13. Memorandum submitted by
the Home Office
SUMMARY
1. This memorandum provides an update on
changes to policy and practice since the Committee's Third Report
of 1997-98, "Alternatives to Prison Sentences" (HC 486);
outlines the provisions of the current sentencing framework including
the implementation of the sentencing provisions of the Criminal
Justice Act 2003; describes the Government's proposals in its
consultation document "Making Sentencing Clearer" and
includes some statistical information on sentencing trends.
Update on "Alternatives to Custody"
2. All of the recommendations in the Home
Affairs Select Committee report, "Alternatives to Prison
Sentences" have been taken forward wholly or in part.
3. The measures taken by the Government
since 1998 addressing issues raised in the "Alternatives
to Prison Sentences" report include the introduction of a
new sentencing framework, contained in the Criminal Justice Act
2003, which provides sentencers with a more flexible community
order that can be tailored to the individual offender and offence.
Drug treatment and electronically monitored curfews are more widely
available and enforcement of community orders has improved dramatically.
The National Probation Service is meeting the requirement of National
Standards in around 92% of cases that breach action is taken within
10 working days of an unacceptable failure to comply. A Community
Payback scheme has been introduced to promote the use of unpaid
work by offenders and to give local communities a say in what
kinds of work offenders should do in their neighbourhood. A new
suspended sentence order has been introduced for a wider number
of cases. The 1998 Crime and Disorder Act introduced reforms that
provided for reparation and/or restorative justice to be part
of all youth justice disposals, including final warnings, referral
orders, reparation orders, action plan orders and supervision
orders. A National Enforcement Service has been established to
improve fine collection and the efficient execution of warrants.
Research has been published on the impact of correctional services"
interventions on re-offending and more information is available
to sentencers about sentencing patterns and outcomes of sentences.
4. Annex A provides more detailed updates
on five areas of particular interest in the "Alternatives
to Prison Sentences" report: women offenders; drug treatment;
unpaid work; offender management and restorative justice.
Sentencing provisions of the Criminal Justice
Act 2003
5. The Criminal Justice Act 2003, given
Royal Assent on the 20 November 2003, introduces wide changes
to sentencing principles and the sentencing powers of the courts.
6. The Act includes key principles to guide
the Court when determining the seriousness of the offence and
the severity of the resulting sentence. The court must consider
the offender's culpability in committing the offence and any harm
which the offence caused, was intended to cause or might forseeably
have caused. Previous convictions (where they are recent and relevant)
should be treated as an aggravating factor when determining sentence
severity.
7. In particular, in deciding whether an
offence merits a custodial sentence:
"The court must not pass a custodial sentence
unless it is of the opinion that the offence, or the combination
of the offence and one or more offences associated with it, was
so serious that neither a fine alone nor a community sentence
can be justified for the offence." (Criminal Justice Act
2003, section 152(2)).
8. The main sentencing provisions of the
Act can be summarised as:
— Purposes of sentencing: for the first
time the purposes and principles of sentencing have been put into
statute. These are: to protect the public, punish the offender,
reduce and deter crime and reform and rehabilitate the offender.
— Statutory aggravating factors: the
seriousness of an offence (and thus the severity of the resulting
sentence) should be increased if the offender demonstrates hostility
based upon the victim's race, religion, sexual orientation or
disability. For racial and religious aggravation this re-enacts
previous legislation but the provision related to disability and
sexual orientation is new.
— Firearms: a minimum sentence of five
years for possession or distribution of prohibited weapons or
ammunition, the maximum penalty is 10 years imprisonment.
— Sentencing Guidelines Council: established
a Sentencing Guidelines Council which is responsible for producing
comprehensive guidelines for the full range of criminal offences
to help remove uncertainty and disparity in sentencing and give
representatives of the police, prisons, probation and victims
a voice in sentencing for the first time.
— Community sentences: the Act replaced
the various kinds of community sentences with a single community
order with a range of requirements. The court can choose from
the 12 different requirements, such as unpaid work and alcohol
treatment, to make up a bespoke community order.
— Suspended Sentence Orders: replaced
old suspended sentences. They are much more demanding than old
suspended sentences and more widely available. An offender will
have requirements to fulfil in the community, as in a community
sentence. If an offender breaches the requirements the presumption
will be that the suspended prison sentence is activated.
— Public protection sentences: Imprisonment
for public protection (IPP) and the Extended sentence for public
protection (EPP) for dangerous offenders. The IPP sentence provides
for release to be at a date determined by the Parole Board. The
Court will set a minimum term which will be served before the
Parole Board considers whether it is safe to release the offender.
After release, the offender remains on licence for at least 10
years. The EPP sentence will be for a specified period in the
same way as for any other determinate sentence, though it must
be for at least 12 months. The court must specify a custodial
period and an extension period (during which the offender will
remain on licence). From the halfway point of the custodial period
the offender may be released if the Parole Board determines it
is safe to do so, but release will not be automatic until the
end of the custodial period. After release, the offender remains
on licence for the unexpired term of the original sentence (if
any) and for an extended period designated by the Court when imposing
sentence.
