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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1098-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
DRAFT SENTENCING GUIDELINES: ASSAULT
Tuesday 23 October 2007 CINDY BARNETT and BRUCE HOULDER QC Evidence heard in Public Questions 1 - 53
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 23 October 2007 Members present Mr Alan Beith, in the Chair Mrs Siān C James Julie Morgan Bob Neill Dr Alan Whitehead ________________ Witnesses: Cindy Barnett, Magistrates' Association, and Bruce Houlder QC, Criminal Bar Association, gave evidence.
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. Bob 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. Bob 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. I think there are---. 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 Bob 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 Bob 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 and the Community Programme and the extension of it, Local Crime Community Sentence, which is specifically designed to raise awareness of community penalties. That short 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 Bob 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 Bob 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 Bob Neill: You underline persistent, by the sounds of it, in your answer. Bruce Houlder: Yes, there comes a time when other methods have failed. Q20 Bob Neill: Indeed, that is perhaps what we are looking at. The other thing I wanted to pick up on: you referred to under charging. Is that still a real problem in the system? Bruce Houlder: I do not think I am qualified to give an answer to that. There is a perceived wisdom, but that is not always the best informed of wisdoms. Q21 Bob Neill: I understand. It is a separate issue. I want to move to the SGC proposals on sentencing for attempted murder, Mr Houlder. I was interested in particular in the CBA's take on the proposal that the determinate sentence for attempted murder should be linked to the minimum tariff structure for the full offence. Is that a good or a bad thing? What are the ups and the downs of it? Bruce Houlder: I have taken the journey through the Sentencing Advisory Panel approach to it through to the Sentencing Guidelines Council and I have looked at the case of Ford, which, of course, the Sentencing Advisory Panel relied on. I can provide the Committee with a copy if they wish. There are significant quotes from that case in the SAP's consultation paper. The Sentencing Advisory Panel, of course, did not follow the guidelines approach to it, and I think the guidelines approach to it is a very seductive approach; it has certain logic to it to follow the tariff sentences, but there are also problems. First of all, it is one they highlight. It does not cater for a case which, if it had been homicide, would have been reduced on trial from murder to manslaughter by reason of provocation or on the grounds of diminished responsibility. There is no mechanism on sentencing on attempted murder to try that. A judge could have a Newton hearing, as it is called, I suppose, technically to decide whether, if it had been a murder trial, he would have been acquitted of murder, but that is the danger. It is starting to use the murder tariffs, schedule 21, guidelines as a starting point for attempted murder. Q22 Bob Neill: Would not a judge be able to depart from a 40% kick-off point if he thought, "This is clearly--- Bruce Houlder: Yes, he would, and it is, indeed, spelt out, it is fair to say, in the guidelines that they are allowed to take account of matters relating to provocation and mental illness of one kind or another. Certainly it is there, but the paper speaks in terms of the sentence that would have been passed if he had committed the full offence. The full offence here is murder. Very often what is happening is not the full offence, and it never would have become the full offence and, therefore, one is starting with a bit of a fudge. Q23 Bob Neill: So it is not explicit enough to reflect that it would have been manslaughter rather than murder? Bruce Houlder: One would have to come back to that, but it does not seem to me to do guidelines any favour, if they are to have logical consistency, to have a situation where the court is first required to make a determination as to whether the offence might have been one of manslaughter if carried out to full effect, because that would perhaps require a trial of the issue, which is to be avoided, particularly where someone has pleaded guilty to an attempted murder - one does not want to call victims in, one does not want to have a trial on the issue - and that is why I am attracted and the CBA are attracted to the original proposals of the Sentencing Advisory Panel. The problem lies, as was stated by Mr Justice Gibbs, who spoke on behalf of the full court, led by Vice-President Lord Justice Rose. So, the problem does not lie at the lower end of the sentencing for attempted murder, those situations which we can all sympathise with and understand where someone may be provoked to commit a sudden act of violence which they would never again commit. The problem lies with the serious offences: the contract killers. Q24 Bob Neill: There is a clear intention to kill? Bruce Houlder: Yes, people who try to kill public officials, police officers, and so on. There is a perception, and there is some evidence, that sentencing there is too low, and that was made