review sentencing guidelines in the wider context, seeking thereby to enhance the quality of scrutiny of criminal justice policy and legislation. This is an entirely different process from judgments on individual cases.
64 Criminal Justice Act 2003, Section 170
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4 The crucial elements for scrutiny
Cost and relative effectiveness of sentencing 47. The Sentencing Guidelines Council is required to have regard when framing sentencing guidelines to the cost of different sentences and their relative effectiveness in preventing re-offending. The first problem this presents is that preventing re-offending is only part of the five purposes of sentencing set out in the Criminal Justice Act 2003, and that these purposes themselves are consistent neither with each other nor with sentencing guidelines.
Seeking a consensus as to the purpose of sentencing 48. The Criminal Justice Act 2003, described by the Ministry of Justice as “the principal sentencing statute,”65 sets out five purposes of sentencing, to which any court dealing with an offender must have regard: a) the punishment of offenders, b) the reduction of crime (including its reduction by deterrence), c) the reform and rehabilitation of offenders, d) the protection of the public, and e) the making of reparation by offenders to persons affected by their offences.66
We note that these five purposes of sentencing are not the same as those matters the Sentencing Guidelines Council is required to consider when drawing up sentencing guidelines.
49. Professor Ashworth raised difficulties with those five purposes:
“I think it was a mistake to put them where they are, for two reasons. First of all, because they are contradictory I think it is very difficult to pursue two of them in particular cases, and I think giving the court the choice rather than having a hierarchy of purposes is a mistake in itself, but, more importantly, I cannot see how it is consistent with the idea of sentencing guidelines because if you have sentencing guidelines you cannot possibly have judges or magistrates deciding which purpose they will pursue today.”67
Professor Ashworth is supported by David Faulkner, Senior Research Associate at the University of Oxford and a former senior home office civil servant, who commented: “there is no recognition of the differences between them [the purposes of sentencing set
65 HC Deb, 28 October 2008, col 726 66 Criminal Justice Act 2003, Section 142 67 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 1
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out in the Criminal Justice Act 2003] or of the implications of those differences”68. Professor Mike Hough struggled with the logic of the five purposes:
“They also bear a very strange relationship to each other in that there is a sort of logical relationship between punishment as a purpose and punishment as a process of justice. Criminal law implies punishment. The other four objectives are things that one might pursue within the envelope of punishment.”69
50. The Government also seems to struggle with the five purposes of sentencing it set out in the Criminal Justice Act 2003. The Secretary of State for Justice and Lord Chancellor, in a speech accompanying a policy statement as to how the Government deals with offenders, stated “We should not shy away from the fact that the sentences of the court are first and foremost for the punishment of those who have broken the law”.70 This may suggest that the purposes of sentencing set out in the Criminal Justice Act 2003 were meant to be in a hierarchy, but the title of the Government’s policy statement, Punishment and Reform, takes the first and third in the list.71 This confusion over the purposes of sentencing may reflect confusion over the purposes of the criminal justice system as a whole.
51. The lack of consensus as to the principles of sentencing leads to a lack of consensus in application. Professor Hough told the Committee: “In terms of sentencing principles, sentencers all seem to be highly attached to proportionality”.72 Thus sentencers prioritise the punishment purpose, in the principle of proportionality, that the punishment should fit the crime. Rt Hon Lord Justice Laws embodied this perception when he described the courts’ “paradigm function in sentencing, which is the execution of retributive justice.”73 The Magistrates’ Association similarly suggested that while the aim of punishment is a constant in sentencing, others may be less integral: “Not all sentences are designed to reform—that is one of the purposes of sentencing—there is always a punishment element.”74
52. The prioritisation of the aim of punishment by sentencers may reflect the concept that the punishment of sentencing has a different function than other aims, for example rehabilitation. David Faulkner split the purposes of sentencing into three:
• first the declaratory and retributive, to condemn an individual’s behaviour and to punish, the test of whether justice has been done;
68 Faulkner, D., ‘the reform of sentencing and the future of the criminal courts’, in Rethinking Sentencing, a report from the Mission and Public Affairs Council, Church House Publishing, 2004, p.9 69 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 1 70 Rt Hon Jack Straw MP, Secretary of State for Justice and Lord Chancellor, ‘Punishment and Reform’, Speech to Royal Society for the Arts, 27 October 2008 71 Ministry of Justice, Punishment and reform: our approach to managing offenders, December 2008 72 Q 2, Oral Evidence on Sentencing Commission, 14 October 2008 73 Rt Hon Lord Justice Laws, ‘the future of sentencing: a perspective from the judiciary’, in Rethinking Sentencing, a report from the Mission and Public Affairs Council, Church House Publishing, 2004, p.67 74 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2007-08) 1098-i, Q 18
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• second the utilitarian and instrumental purpose, to protect the public and reduce crime through for example imprisonment to control the offender and rehabilitation to prevent future crime;
• the third the reparative, to repair the damage done.
He comments “it has historically been the practice, to see the court as concerned with the retributive function […] and the executive, principally the prison and probation services, as responsible for the instrumental function.”75 On such as basis, the court’s key purpose would be to send a signal in a way the public understand that the individual has been found to have done wrong. However, how a sentence is carried out (for example through imprisonment or community) would be determined on the basis of instrumental purposes. This will be discussed further in Justice Reinvestment.
