Select Committee on Home Affairs Written Evidence

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 and predictability.


  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".


  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.


  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.


5.1  Justice

  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.

5.3  Rehabilitation

  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 release.

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.

5.6  Summary

  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 be:

    —    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 sentencing.

    —    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

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