Examination of Witnesses (Questions 1-19)
CINDY BARNETT
AND BRUCE
HOULDER QC
23 OCTOBER 2007
Chairman: Welcome, Ms Barnett, Mr Houlder.
We are very glad to have you with us for our work on sentencing
and sentencing guidelines in particular. We just have to declare
any interests before we start.
Robert Neill: I shall declare an interest,
Chairman, as a currently non-practising member of the Bar.
Chairman: As you know, we are formally
involved in the sentencing guidelines process and particularly
value your advice, even though you will have been involved in
just about every other stage of this process as well, but there
is nothing like hearing directly from you.
Robert Neill: Perhaps I should be even
more explicit, Chairman. I am a member of the Criminal Bar Association.
I am still paying my subs but I am not active.
Q1 Dr Whitehead: I am afraid I have
nothing to declare. The Sentencing Guidelines Council, when it
was looking into assaults, took a different view and approach
to common assault from other offences when they set out when thresholds
might be passed to use fines, community sentences or a sentence
of custody. Do you think that was a helpful approach or do you
think it was perhaps rather more confusing than clarificatory?
Cindy Barnett: At first sight
it was a little difficult to see why it had been done, but in
actual fact, yes, we do think it is quite helpful, simply because
of the vast variety of offences that can come under that heading
and be charged under that heading, and, therefore, to have had
a guideline that produced a somewhat narrower description could
actually have been too prescriptive or possibly be seen as that.
So, on the whole, yes, having got used to it, we think it is quite
helpful.
Q2 Dr Whitehead: Do you think it
would improve consistency or decision-making as to when custody
is particularly appropriate, bearing in mind the wide nature of
the offence?
Cindy Barnett: I am not sure that
I would say that this particular guideline—no, not this
particular guideline, because, as I say, it covers a very wide
range of offences—is even designed to do that. It 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.
I know that is very obvious, but I think it is particularly pertinent
in this particular case.
Q3 Dr Whitehead: It is an offence
of violence, even though it can take into account situations where
no injuries are actually sustained?
Cindy Barnett: Yes.
Q4 Dr Whitehead: Indeed, that relates
to an earlier discussion that we had about, you might say, intention
and outcome, and I imagine that then produces particular pressures
for sentencers when they are sentencing what might be called very
low-level violent offenders. What would you think are those pressures
and how do sentencers consider those?
Cindy Barnett: I am not sure that
I think there are particular pressures to do with common assault.
It is always a difficult responsibility, but the general guidance
that we have from, first of all, statute and then all the Sentencing
Guidelines Council guidelines to date is extremely helpful. We
define seriousness in terms of culpability and harm, and it is
that assessment of seriousness that leads us to the level of sentencing,
first provisionally and then finally. That remains the case, whether
or not it is this or any other, and I do not think it is any more
difficult in terms of common assault.
Q5 Dr Whitehead: A question perhaps
for Mr Houlder: why do you think there has been a reduction in
the use of fines in sentencing common assault and do you think
the consultation guidelines might affect this?
Bruce Houlder: So far as sentencing
in the magistrates' court is concerned, I have certain difficulties
about the approach. I do not think it is helpful to be too prescriptive
when it comes to common assault. I do not think that the courts
should approach sentencing for small sentences—that is to
say sentences of less than 12 months—with a starting point
of custody. I do think the court should approach any case of common
assault, as opposed to assault occasioning actual bodily harm,
for a first time adult offender who has pleaded not guilty, on
the basis that some other approach to sentencing is a starting
point. That is my position on this and the position of the Criminal
Bar Association. There are so many methods that one can use, alternatives
to punishment, before embarking on a sentence of imprisonment.
I know the guidelines say that where two aggravating features
are present then the custody threshold is crossed and when it
is just a spontaneous assault a fine is all that is required,
but it is the custody threshold that I have a problem with, not
the fining. I did not actually know that there had been a reduction
in the level of fines being imposed in those cases.
Q6 Dr Whitehead: The suggestion is,
therefore, that in terms of the reduction of fines, as it were,
the thought as to what is a spontaneous assault may be changing.
Bruce Houlder: Yes, I think that
cases of road rage, for example, which are spontaneous assaults,
should be clarified as aggravated assaults. It depends what, as
you say, spontaneous assault means. I think there is a case, because
of prevalence, for sentencing guidelines to say that that is a
particularly aggravating feature, an assault committed in those
circumstances, where all of us who drive are potentially exposed
to it, but on the whole I think we know what we mean by spontaneous
assault. A push in the chest, for example, if someone falls over
and hurts themselves, not terribly serious but might have one
or two aggravating features. For a first-time offender it does
seem to me that prison is wholly inappropriate in such cases,
in fact positively damaging, not only for the offender but for
the community as a whole in the long run.
Q7 Mrs James: Coming to the difference
between ABH and GBH, can you explain what you think is an appropriate
approach to sentencing ABH, in particular the appropriate custodial
sentences, et cetera?