53. Meanwhile other actors in the criminal justice system prioritise different purposes of sentencing. Victim Support note the value of consistency; something the Sentencing Guidelines Council has to have regard to when drawing up sentencing guidelines, though it is not a purpose of sentencing:
“we pick up that they [victims] would like to see some consistency so the expectations can be real and can be managed, some transparency around the system, explanations, where they are due and available, as to why certain sentences were passed and others not, and, I suppose, an overwhelming need for some sense of fairness.”76
Victim Support also emphasised the importance of rehabilitation:
“what we absolutely know around victims, and that is that what they want, apart from the impossible, which is to be put back in time to where it did not happen in the first place, is for it not to happen again”.77
Nacro considered the potential conflicts between aims of reducing re-offending and of proportionality: “if we simply were to look at it from the point of view of what would reduce offending without any element of proportionality, then it would not be a system of justice.”78 Nacro concluded that reducing re-offending should take primacy:
“it does not do anyone any good to sentence an offender to a penalty that is more likely to result in re-offending and, therefore, more likely to result in distress and loss to future victims, simply because the court is asking: what is the sentence that will punish the offender sufficiently?”79
75 Faulkner, D., ‘the reform of sentencing and the future of the criminal courts’, in Rethinking Sentencing, a report from the Mission and Public Affairs Council, Church House Publishing, 2004, pp 7-8 76 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC ( 2007-08) 649-i, Q 22 77 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC ( 2007-08) 649-i, Q 15 78 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC ( 2007-08) 649-i,Q 14 79 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC ( 2007-08) 649-i, Q 13
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54. In contrast to sentencers’ prioritisation of the aim of punishment, achieving the reparative purpose of sentencing appears to be hampered by ineffective systems and inadequate resources. Victim Support suggest that the systems for compensation actually made the experience of crime worse:
“Because of the people that we are seeking to get the compensation from, it is very difficult to be able to get the amount of money that actually equates to what we might call reparation, certainly not restitution. I think to some extent as well it can, in its current form, prolong the experience of the crime, because piecemeal payments over a period of time merely prolong the agony to some extent, and sometimes for very small sums of money, and there is a burden currently on the victim to decide whether to pursue that option or not.”80
Helen Leney, Acting Manager of the restorative justice service Thames Valley Statutory Adult Restoration Service (TVStars), suggests that restorative justice approaches may be a way to achieve the reparative aim of sentencing: “Restorative justice looks at what harm has been caused and how that harm can be repaired”.81 Victim Support supported the notion of restorative justice but emphasised that it must be an offer, not an imposition, on the victim and that the offender must also be willing for it to be a positive experience for the victim.82 Whilst incorporating restorative justice into a sentencing system presents challenges, these do not seem insurmountable; Helen Leney quoted a letter from the Bench Chair of her local Magistrates which said:
“As sentencers in the Thames Valley, we are extremely concerned that we are about to lose a much valued option in our courts to make restorative justice a specified active requirement also, as a consequence, denying the wishes of victims in a significant number of cases.”83
A greater challenge may be in providing restorative justice services consistently across the country: “there is absolutely no reason why restorative justice cannot be rolled out across the whole country, indeed I think it should be, but it has got to be funded, and that is a big problem.”84
55. There are doubts that some of these five purposes of sentencing can be achieved at all. We heard evidence from RoadPeace, the Royal Society for the Prevention of Accidents (RoSPA) and the Crown Prosecution Service (CPS) on sentencing offences of causing death by driving; all of these doubted that sentencing had a general deterrent effect in death by driving cases. RoadPeace commented: “We do not think that increasing the sentences
80 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC ( 2007-08) 649-i, Q 29 81 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 29 82 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non- dwelling), 3 June 2008, HC ( 2007-08) 649-i, Q 27 83 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 44 84 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 46
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for causing death by driving has any deterrent effect. No-one expects to be in a fatal crash let alone responsible for one.”85 RoSPA concurred:
“I think sentencing does send out a message about acceptable and unacceptable behaviour. I do not believe that it provides any sort of road safety deterrent. I do not believe that it affects the behaviour of the driving public. […]I do not think we should kid ourselves that if we see very consistent, strict sentences being handed down for people who kill on the road that that is going to result in an improvement in driver behaviour.”86
One possible explanation is that prevention of crime (including its prevention by deterrence) is not a purpose of sentencing with regard to these specific offences. The CPS considered the characteristics of the offenders for example: “It may be an appalling piece of driving but they are frequently people who do not have a lengthy criminal record.”87 Therefore, rather than deterrence, the sentence might involve “a large element of condemnation”.88 This might therefore support the concept that sentencers choose from the different purposes of sentencing depending on the circumstances of the case, but this then comes into conflict with those matters which sentencing guidelines should have regard to, including consistency and effectiveness in preventing re-offending.
56. There are also doubts about whether particular types of sentencing can meet the purposes set out in the Criminal Justice Act 2003. We heard criticisms in particular about short custodial sentences (usually taken to mean sentences of imprisonment of 12 months or less). Paul Cavadino, Chief Executive of Nacro, said:
“I personally cannot see a great deal of point in short prison sentences. They have a containment effect which is very limited because the period is short, they are not long enough for any serious rehabilitation attempt, they are long enough often for an offender to lose their home or lose their job, if they have got one, which makes them more likely to reoffend, and short sentence prisoners have by far the highest reconviction rate […]. It seems to me that there is little point in repeatedly using short prison sentences which imprison people in overcrowded prisons and neither rehabilitate them nor deter them.”89
Nicola Padfield, from the University of Cambridge, meanwhile questioned whether short custodial sentences achieved any aims of sentencing:
“We still live in a rather tedious sentencing world of custody, community penalty, fine, as though a short custodial sentence is always a ‘tougher’ penalty than a community penalty however tough. We have to do an awful lot of thinking in terms
85 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 43 86 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Qq 41-42 87 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 68 88 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 68 89 Oral Evidence on Consultation Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June 2008, HC (2007-08) 649-i, Qq 6, 11
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of creating better alternatives for sentencing which involve not thinking that once you have crossed the custody threshold we are into the tougher sentences; actually those short custodial sentences we all know are ineffective on most measures of effectiveness, whatever your measures of effectiveness are.”90
On this basis, if sentencing guidelines are framed with regard to the relative effectiveness of different sentences, we would expect to see few guideline proposals for short custodial sentences.