— Sentences over 12 months: For those
serving sentences over 12 months (apart from dangerous offenders)
release is automatic at the half-way point but offenders remain
on licence until the end of their sentence, thus serving it in
full.
— Murder provisions: the Act introduced
a statutory framework for setting tariffs for mandatory life sentences.
— Custody plus: The Act changes the
structure of short prison sentences. The new custodial sentences
of less than 12 months will consist of a short custodial period
of between two weeks and three months followed by a licence period
of at least six months. The court will be able to set requirements
similar to those available under a community order for the licence
period.
Implementation of Criminal Justice Act 2003 provisions
9. The Criminal Justice Act 2003 was given
Royal Assent on the 20 November 2003. The murder provisions in
the Act were implemented in December 2003. Most of the other sentencing
provisions were implemented on 4 April 2005 and apply to offences
committed on or after that date.
10. A pilot of intermittent custody for
both male and female offenders has been completed. The pilot showed
that whilst intermittent custody worked well in relation to weekend
provision there were issues about weekday use which mean the roll
out of the provisions would not represent the most effective use
of the custodial places at a time when the estate is under considerable
pressure. The Government will however keep the options for implementing
intermittent custody under review.
11. The Home Secretary announced on 20 July
2006, that the implementation of Custody Plus would not go ahead
in autumn 2006 because of the need to prioritise prison and probation
resources on more serious offenders.
12. The Government believes that it should not
implement Custody Plus until it is satisfied that sufficient resources
are available to allow it to proceed without adversely affecting
the management of offenders. The Government's decision to defer
custody plus, made as part of the Rebalancing the Criminal Justice
System in favour of the Law-abiding Majority review, reflected
the prioritisation of prison and probation resources towards more
serious offenders. The Government will keep the implementation
of custody plus under review.
Government's Sentencing Policy
13. The aim of the Criminal Justice Act
2003 was to create a sentencing framework in which the public
has confidence and which puts public protection at its heart.
14. Individual sentencing decisions are
of course a matter for judges and Magistrates in each case but
the Government believes that prison should be targeted on serious,
dangerous and violent offenders. The Home Secretary, Lord Chancellor
and Attorney General repeated this view in their joint note to
the National Criminal Justice Board. This note, as acknowledged
by the Lord Chief Justice reflected the current law. The Lord
Chief Justice and Senior Presiding Judge made the statement available
to judges and Magistrates in England and Wales. (A copy of the
statement is at Annex B.)
15. To ensure that prison places are available
for those who need to be sent to prison the Government announced
in the Rebalancing the Criminal Justice System review in July
2006 the creation of 8,000 new places by 2012. In total the capacity-building
programme will deliver 10,000 additional places by 2012.
16. The Government also believes that there
are people in our prisons who should not be there:
— some foreign national prisoners;
— vulnerable women and young offenders,
who need not be imprisoned;
— those for whom alternative mental
health interventions or treatment would be more appropriate. The
majority of non-violent offenders with low level disorders can
be treated in the community without any risk to the public; and
— those on remand for less serious
offences who can be tagged. Remand places should be focused on
those with the highest risk of re-offending and court processes
speeded up so those not yet convicted spend less time on remand.
17. The Government notes that statistics
indicate that sentencing has become tougher over the last decade,
with offenders more likely to get a prison sentence and that the
sentence is likely to be longer. The total number of offenders
sentenced to immediate custody for indictable offences increased
by 26% from 1995 to 2005.
The average custodial sentence length for indictable
offences in the Crown Court increased by 25% from 1995 to 2005
(from 20.8 months to 25.9 months). In the Magistrates' courts,
average custodial sentence lengths for indictable offences remained
stable between 2.7 months and 3.0 months over the period 1995
to 2005.
18. The Criminal Justice Act 2003 framework
was designed to achieve a better balance in the use of correctional
services by enabling custodial resources to be focused on dangerous
offenders by providing longer prison sentences for them while
providing tough new community orders for those who for whom prison
is not the most effective response. So far the evidence is that
the courts have made good use of the new sentences for dangerous
offenders. Early evidence suggests that sentencers are not handing
down shorter sentences for non-dangerous offenders (as reflected
in the guidelines about the new sentences issued by the Sentencing
Guidelines Council) have not, however, materialised. Early evidence
also suggests that, whilst some of the new Suspended Sentence
Orders are being used in cases which would otherwise have resulted
in a short custodial sentence, there are other SSO being used
in cases where a community order would be appropriate.
19. Following the significant increases
in recent years the Government now wants to see stability in sentence
lengths and the custody rate whilst also protecting the public
from the most dangerous offenders. The Government wishes to see
an increase in the use of non- custodial interventions.
20. The Government believes that there are
often better options than imprisonment for dealing with less serious
non-violent offenders. More of these offenders should be dealt
with through robust community sentences. Community orders are
often more challenging than a short period in custody for less
serious offenders. The community order allows sentencers to attach
requirements to the order to match the seriousness of the offence,
the risks posed by and the needs of the individual.
21. The evidence so far is that the courts
are not using community orders as fully as they might. The anticipated
switch to these new community sentences from short terms of imprisonment
that was envisaged has not happened but is a crucial part of the
package of sentencing reform the Government wishes to achieve.