Bruce Houlder: First of all, I
think the sentencing process should not be used as a matter of
routine to correct under charging. By that I mean cases that should
be charged as assault occasioning actual bodily harm are sometimes
charged as common assault and the sentencer then takes account
of the injury, the actual bodily harm, when it comes to passing
sentence. Similarly, cases that are really serious bodily injury
are sometimes charged as actual bodily harm and then the sentencer
takes account of the level injury in sentencing. So, first of
all, I think the charge has to be the right charge. To ask about
definitions, assault occasioning actual bodily harm means any
harm however slight, and that can mean a bruise. Indeed, there
is a case that says a single bruise is enough to amount to actual
bodily harm. I know the Crown Prosecution Service's sentencing
standards do not set it that low, but the reality is that is what
a jury would be told if they were given a definition of common
assault. Grievous bodily harm is really serious bodily injury,
which just means what it says. It does not have to be life-threatening
but it has to be what normal, ordinary people would think was
really serious. So within that range there are a huge range of
ranges of harm, if that is proper English, if you understand what
I mean. Therefore, it is very difficult to set absolutes when
it comes to sentencing. So far as the Sentencing Guidelines Council
are concerned in their proposals for sentence, I think they have
got it about right, I am bound to say. I am not quite sure they
have put in road rage on the aggravating features, but subject
to that I think they have it about right.
Q8 Mrs James: I have got particular
concerns about the safety of the public, for example; you were
talking about the seriousness of a bruise in particular. I have
actually been involved in a case where there was no serious damage
but the young person who ended up being attacked actually said:
"What did you want? Did you want my eye to be hanging out?"
He was attacked by a glass bottle in a bar and absolutely nothing
happened: the person was given a community charge. It does not
give the public a sense of safety.
Bruce Houlder: I can give an even
more extreme example of that. I have had a report from a court
somewhere in the north of England where a person kicked a man
without any provocation, so much so that he is an epileptic for
life. He was charged with assault occasioning actual bodily harm.
When the case came for trial, for reasons which do not concern
this Committee, an offer was made of a plea to common assault,
which was accepted. So, the definition of a crime is an important
starting-point, if I can use that expression, into which these
sentences must fit; otherwise one finds oneself trying to pass
a sentence which fits the level of harm which is not reflected
in the crime.
Q9 Mrs James: Could that possibly
lead to shorter sentences and the problems there are with shorter
sentences in particular issues?
Bruce Houlder: If there is under
charging there will obviously be shorter sentences, yes.
Q10 Mrs James: Are there any particular
concerns that you have about short sentences? Are they effective?
Are they a useful tool?
Bruce Houlder: I am not sure I
would be in the best position to judge that. Over the years I
have come to be convinced that short sentences of imprisonment
do comparatively little good. They are not constructive and—this
is perhaps a political answer—public resources would be
better placed in reforming offenders of that kind rather than
sending them to prisons which do not reform. Certainly short sentences
have no chance of reforming offenders.
Q11 Mrs James: A question to both
the witnesses. What are your concerns about community sentences?
Do you think that things can be done to make them more effective?
Cindy Barnett: Greater resources.
I think they can be extremely effective, I think they are extremely
useful for the right person, obviously, at the right level of
seriousness, but we do have a general concern that they are not
properly resourced and that that will get worse rather than better,
and that is a real problem; but over the sentences themselves,
no, I think we have a wide range of requirements that we can put
into a community order and I think they can be extremely effective.
Bruce Houlder: Yes. I sit on the
National Probation Board's London committee and this is the constant
cry. It is resources. Judges are entitled to be very constructive,
when it comes to sentencing, in designing community orders to
fit offenders but the money and the manpower resources for those
schemes are simply not available and, even if they are theoretically
available, the monitoring is inadequate because the people who
are working for the service are grossly overworked and cannot
see the offenders as frequently as perhaps they should be seeing
them; so there is a problem there which needs to be addressed.
Again, it is outside this Committee's powers perhaps.
Q12 Mrs James: In the sentences that
the courts are issuing it appears to me that there may be patterns.
If there is alcohol abuse, et cetera, there may be patterns of
offending. Do you think that we are doing enough to address those
and are we taking into consideration when we are actually sentencing
people the circumstances of the offence?
Bruce Houlder: I think so. The
whole question of dangerousness and seriousness is very closely
addressed according to set standards and criteria. I do not have
the medical or other knowledge to say whether those are helpful
or not, but certainly it is addressed now in a structured and
scientific way which does seem to me to be extremely sensible.
What reports on offenders now lose, I think, is the discussion
which gets to grips with much more personal factors in the individual's
make-up, which is left rather to the lawyer to unearth rather
than the pre-sentence report. I think they have become a little
formulaic in their approach to offenders.