57. The confusion and lack of clarity as to the purposes of sentencing makes it difficult to consider sentencing in terms of effectiveness, as it is not clear what takes precedence in terms of effective sentencing. There are also consequences in terms of the lack of public confidence. Ian Loader, Oxford University, commented:
“The crisis of the penal system in England and Wales is testament to the fact that it lacks a coherent public philosophy, a story about why and whom, what way and how much, we punish that can really connect with public thinking about crime and society.”91
We consider public confidence in sentencing in more detail below.
The cost of sentencing 58. The Sentencing Guidelines Council is required to have regard to “the cost of different sentences and their relative effectiveness in preventing re-offending” when framing sentencing guidelines.92 We have seen above the difficulties that arise in considering the effectiveness of different sentences. Our experience with sentencing guidelines suggests that considering the costs of different sentences is also problematic.
59. Questions about costs and sentencing are controversial ones. The debate over the merits of a new sentencing body was originally motivated by a desire to manage the size, and therefore cost, of the prison population (and other correctional resources such as probation services). Accordingly, when asked in January 2008 what policies were in place to reduce overcrowding in prisons, the Secretary of State for Justice and Lord Chancellor stated:
“We have established a working group chaired by Rt Hon Lord Justice Gage which will look at Lord Carter of Coles’ proposals for a Sentencing Commission in England and Wales. Experience from other jurisdictions suggests that such an approach can mean the drivers behind the prison population can be addressed and managed in a transparent, consistent and predictable manner.”93
90 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 10 91 Loader, I., ‘Straw’s embrace of penal excess ignores the public will’, The Guardian, 28 October 2008 92 Criminal Justice Act 2003, Section 170; this duty is replicated in the Coroners and Justice Bill for the proposed Sentencing Council for England and Wales. 93 HC Deb, 21 January 2008, col 1679W
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Yet, a year later, the Lord Chancellor contradicted this, stating: “The creation of a Sentencing Council has no direct impact on the prison population. This is because there is no requirement in the Coroners and Justice Bill for a sentencer in an individual case to have regard to resources.”94 The change in position may be motivated by concerns over one part of the debate about costs and sentencing—whether an individual judge should have to consider availability of resources when determining the appropriate sentence in an individual case.
60. Rt Hon Lord Judge is unequivocal: “It would be absolutely catastrophic if any individual sentence had to be tailored to resources.”95 Nicola Padfield, University of Cambridge, held a similar point of view, saying: “Nobody could seriously be suggesting that judges and magistrates should have a cap on the number of people they could send to prison.”96 However, there have been questions about whether lack of resources are in reality, if not as a matter of policy, affecting sentencing; in March 2008 Napo (the Trade Union and Professional Association for Family Court and Probation Staff) reported: “It is clear from this study that restrictions are being placed on sentencers across the country as to what conditions they can add to community orders.”97 This supports what John Thornhill, Magistrates’ Association, told the Committee a year earlier:
“It is clear that one of the problems is […] a lack of programmes available. Magistrates would use community based penalties with programmes that are tailored to the individual needs of offenders. […] but very often we do not have programmes which adequately address their needs. […] That is a matter of resourcing […] we would use a wider range of community based penalties so that we can tailor them to the individual, but they are not there, and that is one of the difficulties.”98
61. There is however a completely separate question about whether decisions as to sentencing policy and the overall sentencing framework should be made with an awareness of what different sentences cost. Sentencers themselves are amongst those calling for a debate on this matter. Rt Hon Lord Phillips of Worth Matravers, then Lord Chief Justice, has stated: “The scale of sentences is now largely determined by Parliament. Where within that scale the facts of a particular offence fall is the judge’s task. Parliament should, when altering that scale, have regard to the resource implications of the changes that are proposed.”99 Rt Hon Lord Judge similarly commented:
“There is of course a public interest in the use of resources. You are responsible for that. […] You, as Parliament, [should be addressing] the fact that when you introduce and agree to legislative change relating to sentencing, somebody needs to
94 HC Deb, 5 February 2009, col 1402W 95 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 16 96 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 3 97 Restrictions on Sentencing, A briefing from Napo the Trade Union and Professional Association for Family Court and Probation Staff, 11 March 2008 98 Justice Committee, Fifth Report of Session 2007-08, Towards Effective Sentencing, Oral and Written Evidence, 26 June 2007, HC (2007-08) 184-II, Qq 97-98 99 Rt Hon Lord Phillips of Worth Matravers, ‘How important is punishment?’, speech to the Howard League for Penal Reform, 15 November 2007
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work out what the cost is likely to be. Somebody needs to say ‘This will cost us two new hospitals, five new schools, proper armour for our servicemen’.”100
62. Professor Hough and Professor Ashworth also saw benefits in considering the costs of sentencing. Professor Hough for example pondered:
“It is certainly not desirable for there to be a completely unplanned and uncontrolled upward drift in sentencing, which is what we saw between 1991 and 2003. I think some considered view of whether we are spending enough on particular forms of punishment is better than nothing at all, which is what has characterised the period up to now.”101
Professor Ashworth similarly considered: “the idea that there is economic pressure on sentencing exerts some beneficial effect if it makes people think.”102 The type of thinking Professor Ashworth was talking about was in relation to “priorities” and taking a look at groups of offences and considering whether they are “sentenced higher than they should be relative to others.”103
63. The Sentencing Commission Working Group would have been an opportunity to consider whether and how the overall legislative framework for sentencing should take into account costs. It stated:
“the question of whether or not the overall sentencing framework should be tied to financial resources is a political issue. How Parliament’s intentions on criminal justice policy should be kept consistent with the capacity of the prison and probation services to deal with sentenced offenders is pre-eminently a political matter.”104
Nevertheless, the Working Group made a number of recommendations for a new sentencing body to provide resource assessments of sentencing guidelines and legislative or policy proposals from Government that would affect the capacity of prison and probation services. The Coroners and Justice Bill makes provision on the basis of these recommendations. The Working Group also recommended that “Parliament should express its intentions with regard to correctional resources at regular intervals.”105