22. The Government believes that probation
resources should be targeted at those that most need them—those
who need intensive supervision because they are dangerous or because
of their very high risk of re-offending. Less serious offenders
should be fined rather than given low-level community sentences.
These are now much better enforced, hit offenders in the pocket
and save the taxpayer money. The use of fines has decreased significantly
in the last 10 years (for indictable offences). Rebuilding the
use of the fine will avoid probation being overloaded by low-level
offenders serving community sentences. The Government would like
to achieve a greater use of fines at the expense of the community
order.
Sentencing Guidelines Council (SGC)
23. The Halliday Report, Making Punishment
Work (July 2001), recommended that the proposed new sentencing
framework would need to be supported by a clear code of sentencing
guidelines, to be observed by all criminal courts. The report
said that their purpose would be to guide the use of discretion,
"The framework advocated in this report depends on wise use
of discretion, which increases the importance of sound and comprehensive
guidelines". Lord Justice Auld in his Review of the Criminal
Courts of England and Wales (October 2001), strongly supported
the Halliday recommendation.
24. The proposals were incorporated in the
Criminal Justice Act 2003 and the Sentencing Guidelines Council
was established in March 2004. The Council has seven judicial
members, including a District Judge and a lay justice, and four
non-judicial members with experience of one or more of the following
fields: policing, criminal prosecution, criminal defence, and
the interests of victims.
25. Its remit is to produce guidelines for
all courts to promote greater consistency in sentencing, to take
into account cost-effectiveness and the need to promote public
confidence in the criminal justice system. All courts are required
to take the guidelines into account when sentencing offenders
and the court has to give reasons for departing from them in any
particular case.
26. The legislation provides for the Home
Secretary to ask the Council to frame or revise guidelines relating
to the allocation of cases between courts, a general matter affecting
sentencing, to a particular category of offenders, or relating
to a particular offence.
27. In the process of producing guidelines,
there is wide (statutory) consultation and the opportunity for
Government Ministers and for Parliament, through the Home Affairs
Select Committee, to contribute to the consideration of what should
be contained in the guideline. But the final decision is that
of the independent Council.
28. The process for developing guidelines
follows a number of stages: the Council identifies a particular
aspect of sentencing on which it considers guidelines are required;
advice is then commissioned from the Sentencing Advisory Panel;
the Panel publishes a consultation paper and seeks written submissions;
the Panel considers the responses to the consultation and submits
advice to the Council; the Council considers the Panel's advice
and drafts a guidelines, which is published for consultation—the
Panel's advice is also published at this point; the Council considers
the responses, makes any necessary revisions and then publishes
the definitive guidelines to which every court must have regard.
The Council keeps guidelines under review so that they can be
amended and developed as required.
29. Since beginning work in March 2004,
the SGC has produced seven definitive guidelines: Overarching
Principles: Seriousness; New Sentences: Criminal Justice Act 2003;
Reduction in Sentence for a Guilty Plea; Manslaughter by reason
of provocation; Robbery; Breach of a Protective Order; Overarching
Principles: Domestic Violence.
30. A final guideline on the offences in
the Sexual Offences Act 2003 is awaited and the Council is currently
consulting on a revised guideline on Reduction in Sentence for
a Guilty Plea.
31. In addition to those subjects where
draft or final guidelines have been published, the Sentencing
Advisory Panel has also consulted on the following issues:
— Assaults and other offences against
the person; Bail Act offences; theft from a shop; theft and dishonesty.
32. There are three SAP consultations currently
open:
— Death by driving offences; Offences
taken into consideration; Magistrates' Court Sentencing Guidelines.
Sentencing Consultation: Making Sentencing Clearer
33. Although the sentencing framework has
been considerably improved by the Criminal Justice Act 2003, the
Government believes there is more to do to ensure that the system
is clearer to the public and that we have the most effective policies
in place to ensure the public is protected.
34. The Government announced in the "Rebalancing
the Criminal Justice System in Favour of the Law-abiding Majority"
in July 2006 an intention to consult on a number of sentencing
issues. The consultation paper "Making Sentencing Clearer"
was published in November 2006.
35. The consultation covers six areas:
(1) Making sentencing clearer—ie how
determinate sentences are expressed so that the public understand
them.
(2) How the tariffs for indeterminate sentences
are calculated and expressed by judges.
(3) Making it possible for some determinate
sentenced prisoners to be held beyond the automatic halfway release
point where, in exceptional circumstances, they pose a risk to
the public.
(4) Giving offender managers the power to
deal with breach of a community order without going back
to a court.
(5) Reducing demands on probation resources
by less use of pre-sentence reports and community orders for low
level offences by agreement with courts, and legislation to make
community orders unavailable as a penalty for certain non-imprisonable
offences.
(6) Better information for courts on costs
and use of remand and the range of sentences available to the
courts.
36. The consultation period ran from November
2006 until 9 January. Some 80 responses were received (copies
of which have been made available to the Committee). The Government
is currently considering the responses.
15 March 2007
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