Cindy Barnett: Can I pick that
up and say that I am not sure I entirely agree with that. It is
true that they are formulaic in layout, certainly a fast-delivery
report, but having said that, there have been cases—I am
sure Mr Houlder would agree—where there have been extremely
lengthy details about past background that are simply not relevant
to the offence; so I think it is swings and roundabouts in actual
fact. The essential thing is that we as sentencers are given the
precise information that we need and sufficient information. If
that is to do with drug misuse or alcohol dependency, then that
is absolutely crucial. We do have the tools at our command with
alcohol treatment, mental health treatment, drug treatment requirements
that can be put in place, but, again, you come back to the fact:
are they available and, if they are available, are they going
to be properly followed through, through resources, and that becomes
even more important.
Q13 Chairman: Is that in general
or specific? Obviously all magistrates will have a concern about
the availability both of non-custodial provision and, indeed,
of custody as well.
Cindy Barnett: Yes.
Q14 Chairman: But does that apply
to the extent that the magistrate is sitting with the guidelines
in one hand, and a mental assessment of what is available in his
locality in the other hand, so that his attitude to the guidelines
is affected by his awareness of how good the community sentence
operations in his area are?
Cindy Barnett: No, that certainly
is not the case. Of course we need to be generally aware—greater
information is an extremely useful tool—but there must be
the basic principle that, once we have assessed that something
is seriousness enough for a community penalty, once we have assessed
what requirements are needed, we should go on and impose that
sentence if at all possible. If, of course, probation then turn
round and say, "I am sorry, that is simply not available",
for whatever reason, first of all we would be extremely upset
and would wish to take it up elsewhere, but it would be elsewhere.
From the point of view of the actual sentencing, it would be a
question of finding the most appropriate possible sentence, but
that is highly unsatisfactory and, as a general principle, and
it is a principle, the resources ought to be available to meet
what is necessary in terms of the seriousness of the offence.
Q15 Robert Neill: Can I pick up on
that last point. I have sympathy with where we are coming from,
but you make the point of assessing whether the offence is serious
enough to warrant a community penalty?
Cindy Barnett: Yes.
Q16 Robert Neill: Do we perhaps not
face the problem, in terms of public perception, that a community
penalty is not regarded as serious? How do we persuade the public
it actually is a serious option? I suspect the political (with
a small P) pressure on sentencers is to say a community penalty
is the softer, inaccurate but tabloid journalist type of speak,
option? How do we actually bridge that gap and make the public
think that actually a community penalty is a serious thing?
Cindy Barnett: I would say there
is a great deal of public education that needs to be done. It
would help a great deal if there were consistent messages from
both government and the media, rather than the usual, "So
and so walks free", whenever there is anything that is not
immediate custody, which is definitely misleading. From the point
of view of public engagement, there are programmes underway, and
highly successful ones: both the Magistrates in the Community
Programme and the extension of it, Local Crime Community Sentence,
which is specifically designed to raise awareness of the effectiveness
of community penalties. That sort of thing, I think, should be
better resourced and should be given more publicity. We certainly
try our best to do that, because 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.
Q17 Robert Neill: I notice that the
average custodial sentence for ABH in the magistrates' court is
about four months, which I think we would probably agree is too
short to have any real rehabilitative work done. Do you think
that is partly because there is a pressure to be seen to do something,
so to speak, or is it the lack of alternative, the fact that there
are previous convictions or where that particular type of ABH
comes in the scale that you feel that the violence is such that
only custody, even a short one, can merit it?
Cindy Barnett: I am not quite
sure. I am sorry, I think there is more than one point in that.
If we are dealing with ABH, then obviously we cannot go beyond
six months and, in many cases, it has already been set—
Q18 Robert Neill: Clearly, yes, that
is right. So, if someone has pleaded, if you have given any discount,
you clearly would not be sentencing at the top of the scale.
Cindy Barnett: Yes. It is possible
for it to be six months if we actually discount from a notional
nine, but I would refute the suggestion, if, indeed, that was
implied by what you say, that we would give that amount rather
than anything else because of lack of confidence or because of
a lack of resources. The proper approach, and one that we genuinely
follow, is that of structured decision-making and finding the
right sentence. If that sentence turns out to be one of comparatively
short custody, I would also challenge the fact that it is not
effective, because how do we define effective? Not all sentences
are designed to reform—that is one of the purposes of sentencing—there
is always a punishment element. There are other elements in sentencing
as well, and I do not think it is realistic to say that a short
period of custody should be knocked out altogether, because otherwise
what do you do to deal with persistent low-level offenders or
those who you reach a custody threshold and you actually step
back or you might want to send it up but you are prepared to deal
with it? I am aware that we do not agree on this.
Bruce Houlder: Persistent low-level
offenders can go to prison, because there comes a time, does there
not? We are talking about starting points here for people who
are of previous good character.
Q19 Robert Neill: You underline persistent,
by the sounds of it, in your answer.
Bruce Houlder: Yes, there comes
a time when other methods have failed.
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