64. Rt Hon Lord Woolf suggested a slightly different approach, whereby sentencers would be able to determine different sentences that would meet the appropriate aims, and then take cost into consideration as to which of these should be imposed: “The judge should
100 Oral Evidence taken before the Justice Committee on Sentencing Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 16 101 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 7 102 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 8 103 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 8 104 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An evolutionary approach, July 2008, paragraph 1.3 105 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An evolutionary approach, July 2008, paragraph 9.14
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know how much the sentences that he is imposing will cost the public. That is a very relevant matter. If there is a suitable, cheaper option he should choose it.”106
65. Implementing such an approach would require dealing with limitations in available data. Professor Ashworth summarised the difficulties: “The effectiveness of sentencing is something we need to know about, but again we do not have reliable figures. Even on cost it is very difficult to get absolute comparisons which everyone agrees with. In terms of effectiveness, if we are talking about re-convictions over a given period, we do not really have up-to-date information on that which compares like with like.”107
66. The five aims of sentencing set out in the Criminal Justice Act 2003 are neither internally coherent nor consistently applied. It is not clear whether the aims are intended to be a hierarchical list or a menu to be combined differently in different cases. It is not clear how the purposes of sentencing relate to, or should be reflected in, sentencing guidelines. As a result, the public, criminal justice organisations, victims, sentencers and the Government all have different expectations as to what sentencing is trying to achieve—suggesting that someone, inevitably, will be disappointed.
67. It is set out in statute that sentencing guidelines should be drawn up with regard to the cost of different sentences and their relative effectiveness. This does not conflict with the duty of the sentencer to determine the sentence appropriate to the individual case. We acknowledge that this is made difficult by the lack of clarity as to the purposes of sentencing, because there is no clear and consensual standard as to how effectiveness should be determined. However, this aspect must have greater prominence in the development of sentencing guidelines. We will therefore prioritise it for scrutiny.
Public confidence in sentencing 68. The Sentencing Guidelines Council is also required to have regard to the need to promote public confidence in the criminal justice system when framing guidelines. The lack of clarity as to what sentencing is trying to achieve is one issue that may hinder public confidence in sentencing. Our experience of reviewing sentencing guidelines has also suggested that public confidence may suffer from a lack of authoritative, contextualised information about sentencing.
The sentencing knowledge gap 69. Professor Mike Hough, King’s College London, identified a “substantial knowledge gap” in public knowledge about sentencing.108 He observed: “People think you do not get
106 Home Affairs Committee, Towards Effective Sentencing, Oral and Written Evidence, 17 April 2007, HC (2006-07) 467- i, Q 49 We are also looking in our Justice Reinvestment inquiry at initiatives designed to promote discussion, involvement and understanding among sentencers of the availability and quality in their areas of community sentences and restorative justice schemes. 107 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 10 108 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 1
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sent to prison for lots of offences—and you do.”109 He described the difference in perception and reality in relation to sentences for causing death by dangerous driving: “If you ask people what they thought the offender would get, 31% said prison, and in reality the best estimate is ‘pretty certain prison’: 95% of people convicted of that offence get a prison sentence.”110
70. Professor Hough thought that the knowledge gap about sentencing was part of more general misconception about crime trends. He stated that two-thirds of people in England and Wales believe that crime is going up and that this proportion has remained consistent although levels and types of crime have fluctuated.111 Accordingly, regardless what level of criminality is taking place: “People approach sentencing with this background belief that crime is inexorably on the rise.”112
71. Professor Hough described a similar gap in public attitudes towards sentencing. He stated: “if you ask people, ‘are judges and magistrates tough enough?’ […] Most people, four out of five, think judges and magistrates are too soft”. 113 As with the perception of crime, Professor Hough suggested that attitudes had not changed when practice had, saying that this proportion “has been remarkably consistent since we first devised this question in 1995 or 1996 […] despite that fact that prison population over the last 15 years has risen by a very substantial amount and a significant factor underlying that increase is the toughening up of judges’ sentencing”. 114
72. Professor Hough’s proposition as to why perceptions of crime and sentencing did not change in line with practice was “because people are insulated from what the courts do”.115 The Local Crime: Community Sentence project confirms this view. As part of these interactive presentations by sentencers and probation, members of the public are given mock-up newspaper reports, and asked to choose an appropriate sentence. They are then given more information about the offence, the offender and the potential options for dealing with them and again asked to choose an appropriate sentence. 49.5% of those who initially felt a prison sentence was appropriate did not believe this once they had more detailed information than was present in a newspaper report.116 The Magistrates’ Association commented on this project:
109 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 32 110 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 1 111 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 1 112 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 1 113 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 1 114 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 1, 4 115 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 10 116 Garside, R., What the public really thinks about community sentences, London: Centre for Crime and Justice Studies, 2006
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“We do find that whenever we do one of these presentations, you may start off with a group of the public of whatever age and type who begin with a fairly harsh approach but, once you have gone through the sentencing structure and the various options available, it is quite staggering how they reduce their feeling and realise that there are really effective penalties that do not involve immediate custody.”117
73. We heard that it is not only the general public but also those directly affected by crime whose attitudes changed when provided with more information. Helen Leney, Acting Manager of the restorative justice service TV STARS (Thames Valley Statutory Adult Restoration Service), talked about how having more information about what an offender was doing on his or her community sentence can make a difference to victims:
