15. Memorandum submitted by
Professor Neil Hutton
In order to develop a rational and effective
sentencing policy it is necessary to establish a new institution.
While judges have an important role to play in developing sentencing
policy, there are many others whose expertise is useful. A Sentencing
Commission should be established with the power to draw up a comprehensive
set of sentencing guidelines. These should be sufficiently broad
to leave judges with an appropriate level of discretion to pass
just decisions in individual cases. The policy should be based
on an overall approach which prioritises fairness and pubic protection
and which is based on realistic assessments of the potential impact
of sentencing on re-offending. The policy should also be required
to deliver value for money in terms of the most effective use
of scarce correctional resources.
Sentencing in England and Wales can be characterised
as a system dominated by individualised sentencing. Judges have
very wide discretion to choose a sentence according to the facts
and circumstances of an individual case. This approach makes consistency
and predictability in sentencing very difficult to achieve, lacks
accountability and transparency and makes it difficult to explain
sentencing decisions to the public. Although the guideline judgements
of the Sentencing Guideline Council provide some guidance which
should promote greater consistency in sentencing, they are not
comprehensive and thus fail to address the problems of accountability
2. RISING PRISON
Although decades of research evidence show that
prisons have very little impact on crime rates, prison populations
are rising sharply not just in England and Wales but in most western
jurisdictions. There is now significant pressure on policy makers
to exert some control over these populations for fiscal reasons.
The development of sentencing policy has become highly politicised
to the extent that any attempts to articulate a rational policy
based on evidence carry a high risk of being represented in the
media as "soft" on crime. Political leadership in this
area is thus very difficult.
2.1 Explaining the Rise in Prison Populations
In England and Wales, the rise in the prison
population since the early 1990s can only be explained by a change
in judicial practices and not by a change in the level or seriousness
of crime. Judges have been sending more people to prison for longer.
This has not been an orchestrated campaign nor has it been the
product of new legislation. This can only be explained by a largely
unconscious judicial response to an increasingly punitive cultural
environment. The same has happened in other jurisdictions. The
prison population has in effect been "talked up".
3. DO THE
The evidence on the levels of public confidence
in sentencing is inconclusive. While there are plenty of surveys
showing a lack of public confidence and negative perceptions of
the judiciary and while there is an almost constant culture of
negativity in the media, there is also evidence which shows that
the public are not so punitive when they are better informed and
asked to make decisions about individual cases. In other words,
while politicians appear to feel that rational penal policy is
impossible, there is evidence which suggests that there is a measure
of public receptivity to rationality in penal policy. The resolution
of this impasse may require the construction of a new institution,
some sort of Sentencing Commission, which can remove some of the
political sting from penal policy making and allow wider public
involvement in the development of penal policy.
4. THE PRICE
Under the current system, correctional resources
are treated as if they were "free". "Justice has
no price" as the argument goes. But of course resources for
criminal justice are, and always have been, limited, as are all
resources. Choices about expenditure within the justice sector
and indeed between justice and other areas of government expenditure,
ought to be identified explicitly and properly debated, they should
not simply occur as a consequence of the sum of individual sentencing
decisions which, quite properly, have not taken correctional resources
into account. It is not rational to set limits on criminal justice
expenditure at the front end but set no limits on allocation decisions
at the back end. The result is a lack of capacity to plan for
the efficient and effective use of scarce correctional resources.
5. WHAT WOULD
Research shows that the public have a strong
sense of justice. Consistency is an important value in sentencing.
A similar offender should receive a broadly similar punishment
for a similar offence. One important function of a comprehensive
system of sentencing guidelines, such as those which operate in
many US states and have been recently proposed for New Zealand,
is to deliver a measure of consistency in sentencing. This also
helps sentencing to be transparent and accountable. Judges who
wish to depart from the guidelines can do so and explain their
reasons. Where there are no guidelines, it is difficult to see
how the public can have any assurance that sentencing delivers
consistency. A system of comprehensive sentencing guidelines provides
a framework based on the principles of justice which allow other
aims to be pursued.
5.2 Public Protection
England and Wales has for some time operated
on the principle that prison ought to be reserved for dangerous
violent and sexual offenders. No-one doubts that the public need
to be protected from the risk of serious harm, although there
is considerable debate about how to define this and how accurate
our current measures of risk assessment are.
