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] 1 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 3 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. 5 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 6 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