“A lot of victims feel, particularly for a violent offence, that if the offender is not sentenced to custody then they have got off, whereas if they come to one of these meetings [restorative justice conference] and hear from the probation officer exactly what they [the offender] are doing in their community sentence, that is very reassuring for victims.”118
74. Professor Hough pointed out that, when asked to consider the questions a court must consider rather than general questions as to the state of sentencing, people tolerate sentences “pretty much in line with what happens.”119
“The best example of that is a question asked over successive British crime surveys: a 23-year-old burglar with two previous convictions for burglary breaks into a bungalow in daytime and steals electrical goods, and respondents in the BCS [British Crime Survey] are asked ‘What would he have got?’ and ‘What should he have got?’ On ‘What would he have got?’ roughly one-third […] say ‘Prison’ and on ‘What should he have got?’ nudging two-thirds say ‘Prison’. What would he actually have got? This guy is somebody who has actually been swept into the ‘three strikes and you are out’ provisions for burglary and, unless there are exceptional circumstances, the judge should pass a three-year sentence.” 120
75. People who worked with victims told us that there was a crucial need for more information about sentencing to get to victims. Helen Leney, of the restorative justice service TV STARS told us: “One of the most distressing things that victims would say was, ‘Nobody told me anything’. I saw one young man who the first thing he knew of a sentence having been passed was when he read about it in the local paper with his name in it.”121 RoadPeace described the practical difficulties of really understanding what a sentence
117 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 16 118 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 30 119 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 10 120 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 10 121 Oral Evidence taken before the Justice Committee on Draft Sentencing Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 34
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means and of families of victims not getting information about whether an offender had appealed against sentence and what would happen next. 122
76. Others identified the information gaps preventing an informed public debate about sentencing. The Magistrates’ Association state: “There is insufficient reliable evidence either from academic research or sentencing data to allow informed comment to be made on the current sentencing process.”123 Their concerns were validated by a pilot study seeking to collect information using court records on sentencing practice in England and Wales. The pilot concluded that some important (and basic) information, such as aggravating and mitigating factors or previous convictions, was likely to be unavailable, making it difficult to understand the different factors that led to a particular sentence being imposed.124 RoadPeace sought evidence as to the effectiveness of different types of sentencing. It had not opposed the use of community sentences for appropriate cases of the new offence of causing death by careless driving, but felt strongly that its use “should be evaluated […] to show that it is not just a cheap option. Bereaved families need to know that it is an effective one.”125
77. In June 2009 the Sentencing Advisory Panel published research into public attitudes to the principles of sentencing, as part of their work drawing up advice to the Sentencing Guidelines Council on the revision of the sentencing guideline: overarching principles.126 This research considered a variety of issues in relation to public attitudes and sentencing. Its findings included that people were twice as likely to support than to oppose courts taking the cost of different sentences into consideration and that perceptions of the relative importance of the different aims of sentencing varied according to the specific case. The research concluded however that it was difficult to accommodate public opinion into consideration of the principles of sentencing until misconceptions that courts were lenient had been addressed.
78. The proposals for a new unitary Sentencing Council contained in the Coroners and Justice Bill lay new duties on this organisation with regard to information gathering and dissemination. The new body must monitor the operation of its sentencing guidelines, assess the resources required as it develops sentencing guidelines and publish each year an assessment of the sentencing and non-sentencing factors that will impact on prison spaces and probation workloads. It must also publish information on sentencing at a local level and may promote awareness of sentencing at a national level. The impact assessment for these clauses in the Coroners and Justice Bill includes additional analytical staff at the Sentencing Council and some administrative staff in larger courts for data collection if required.127 The impact assessment also states that Judicial and Court costs are “not
122 Justice Committee, Consultation Sentencing Guideline: Causing Death by Driving, Oral and Written evidence, 4 March 2008, HC (2007-08) 407-i, Ev 19 123 The Magistrates’ Association response to the Sentencing Commission Working Group Consultation on a Structured Sentencing Framework and Sentencing Commission, 30 May 2008 124 Dhami, M.K. and Souza, K.A., Study of Sentencing and its outcomes: pilot report, Ministry of Justice Research Series 2/09, February 2009 125 Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Causing Death by Driving, 4 March 2008, HC (2007-08) 407-i, Q 54 126 Sentencing Advisory Panel, Public Attitudes to the Principles of Sentencing, Research Report 6, June 2009 127 www.justice.gov.uk/publications/docs/coroners-justice-bill-ia-sentencing-council.pdf
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included as will be absorbed”.128 The Sentencing Commission Working Group conducted a short survey of ten Crown Court centres to consider the feasibility of collecting some of the basic information that would be needed; it concluded “we believe it would be necessary to consider the additional burden on judges and any consequent effect on the operation of the courts.”129
79. Professor Hough felt that any new sentencing organisation could play an important part in correcting public misinformation about sentencing. He said:
“In most common-law industrialised countries there seems to be a fairly systematic form of misinformation amongst the public about sentencing practice. It is very clear that in this country people are cross and angry about how the courts treat offenders—but also systematically misinformed in that they have no idea how tough we are on burglars and robbers or rapists.[…] The Ministry of Justice or the Home Office are probably not the bodies to tell the public that the picture is not as dire as they fear, because they will not be believed. But an independent sentencing commission or council could adopt that function.”130
80. We are convinced by the evidence that public attitudes towards sentences change depending on whether people are asked abstract questions about leniency or given details of a situation and asked about the appropriate sentence. When given enough information to understand a sentence, people support sentencing at a level similar to current sentencing practice. We conclude that sentencing policy should not be determined on the presumption that the public find current sentencing too lenient. Public confidence would be better served by ensuring and then demonstrating that sentencing is effective in preventing people from being victims of crime in the future.