clear by the court in Ford, and the advisory panel set the starting point there at 20 years if it was not going to be a whole life sentence, which, of course, for the serious contract killer it can be a whole life sentence, but 20 years seems to me a higher starting point than has been applied by the Court of Appeal in many cases. There is statistical evidence that the Sentencing Guidelines Council has - I do not know whether the Committee have it - which shows that, I think in only four cases of the particularly high category---. Let me get it right. Twenty-eight out of 70 received life imprisonment or imprisonment for public protection, in relation to determinate sentences 31 were for 12 years or less and four only were for over 20 years. Of course that does not take account of what those four were and what the ones just under that might have been, but it seems to have been the experience of the Court of Appeal, as expressed in Ford, which was a case heard in May 2005, that the sentencing at the top end was the problem, and that quotation appears in the Sentencing Advisory Panel's paper. Q25 Bob Neill: That is very helpful. The other point I wanted to touch on very briefly with both witnesses was this overlap between the various forms of assault which, I think, has already been recognised, both in terms of the definition of the offence and also in sentencing as well, particularly when section 47, section 20 have the same maximum sentence and the difficulties that arise there. Is there a need to revisit the law on this to try and make the definitions better, or would any attempt to do that make muddy waters even muddier? Bruce Houlder: My first instinct is to say: hands off criminal law, it is a very old Act of Parliament which continues to serve us well, but I think in time it does need some codification, yes. Q26 Bob Neill: Have you any thoughts at this stage, or would you not want to be drawn as to how we might do it? Bruce Houlder: I would not want to be drawn on the specific. What I would not like is a now common offence of assault, like there is a common offence of fraud. That, I should think, might be a problem. Q27 Bob Neill: No, I understand that. Cindy Barnett: I think I might agree wholeheartedly. Please, no more Acts, no more legislation. Although in principle codification would be wonderful, I do not think it would be done in the way that everybody would wish. It would be seen as more tinkering, because it would inevitably be over a smaller sphere. Although there are obvious difficulties, in that you may be faced with very serious injury and yet the charge may not seem appropriate, that is something that you simply have to put to one side, as has already been said. Whatever you are faced with, you have a maximum, you have a guideline in relation to that particular offence and you deal with the seriousness within those parameters, and I think that actually works quite well. Q28 Bob Neill: One wonders if that is a problem that is more apparent to the text-book writer than to the practitioner perhaps. I do not know. Cindy Barnett: I think we are aware of a slight feeling of surprise sometimes over what has been charged and the variation. Bob Neill: It comes back to the charge again. Thank you. Chairman: Thank you both very much. We much appreciate that. It will help us in formulating our own figures. Witness: Helen Leney, Acting Manager, Thames Valley Statutory Adult Restoration Service, gave evidence. Q29 Chairman: Ms Leney, welcome. We are very glad to have you this afternoon. We have often heard about the work that goes on in Thames Valley on this important and, I do not mean this unkindly when I say, fashionable subject, fashionable because everybody is looking to see what can be achieved. I wonder if you can simply start by outlining how restorative justice works in summary? Helen Leney: It works because it comes to an offence or crime from a different view-point from the traditional criminal justice system which looks at what law has been broken and what is the punishment for breaking that law. Restorative justice looks at what harm has been caused and how that harm can be repaired, and so central to the whole process is the person who has been harmed, the victim, and other people who have also been harmed, often the victim's family, often the offender's family as well, and it brings all of those people together to talk about what happened, how everyone has been affected and then to discuss how things can be put right; how the harm that has been caused can be repaired. It works because it gives victims a voice in what happens, which is, in many cases, lacking from the present criminal justice system, which can be very distressing for victims if they feel they have been ignored, they have not been heard. It also does not do much for their confidence in the criminal justice system if they feel that they have been completely ignored. It makes the offender face up to the harm that they have caused in a way that is much more direct than if they are in a court, which can sometimes be almost quite a faceless experience. Q30 Chairman: It can be? Helen Leney: Quite a faceless experience. If an offender has pleaded guilty they do not even have to say anything, except confirm their name, quite often. It is quite different walking into a room where the victim and his or her family is and having to face them and be accountable for what you have done. Many offenders find that a very difficult thing to do. We have actually had to push