Select Committee on Constitutional Affairs Minutes of Evidence


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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