81. Even if more people are sent to prison for longer, people will not necessarily be convinced that sentences are in fact increasing in length. It is also not necessarily what the public wants. Pursuing a sentencing policy based on a misconception of what people want is not intelligent, appropriate or sustainable. More worryingly, it may result in more people being victims of crime in the future and less confidence in the criminal justice system.
82. It has been a settled principle of the development of sentencing guidelines for over a decade that their formulation should have regard to the cost of different sentences and their relative effectiveness in preventing re-offending and the need to promote public confidence in the criminal justice system. In our experience, these aspects are both crucial and difficult to capture. We will therefore continue to pursue these aspects in our work on sentencing guidelines.
83. Sentencing policy needs to consider not only the cost of sentencing, but its cost effectiveness, measured in terms of its ability to prevent people from being victims of more crimes in the future. At the same time, sentencing policy and sentencing in
128 www.justice.gov.uk/publications/docs/coroners-justice-bill-ia-sentencing-council.pdf 129 Sentencing Commission Working Group, Sentencing Guidelines in England and Wales: An Evolutionary Approach, July 2008, para 5.4 130 Oral Evidence taken before the Justice Committee on the Sentencing Commission, 14 October 2008, HC (2007-08) 1095-i, Q 18
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individual cases are influenced by the public’s entirely understandable wish to have an outcome from a conviction which recognises the level of seriousness with which society regards such a crime. This statement of seriousness and disapproval is almost always seen as something which can only be achieved by a prison sentence, or by a longer custodial sentence than for other crimes with which it is compared. Newspaper reports of trials, often including interviews with victims’ families, frequently attest that the sentence was not long enough, or should have been custodial rather than community- based, without regard to whether the custodial or longer sentence would be more effective—or at all effective—in preventing further crimes after release. This problem will continue to have a powerful effect on public confidence in sentencing, and on the response of sentencers, unless ways can be found of combining within a sentence a clear signal as to the seriousness of the offence and a rational assessment of how effective the sentence will be in preventing further crimes. We intend to give this issue further consideration in our forthcoming report on Justice Reinvestment.
84. The added value we can bring by reviewing sentencing guidelines is hampered by the poor standard of information available on the costs of different sentences and on measures of effectiveness of different sentences. It is unacceptable that basic information such as what factors led to a particular sentence being imposed in a particular case is not collected and made available. We recommend that the Government as a matter of urgency commit to identifying information on sentencing that is crucial and put in place a structured plan to collect and publish this data.
85. We welcome therefore the provisions for information collection, analysis and dissemination in the proposals for a new Sentencing Council for England and Wales. However, we are worried that in practice, such issues may turn out to be peripheral considerations for the Sentencing Council. The Government has demonstrated, as detailed in our report Towards Effective Sentencing, an inability to ensure that sentencing policies are resourced so that they may be effectively implemented. We are concerned that, as one example, the impact assessment for the Sentencing Council ignores costs that may be incurred by the judiciary. We recommend that the Government ensures that structures for data collection on sentencing are adequately resourced both at a national and local level.
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Conclusions and recommendations
Introduction 1. Our experience of scrutinising sentencing guidelines to date has made it clear to us that there are key areas that require much closer consideration in both the development and scrutiny of sentencing guidelines. First is the cost of different sentences and their relative effectiveness, in other words what works in terms of achieving the purposes of sentencing. Second is the need to promote public confidence in the criminal justice system. We identify these as priorities for future scrutiny of sentencing guidelines; at the same time we explore some of the difficulties in embedding these principles in the development of sentencing guidelines. (Paragraph 4)
Democratic and Judicial Voices 2. Parliament sets the framework for sentencing in legislation. Sentencing guidelines are a key element to how this legislation works in practice. It is vital that Parliament, representing the public voice, contributes to sentencing guidelines as they are produced and in doing so identifies the crucial issues of public confidence and the effectiveness of sentencing. We are convinced this is compatible with safeguarding the crucial discretion of sentencers to impose a sentence tailored to the individual case. (Paragraph 44)
3. We are concerned that, all too often, political debates about sentencing descend into a counter-productive competition as to who can appear toughest on crime, measured by sentence length. A select committee works on the basis of consensus and we are less likely to fall foul of the temptation to ‘out-tough’ each other in our consideration of sentencing guidelines or to confuse length of sentence with effectiveness. (Paragraph 45)
4. On the basis of our experience with sentencing guidelines, we have found that a spotlight on an individual sentencing guideline can illuminate broader concerns and issues in relation to the criminal justice system. We will continue to review sentencing guidelines in the wider context, seeking thereby to enhance the quality of scrutiny of criminal justice policy and legislation. This is an entirely different process from judgments on individual cases. (Paragraph 46)
The crucial elements for scrutiny 5. The five aims of sentencing set out in the Criminal Justice Act 2003 are neither internally coherent nor consistently applied. It is not clear whether the aims are intended to be a hierarchical list or a menu to be combined differently in different cases. It is not clear how the purposes of sentencing relate to, or should be reflected in, sentencing guidelines. As a result, the public, criminal justice organisations, victims, sentencers and the Government all have different expectations as to what sentencing is trying to achieve—suggesting that someone, inevitably, will be disappointed. (Paragraph 66)