people through doors before now just to get them into the room. In my experience it motivates offenders to look at the reasons why they have committed the offence and to do something about it. Victims very often want to know what the offender is doing to not reoffend, because they do not want anybody else to go through what they have been through, and in a restorative justice conference, which is a face-to-face meeting, quite often towards the end victims can become very encouraging of offenders and talk about what they are doing in prison. Are they getting some training? Are they getting some education? What are their plans when they come out on release? In a community sentence, we always invite probation officers to these meetings, because the victims do want to be included and to have information about what is happening in the community sentence, echoing what the last speaker said. A lot of victims feel, particularly for a violent offence, that if the offender is not sentenced to custody then they have got off, whereas if they come to one of these meetings and hear from the probation officer exactly what they are doing in their community sentence, that is very reassuring for victims. Q31 Chairman: How does dealing with the harm issue fit with the obligations already confirmed by the community sentence? The community sentence may involve some kind of activity. How do you interpose the remedial aspect if you want to do it in a way in which the criminal makes some restitution either to the individual or to the neighbourhood in which they have done some harm? Presumably that has to change the shape of any community sentence, does it not? Helen Leney: It does not affect the sentence, because in Thames Valley, when we deal with a community sentence under the 2003 Act, we deal post sentence, so the sentence is already there. Q32 Chairman: You mean the shape of the sentence. Not its length but what the person is doing in the course of it. Helen Leney: Anything that the people agree. It does not form part of the sentence, it is completely voluntary. They can agree all sorts of things. It might be writing a letter to a family member of the victim, perhaps who is not present, who has been distressed by what has happened. We try not to come up with suggestions about what people can do, because it is not really for us to say what we think is going to make this better. It is for the participants themselves to decide. What we often find actually is that, having had an opportunity to get together to talk about it, for the victim to say what they want to say, to have their questions answered, to hear an apology (which is very important) and to be able to judge whether that apology is genuine as well (which is important for victims and something that is often mistrusted when an apology is given in court) quite often that is enough for victims to say, "It is fine. It is done and dusted. Now I can go away and forget about it. I do not want anything else to happen." So it provides that sense of closure for victims. Q33 Dr Whitehead: You presumably have to have victims co-operating in the first place to enable the whole process to begin? Helen Leney: Yes. Q34 Dr Whitehead: How would you describe the initial attitude of victims towards restorative justice when this particular path is put to them in the first place? What sort of co-operation or, indeed, non co-operation arises from that? Helen Leney: I can give you some figures on victim responses. Unfortunately I only have figures on this bit until the end of last year: 63% of victims that we have approached wanted to be involved in some way - that is not necessarily in a face-to-face meeting, for a lot of people that is a step too far, but they did want some sort of involvement - 30% either we could not find (which is always a problem) or did not respond to letters or telephone calls, and the other 17% we did not contract because the offender in question was breached or reoffended and the order was revoked. So, you could say that two-thirds of victims respond positively. Certainly, from my experience, and when I started doing this in 2001 it was completely new to the criminal justice system and I started on the research for the Home Office for the JRC in Thames Valley, the thing that struck me when I was contacting victims post sentence was the level of anger and distress about the way the criminal justice system had treated them, and what restorative justice does is balance that out by going along and saying: this is an opportunity for you to be involved. One of the most distressing things that victims would say was, "Nobody told me anything." I saw one young man who the first thing he knew of a sentence having been passed was when he read about it in the local paper with his name in it, and when I rang him up I had to hold the phone away from my ear because of his anger, and I have had that on a number of occasions. Q35 Dr Whitehead: Do you get cases where you say, "We cannot really do this?" Maybe there is a long running feud or obsessive behaviour of the part of the perpetrator that you cannot be expected to come to an understanding. Helen Leney: Yes, those cases are weeded out, hopefully, before we get to them, and we have not had a case that we have had to send back because it was not suitable for restorative justice. The way we operate is we work very closely with Thames Valley Probation, who are one of our partner agencies, and the person who writes the pre-sentence report will, as part of