Prison should not be the place of first resort
for rehabilitation. However if someone has to go to prison because
they have committed a very serious offence or because they have
been judged to present an unacceptable risk to public safety,
there should be a range of programmes available in prisons which
address the offending behaviour and prepare the offender for eventual
5.4 Community Sanctions
There is a wide range of community based sanctions
available to the courts. Evidence shows that these are somewhat
more effective than prison in reducing offending behaviour. However,
the "success rates" of these programmes rarely exceed
40%. Expectations that programmes should achieve much higher success
rates are unrealistic. There is no evidence to suggest that even
the best run, and most carefully targeted programmes can have
higher success rates. A moment's reflection on how hard it is
for any of us to change our behaviour in terms of alcohol use,
smoking, eating, will help to demonstrate why higher expectations
of offender programmes are unrealistic. Community sanctions are
first and foremost penal sanctions. Offenders suffer some loss
of liberty and intrusion in their lives even if they consent to
undergo a programme Having said that, a penalty will be more constructive
and a better use of public funds if it has a reasonable chance
of offering an offender some support in changing their behaviour.
It is therefore rational to seek to extend the use of community
sanctions as a cost effective alternative to imprisonment for
those offenders who do not need to be sent to prison. This is
an argument that will be hard to sell to the public but there
is research evidence to show that there is public support for
this constructive and cost sensitive approach to punishment.
5.5 Recidivist Minor Offenders
This category of offender presents a major challenge
to criminal justice. Currently many jurisdictions imprison such
offenders because of their persistence even though the instant
offence may not be sufficiently serious to justify imprisonment.
This results in the "revolving door" syndrome. Evidence
suggests that a significant number of these offenders have a range
of issues which make it extremely difficult for them to break
out of this cycle. Courts feel that imprisonment is inevitable
because alternatives have not "worked" or because the
persistence of the offending behaviour is viewed almost as a contempt
for the authority of the court. There is no easy answer to this
problem. In my view prison should be reserved only for people
who need to be there and repeat community based sentences, probably
some form of community service order, should be seen as the norm
for these recidivists.
This proposed sentencing framework is not in
principle far removed from the current approach in England and
Wales. Prison should be reserved for those offenders who either
deserve prison because of the seriousness of their offence or
because they present an unacceptable risk to the public of serious
harm. Less serious offenders should receive either a fine or a
community based sentence which is firstly, proportionate to the
seriousness of their offence and secondly which addresses their
offending behaviour. However as there is no systematic means of
implementing this framework, nor any meaningful way of monitoring
sentencing practice, the public have no idea whether it works.
The implementation of such a sentencing policy
is a separate question. For example, although there might be widespread
agreement that prison should be used "as a last resort",
there is likely to be just as widespread disagreement about what
this means in practice.
The main aims of a sentencing policy should
Within an overall framework
of proportionality, to ensure that the main penal aims of public
protection, deterrence, reparation and rehabilitation are pursued.
To ensure that there is a greater
element of consistency in sentencing
To allow sentencing decisions
to be explained more clearly to the public.
To clarify accountability in
To enable penal/correctional
resources to be allocated in a more cost effective manner.
6.1 An Independent Sentencing Commission
Parliament should establish an independent Sentencing
Commission to develop a comprehensive system of sentencing guidelines.
The Commission should be comprised of people with expertise in
sentencing and criminal justice. This will certainly include members
of the judiciary but will also include others such as prison governors,
police officers, representatives from voluntary sector criminal
justice bodies, victims' organisations, academics etc. The part
time commissioners will be supported by an administrative team.
The production of a set of comprehensive guidelines is a major
task and will require a significant commitment of resources, at
least initially. A representative from the executive should attend
the Commission as an observer to ensure that strong lines of communication
exist between the various branches of government.
6.2 Sentencing Guidelines
These guidelines will provide a framework which
will allow greater consistency and predictability in sentencing
while at the same time leaving a significant element of judicial
discretion to take into account the facts and circumstances of
individual cases. Judges should be permitted to depart from the
guideline range, providing they give reasons for their departures.
The guidelines need to be comprehensive (unlike the current system
of ad hoc guidelines) in order to allow proper forecasting of
the impact of the guidelines on the prison population. This will
enable public debate about sentence severity levels to take account
of the costs as well as the benefits of sentencing choices. This
approach has been operating in the state of Minnesota for over
twenty years and some version of this has been adopted by most
of the eighteen US states which have developed guideline systems.
A comprehensive approach also allows severity levels to be compared
and adjusted across all categories of crime and minimises the
risks of media criticism of guidelines produced for individual
types of offence.
The guidelines need not take the form of numerical
grids which have been used in the US. The New Zealand Law Commission
has recommended that guidelines in that jurisdiction follow the
model adopted by the Sentencing Advisory Panel in England and
Wales and it would seem sensible for this approach to be continued
in England and Wales.
6.3 Engagement with the Public
The terms of reference of the Commission should
require it to engage with the public through various techniques
including wide consultation, focus groups and deliberative polling.
An interesting example is the public education programme developed
by the Victoria Sentencing Commission in Australia called "You
be the judge" which involves conducting sentencing exercises
with school students and community groups. The Commission should
have a role in providing sentencing information for the public
and also for providing education and training for criminal justice
practitioners, including the judiciary.
5 March 2007