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6. It is set out in statute that sentencing guidelines should be drawn up with regard to the cost of different sentences and their relative effectiveness. This does not conflict with the duty of the sentencer to determine the sentence appropriate to the individual case. We acknowledge that this is made difficult by the lack of clarity as to the purposes of sentencing, because there is no clear and consensual standard as to how effectiveness should be determined. However, this aspect must have greater prominence in the development of sentencing guidelines. We will therefore prioritise it for scrutiny. (Paragraph 67)
7. We are convinced by the evidence that public attitudes towards sentences change depending on whether people are asked abstract questions about leniency or given details of a situation and asked about the appropriate sentence. When given enough information to understand a sentence, people support sentencing at a level similar to current sentencing practice. We conclude that sentencing policy should not be determined on the presumption that the public find current sentencing too lenient. Public confidence would be better served by ensuring and then demonstrating that sentencing is effective in preventing people from being victims of crime in the future. (Paragraph 80)
8. Even if more people are sent to prison for longer, people will not necessarily be convinced that sentences are in fact increasing in length. It is also not necessarily what the public wants. Pursuing a sentencing policy based on a misconception of what people want is not intelligent, appropriate or sustainable. More worryingly, it may result in more people being victims of crime in the future and less confidence in the criminal justice system. (Paragraph 81)
9. It has been a settled principle of the development of sentencing guidelines for over a decade that their formulation should have regard to the cost of different sentences and their relative effectiveness in preventing re-offending and the need to promote public confidence in the criminal justice system. In our experience, these aspects are both crucial and difficult to capture. We will therefore continue to pursue these aspects in our work on sentencing guidelines. (Paragraph 82)
10. Sentencing policy needs to consider not only the cost of sentencing, but its cost effectiveness, measured in terms of its ability to prevent people from being victims of more crimes in the future. At the same time, sentencing policy and sentencing in individual cases are influenced by the public’s entirely understandable wish to have an outcome from a conviction which recognises the level of seriousness with which society regards such a crime. This statement of seriousness and disapproval is almost always seen as something which can only be achieved by a prison sentence, or by a longer custodial sentence than for other crimes with which it is compared. Newspaper reports of trials, often including interviews with victims’ families, frequently attest that the sentence was not long enough, or should have been custodial rather than community-based, without regard to whether the custodial or longer sentence would be more effective—or at all effective—in preventing further crimes after release. This problem will continue to have a powerful effect on public confidence in sentencing, and on the response of sentencers, unless ways can be found of combining within a sentence a clear signal as to the seriousness of the offence and a rational assessment of how effective the sentence will be in preventing
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further crimes. We intend to give this issue further consideration in our forthcoming report on Justice Reinvestment. (Paragraph 83)
11. The added value we can bring by reviewing sentencing guidelines is hampered by the poor standard of information available on the costs of different sentences and on measures of effectiveness of different sentences. It is unacceptable that basic information such as what factors led to a particular sentence being imposed in a particular case is not collected and made available. We recommend that the Government as a matter of urgency commit to identifying information on sentencing that is crucial and put in place a structured plan to collect and publish this data. (Paragraph 84)
12. We welcome therefore the provisions for information collection, analysis and dissemination in the proposals for a new Sentencing Council for England and Wales. However, we are worried that in practice, such issues may turn out to be peripheral considerations for the Sentencing Council. The Government has demonstrated, as detailed in our report Towards Effective Sentencing, an inability to ensure that sentencing policies are resourced so that they may be effectively implemented. We are concerned that, as one example, the impact assessment for the Sentencing Council ignores costs that may be incurred by the judiciary. We recommend that the Government ensures that structures for data collection on sentencing are adequately resourced both at a national and local level. (Paragraph 85)
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Annex A – Evidence and Witnesses
Justice Select Committee Sentencing Guidelines Website: http://www.parliament.uk/parliamentary_committees/justice/justice_committee_sentenci ng_guidelines_page.cfm
Oral evidence and the Committee’s comments on the following sentencing guidelines can be found on this site:
Sentencing Guidelines: Principles of Youth Sentencing: 5 May 2009 Sally Ireland, Chair, Standing Committee for Youth Justice and Katy Swaine, Legal Director, Children’s Rights Alliance for England
Sentencing Guidelines: Fraud (statutory offences): 5 May 2009 Professor Michael Levi, University of Cardiff
Consultation Sentencing Guideline: Theft and Burglary (Non-dwelling): 3 June 2008 Paul Cavadino, Chief Executive, Nacro, Gillian Guy, Chief Executive, Victim Support and Rosina Robson, Policy Advisor, Federation of Small Businesses
Consultation Sentencing Guideline: Causing Death by Driving: 4 March 2008 Professor Mike Hough, Institute for Criminal Policy Research, King’s College London; Amy Aeron-Thomas, Executive Director, RoadPeace and Kevin Clinton, Head of Road Safety, RoSPA; Chris Newell, Principal Legal Adviser, Crown Prosecution Service
Sentencing Guidelines (including Magistrates’ Court Sentencing Guidelines): 22 January 2008 Nicola Padfield, Faculty of Law, Cambridge University; Sir Igor Judge, President of the Queen’s Bench Division and Head of Criminal Justice; Cindy Barnett, Chairman, Magistrates’ Association, Nicola Stell, Chairman of the sentencing Policy and Practice Committee, Magistrates’ Association, Tan Ikram, President, London Criminal Courts Solicitors’ Association, and Greg Powell, Immediate Past President, London Criminal Courts Solicitors’ Association.