the interview, assess whether the offender is suitable for restorative justice. We have a check-list which they go through and, if there is doubt, they can ring us up and ask our advice, and if they think that the person is suitable and the offence is suitable, then they recommend in the pre-sentence report that an order is made for a community sentence. So, by the time they get to us any cases where there are concerns about revictimising, where there are drug and alcohol or mental health issues which would mean that the offender was unlikely to be able to take a responsible part in the restorative justice process, or if the offender was so against the principle of restorative justice that they would be unlikely to turn up for a meeting, then they are not suitable and they would not be recommended. Q36 Dr Whitehead: What about the other way round: if the victim does not want to participate? Is that a complete veto on any proceedings or are there circumstances under which the process can take place even without the victim participating? Helen Leney: We would not do a face-to-face or a restorative justice conference without a victim. Research done elsewhere has shown that if you drag in a community member or somebody who is not the direct victim, it can actually make the likelihood of reoffending greater, so we do not do that. Q37 Chairman: You mean he goes round to the house later on? Helen Leney: It seems to instil a sense of anger in the offender, because they have somebody who is not connected with the offence telling them off and that is very unhelpful. Not all victims do want to meet, for a variety of reasons, and if they do not want to meet they may still have questions that they want answers to, they may still want the offender to know how they have been affected by it, they may want an apology, so we can do some indirect mediation type work, and quite a few of our cases fall into that category. I would draw your attention to the Sherman and Strang Report, which looks at cases worldwide, and also to Joanna Shapland's report on the JLC research on benefits to victims. All the research indicates that a face-to-face meeting is what is most helpful for people and is best, but even when we do something like a letter of apology---. Can I give you an example of one case where the victim was a middle-aged man? He had been assaulted by somebody who lived locally outside the local shops. For some reason it took a year to come to court, and so I did not see the victim until a year later and he still had not been out on his own because he was worried about what this particular person would do: was he out there waiting to see him again and what was he going to do when he did see him? After six months he had started going out with somebody else, but he still would not go down to the local shops. I did quite a bit of toing and froing between the two of them, because he did not want to meet face to face, and the offender wrote quite a long letter, which I then took round to the victim, and he read it through twice, very slowly, and then he turned to me and said, "Now I feel safe." So, even without a face-to-face meeting, you can still do things which are going to make things better for victims. On rare occasions the victim does not want anything, any feedback at all, and in that situation we work usually with the probation officer and we do some sort of enhanced victim awareness work - it is more, I was going to say theoretical, it is not theoretical, but it is not related to specific victim so much - but those are the minority of cases. Q38 Dr Whitehead: This presents a series of outcomes which are potentially very different to what is available anywhere else in the country. Helen Leney: Yes. Q39 Dr Whitehead: In order to get to that position, has that required a whole range of different assumptions on the part of those people taking part in the process such that you have a rather different structure of justice, you might say, or do you think that is something which, if people said, "Let us do this everywhere", it would be relatively easy and straightforward to take up? Helen Leney: I am not quite sure I understand. Are you asking if there is anything specific about Thames Valley that means that we are unique and we are likely to remain unique? Q40 Dr Whitehead: Yes? Helen Leney: No, not at all. We started off as part of the JRC research as a multi-agency partnership to deliver the research. I was just a sessional facilitator then, so I cannot speak with too much authority, but it took a good year to get all the systems in place so that we could operate effectively and efficiently and then, when the research came to an end, we carried on with all those systems in place. We have very close links with the police, with the Probation Service, who are the lead agency; so we are linked into the probation computer systems, we have access to all the offender information we need, we have a very good relationship with the victims unit, with victim support, with all the agencies that we need to deal with, and there is no reason why every other probation area in the country could not have a restorative justice service tied in with it. Q41 Dr Whitehead: You mention that you are linked in, for example, to the Probation Service's computer. Would you say that was a relationship that has emerged on the basis of an understanding by those probation officers and probation services of the potential of what you are doing or was that a relationship that had to be