Draft Sentencing Guidelines: Assaults: 23 October 2007 Cindy Barnett, Chairman, Magistrates’ Association and Bruce Houlder QC, Criminal Bar Association; Helen Leney, Acting Manager, Thames Valley Statutory Adult Restoration Service
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Sentencing Commission On 14 October 2008 the Justice Select Committee took oral evidence in a one-off session on proposals for a Sentencing Commission from Professor Andrew Ashworth QC, Oxford University, and Professor Mike Hough, Institute for Criminal Policy Research, King’s College London http://www.publications.parliament.uk/pa/cm200708/cmselect/cmjust/1095/08101401.ht m
Justice Select Committee Report Towards Effective Sentencing http://www.publications.parliament.uk/pa/cm200708/cmselect/cmjust/184/18402.htm
Home Affairs Select Committee Page on Sentencing Guidelines (situation prior to 9 May 2007) http://www.parliament.uk/parliamentary_committees/home_affairs_committee/sentencin g_guidelines.cfm
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Annex B – Definitive sentencing guidelines published by the Sentencing Guidelines Council
9 December 2008131
Theft and Burglary of a building other than a dwelling
Breach of an Anti-Social Behaviour Order
15 July 2008
Causing Death by Driving
12 May 2008
Magistrates’ Court Sentencing Guidelines
(Update 1 issued 15 July 2008, update 2 issued 9 December 2008)
20 February 2008
Assaults and other offences against the person
Overarching Principles: Assaults on children and Cruelty to a child
29 November 2007
Fail to surrender to bail
20 July 2007
Reduction in Sentence for a Guilty Plea (Revised, original guideline published December 2004)
30 April 2007
Sexual Offences Act 2003
7 December 2006
Breach of a Protective Order
Overarching Principles: Domestic Violence
25 July 2006
Robbery
131 Definitive sentencing guidelines are available at: http://www.sentencing-guidelines.gov.uk/guidelines/council/final.html
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28 November 2005
Manslaughter by Reason of Provocation
16 December 2004
New Sentences: Criminal Justice Act 2003
Overarching Principles: Seriousness
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Appendix A: Letter from the Secretary of State for Justice
Coroners and Justice Bill: Sentencing Council Thank you for your letter of 3 March about the proposals in the Coroners and Justice Bill which place a duty on the Sentencing Council to consult the Justice Select Committee before issuing guidelines. I welcome your support for the intent behind the Government amendments. You raise a number of questions about how the new consultation process will work in practice.
I should start by saying that whilst the Bill set out the duties on the Sentencing Council, the Council will of course be an independent body and it is, as is normal for such a body, free to regulate its own proceedings. It would not be appropriate for me to give undertakings about how the independent Council will operate in meeting its statutory duties .
I would say however that there has been widespread support for replacing the two existing bodies with a single Sentencing Council. As you know the then Lord Chief Justice in July 2007 gave evidence to the Select Committee suggesting that the process for producing guidelines was too slow and the two stage consultation was unwieldy. As he rightly pointed out that process is partly a legacy of the way that the statutory guidelines system has developed. There is also a strong recommendation in the report of the Working Group, chaired by Rt Hon Lord Justice Gage, to bring the two existing bodies and their functions under one Council. The Government agrees this is a sensible approach.
I do believe that the role of the Select Committee in scrutinising guidelines is an important one which is why I have put the need to consult the committee on the face of the Bill. The proposed statutory consultation requirements are of course minimum requirements. The proposals do not stop the Council consulting at an earlier stage in the process if they wish to do so (something which the then Lord Chief Justice also suggested to the Committee back in 2007).
So whilst I do not want to suggest any interference on my part in the running of this new body I would expect the Council to provide a full opportunity and an appropriate period for any consultees to respond. I would also expect that the Council itself would wish to discuss with you practical arrangements for informing and consulting the Select Committee.
Rt Hon Jack Straw MP Secretary of State for Justice and Lord Chancellor 23 March 2009
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Formal Minutes
Tuesday 23 June 2009
Members present:
Sir Alan Beith, in the Chair
David Heath Dr Nick Palmer Douglas Hogg Andrew Turner Jessica Morden Andrew Tyrie Julie Morgan Dr Alan Whitehead Alun Michael
Draft Report (Sentencing Guidelines and Parliament: building a bridge), proposed by the Chairman, brought up and read.
Ordered, That the Chairman’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 85 read and agreed to.
Annexes and Summary agreed to.
A Paper was appended to the Report as Appendix A.
Resolved, That the Report be the Sixth Report of the Committee to the House.
Ordered, That the Chairman make the Report to the House.
Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.
[Adjourned till Tuesday 30 June at 4.00 pm
Reports from the Justice (previously Constitutional Affairs) Committee since Session 2006–07
Session 2008-09 First Report Crown Dependencies: evidence taken HC 67 Government response HC 323 Second Report Coroners and Justice Bill HC 185 Government response HC 322 Third Report The work of the Information Commissioner: appointment of a HC 146 new Commissioner Government response HC 424 Fourth Report Work of the Committee in 2007-08 HC 321 Fifth Report Devolution: A Decade On HC 529
Session 2007-08 First Report Protection of Private Data HC 154 Government response HC 406 Second Report Work of the Committee in 2007 HC 358 Third Report Counter Terrorism Bill HC 405 Government response HC 758 Fourth Report Draft Constitutional Renewal Bill (provisions relating to the HC 698 Attorney General) Fifth Report Towards Effective Sentencing HC 184 Government response Cm 7476 Sixth Report Public Appointments: Lord-Lieutenants and High Sheriffs HC 1001 Government response Cm 7503 Seventh Report Appointment of the Chair of the Office of Legal Complaints HC 1122 Government response HC 342
Session 2006–07 First Report Party Funding HC 163 Government response Cm 7123 Second Report Work of the Committee 2005-06 HC 259 Third Report Implementation of the Carter Review of Legal Aid HC 223 Government response Cm 7158 Fourth Report Freedom of Information: Government’s proposals for reform HC 415 Government response Cm 7187 Fifth Report Constitutional Role of the Attorney General HC 306 Government responses Cm 7355 and HC 242 (2007-08) Sixth Report The creation of the Ministry of Justice HC 466 Government response HC 140 (2007-08) First Special Report Party Funding – Oral evidence from the Lord Chancellor on the HC 222 role of the Attorney General Second Special Report Scrutiny of Constitutional Reform HC 907