built? What were their perceptions initially of your service and what would you say their perceptions are now? Helen Leney: Thames Valley was in the vanguard of delivering restorative justice through Thames Valley Police, so I think there has been a culture for quite a few years in Thames Valley about RJ, and I think there is very strong support from the local Criminal Justice Board - in fact I know there is, I have it in a letter from them - to encourage the use of restorative justice. I think initially it was a bit of an unknown quantity when it came to actually delivering it on the field, talking to probation officers, prison officers, whatever, but over the last six years we have developed a very close relationship and I think we are accepted as a very useful part of the system now. Q42 Dr Whitehead: Local magistrates? Helen Leney: Magistrates are very supportive. I have brought a letter. I should say that Thames Valley Restorative Justice Service has been fighting for survival for the last year because of budget constraints and we actually only have enough money for the next two weeks, I think, so I got here just in time. Q43 Chairman: You say you have got enough money just in time. Helen Leney: No, I have got here just in time because our funding runs out next month. Q44 Chairman: Oh, I am sorry. Helen Leney: The Chair of the Thames Valley Bench Chairman's Forum has written to Lord Faulkner saying, "As sentencers in the Thames Valley, we are extremely concerned that we are about to lose a much valued option in our courts to make restorative justice a specified active requirement also, as a consequence, denying the wishes of victims in a significant number of cases." About two-thirds of our cases are referred from magistrates' courts and about a third from crown courts. The community sentence ones are about two-thirds community orders and about a third suspended sentence orders. So we get quite a number of cases referred. Q45 Chairman: This funding problem remains unresolved, does it? Helen Leney: It does remain unresolved. Q46 Chairman: I think we might inquire of the new Lord Chancellor whether he has seen your letter or heard your evidence to us today. Helen Leney: We have had a letter from Jack Straw, who states, "There is currently no specific funding available for adult restorative justice. It is for the local criminal justice boards and criminal justice agencies to consider how to use their funding to best meet their targets and local needs." Coming back to what you were saying about restorative justice being able to be used nationally, yes, there is absolutely no reason why restorative justice cannot be rolled out across the whole country, indeed I think it should be, but it has got to be funded, and that is a big problem. Q47 Dr Whitehead: In your estimation there are not, I do not think, accurate statistics available on the impact of reoffending rates where restorative justice has been undertaken. What is your impression of that and how the future behaviour of offenders might be affected? Helen Leney: We are waiting for the reoffending results of the JRC research, which I am told will be at the end of this year, and that will go across the randomised patrol trials in Northumbria, Thames Valley and London. Q48 Chairman: I did not hear precisely what you said then about the trials in Northumbria and London? Helen Leney: The JRC (Justice Research Consortium) research carried out for the Home Office was across the three sites, and those results will be published by Sheffield University via the justice ministry hopefully at the end of the year. I have no idea, I have no inside information, I am afraid, about what those results are going to show, but the other significant report that came out earlier on this year is from Professor Sherman and Dr Strang, who have looked at all the studies that have been done worldwide and have done a meta-analysis on them, and of the studies on violent crimes that met the strict research criteria six showed a reduction in reoffending, four showed no change in reoffending, none of them showed an increase in reoffending. They also did some research on property crimes and other things, but those are the figures for violent offences. So, the evidence from elsewhere in the world would tend to suggest that you do, on balance, get a reduction in reoffending rates. Some of these reductions were huge and others were fairly minor; so it varies. We will have to wait and see what happens in the UK results. My own experience of offenders taking part in restorative justice is that they are much more motivated to do something about the problem that causes them to commit the offence. Q49 Chairman: As a result. Helen Leney: As a result of meeting the victims. Can I give you another example? I have to be scant on the details of cases to preserve anonymity, but this was a young man who assaulted another young man. When I saw him after sentence he said he realised he should not have done it, and he wanted to apologise to the victim, but it had not been that bad really, because he had only hit him twice and, if the other one had not elbowed him in the groin, he would not have lost his temper anyway, so minimising and justifying to a certain extent. When they met, the victim's mother came along and the offender said this at the beginning of the meeting and she whipped out of her handbag the Polaroid photographs that she had taken of her son in hospital. These photos had been available in court and the offender said he had chosen not to look at them but, faced with the victim's mother waving them under his nose, of course he could not avoid them. He looked at them and he crumpled and said, "I could not possibly have done that, I only hit you twice", and the victim said, "No, I had a bruise here, one there, one there, one there." He went all over his head and shoulders and neck pointing out where the bruises were and said, "And my nose was not just broken, it was smashed and the doctor said somebody had been doing this to it." There was quite a long silence while the offender took all this in, broken by the offender, who said: could I record the first item on the conference agreement as a request to his probation officer to get him on the first available anger management course that there was because he said, "I have suddenly realised I have got a problem and I need to do something about it." He has completed the course and he has reported that he is using the techniques that he learned in that to control his temper. Q50 Mrs James: What support do you think needs to be put in place and by whom to make restorative justice available to sentencers more widely across the country? Helen Leney: I am not sure that I am qualified to answer that really. I think restorative justice sells itself. Once people become aware of what it is like and what it can do, I think then people start to become more accepting of it. Q51 Chairman: Criminal justice boards have got to divert some of their funds into it for it to happen, have they not? Helen Leney: Well, yes. One of the things that could help was if restorative justice became a target. The letter from Jack Straw saying it is up to the local criminal justice boards to decide how best to meet their targets: restorative justice is not a target and the criminal justice agencies in Thames Valley, the probation and the police, have both had huge cuts in their budgets for this year, which is why they cannot support us any longer financially. They are struggling to keep their core services going; so to fund something which they do not have a target set for, it is not going to happen, is it? Q52 Mrs James: We have already heard previous evidence about the problems of the media exacerbating things, making things bigger than they are. What work do you think needs to be done and by whom to explain to the public, media and sentencers about restorative justice to try and spread it out a little more? Helen Leney: I think one of the problems with the media coverage of restorative justice is that it is largely focused on the offender and you get these headlines like, "Say sorry and get off", which, as Cindy Barnett said, are completely misleading and very unhelpful. I do not think there has been very much media attention on the benefits to victims, which is unfortunate, because if certain newspapers had the welfare of victims at heart they would go for restorative justice whole-heartedly and they would be pushing for it. The Joanna Shapland Report, for instance, some of the outcomes: 72% of victims found some closure, 79% of offenders - these are cases that took part in a restorative justice conference as opposed to the control group - thought it lessened the chance of reoffending, most victims felt the conference lessened the negative effects of the crime, 83% of offenders felt that restorative justice had made them realise the harm done by the offence, 80% of offenders and 69% of victims have more understanding of how the offence came about, 61% of offenders felt restorative justice made him or her address the problems behind the offence. We do not know whether that is going to translate into reduced reoffending. Overall 85% of victims and 80% of offenders were satisfied with the restorative justice process. Compare that with satisfaction with the criminal justice system in the December 2003 Audit Commission Report: over two-thirds of the public not at all, or not very, confident that the criminal justice system meets the needs of the victims, confidence is lower with those people who have been the victim of crime - so it goes down when you become a customer, so to speak - and two in five witnesses, because of their experience, would not be prepared to go to court again. So the satisfaction rates for restorative justice are just off the scale compared with that. The other, I think, interesting thing from this report from Joanna Shapland is that victims of offenders are more satisfied with the criminal justice system having taken part in a restorative justice conference. Q53 Chairman: I think a few more articles from one or two of your victims, perhaps with names changed, instead of the press making things up. Helen Leney: Yes, absolutely. I did take a victim along to the international conference - it sounds terribly grand - at Winchester two weeks ago and she spoke about her experience as a victim. She came into prison and met her offenders there and she spoke very eloquently about how meeting them lessened her fear of coming face to face with them when they were released and all her questions answered and she just generally felt so much better about what that happened to her, so much so that she changed careers and she is now a trainee probation officer. Chairman: Ms Leney, thank you very much indeed. You will have sensed from our questions that we greatly value what you and your colleagues do and I, for one, would very much like to see your idea extended and made widely available to the courts. Thank you very much indeed. |