4. Memorandum submitted by
the Council of HM Circuit Judges
1. We represent the 637 Circuit Judges in
England and Wales. Circuit Judges sit in the Crown Courts trying
a wide range of more serious criminal offences. The sentencing
of convicted offenders, whether after plea of guilty or after
trial, is the responsibility of Circuit Judges in the Crown Court.
Engaged in this way the Circuit bench is uniquely placed. We have
vast experience of crime and criminals and day to day practical
experience of the sentencing process. We comment as experienced
practitioners.
2. An inquiry entitled "Towards Effective
Sentencing" is potentially very wide ranging. We are, of
course, sitting in Court on a daily basis discharging our judicial
duties. To provide a comprehensive and detailed response would
involve much work over a period of time. It is disappointing that
the notice of the inquiry leaves some four weeks in which to respond.
Our response will inevitably reflect the fact that there is insufficient
time for detailed consideration of alternatives and construction
of comprehensive submissions.
3. It should also be pointed out that the
Criminal Justice Act 2003, which set out a new sentencing regime,
only came into force with effect from April 2005 applying to offences
committed after that date. In reality, therefore, the situation
is being reviewed rather less than two years after a major piece
of legislation took effect. We recall the Powers of Criminal Courts
(Sentencing) Act 2000 which was heralded as a codification and
simplification of sentencing but which was undermined by a series
of amendments within months. We are concerned that insufficient
time may have elapsed for a proper evaluation of the results of
those parts of the Criminal Justice Act 2003 that are in force
to take place. If the purpose of this inquiry is to seek to correct
perceived problems with the Criminal Justice Act 2003 a much larger
and more comprehensive investigation would have to be undertaken
to ensure that whatever result was achieved had some prospect
of ensuring a lasting and stable approach. Constant change imposes
enormous burdens on all engaged with the criminal justice system
and greatly increases cost. We are concerned that on many occasions
a change in policy results in changes in working practices that
require effort and reorganisation yet once implemented, and before
there has been time to evaluate the results properly, another
change takes place. The consequence is further work and reorganisation
with doubtful benefit but again diverting valuable resources.
There is the added complication that for a period two different
sentencing regimes exist the application of which depend upon
the date of the commission of offences.
4. It is also appropriate to draw attention
to the underlying problems in society that contribute to the difficulties
faced by the criminal justice system. The criminal justice system
is, after all, picking up the pieces where society has failed.
A recent Consultation from the Home Office[14]
makes some suggestions as to the reasons why such a state of affairs
has come about. The problem is a complex one and, as we have pointed
out before there is no "quick fix".[15]
There have, undoubtedly, been changes in both moral and social
values. There has also been a decided shift away from personal
responsibility with the development of a culture of "rights"
at the expense of individual responsibility. There is a long term
need to reverse that trend however difficult that might be. It
is equally clear that what have sometimes been referred to as
"the causes of crime" remain and may have got worse.
There is evidence to suggest that the deprived areas have become
more deprived and the state and condition of such areas fosters
crime. Similarly substance misuse, particularly alcohol and drug
abuse, plays an important part in the underlying causes of crime.
There is urgent need to address the root causes otherwise steps
taken may represent nothing more than stopgap measures. The introduction
of various types of Prohibitive Order risks compounding the problem.
Whilst there is a place for steps of that sort such Orders are
not an answer to the underlying problem but a reaction to it.
Of course breaches, which will continue to occur so long as underlying
problems remain, result in a greater use of custody as a reaction
to what might be low level activity.
5. We believe that as a consequence of the
way in which the subject is reported in the media there has been
an increase in public fear of the risks posed by crime whether
or not such risks have actually increased. It appears to be widely
perceived that crime is reduced by the creation of yet more criminal
offences and the imposition of ever more extensive and severe
penal sanctions. This belief is, in our view, driven by a media
which asserts that prison works fostering a belief in "tougher
sentencing" to which there has been political response. The
result has been a "ratchetting up" of sentencing generally.
This has the consequences for the prison population that are now
being felt. If no more measured and proportionate approach is
adopted public confidence in steps to reduce the prison population
will suffer with further negative effects on the prison population.
6. We have considered a number of matters
that arise in a review such as this and comment further below.
We would emphasise that there is, inevitably, considerable overlap
and no one area should be viewed without considering other areas.
There is also the need to keep in mind that every action has its
consequence so that a step in one direction has an impact in another.
It is all too easy to overlook such a basic principle of approach.
THE PRISON
POPULATION
7. As experienced practitioners we have
been expressing concern at the rising prison population for a
number of years. We have been making known our increasing concerns
about overcrowding and lack of rehabilitation facilities. There
are more offenders sentenced to longer periods of time in prison.
There may be a number of factors in addition to those mentioned
in paragraph 5 above. It has to be recognised that offending in
some categories of criminal activity has increased and in some
instances the seriousness of the crimes themselves has increased.
For example, there is more alcohol fuelled violence and the seriousness
of that violence has increased. We have been expressing concerns
about that for some time.
8. More recently the impact of the Criminal
Justice Act 2003 has started to be felt. We venture to suggest
that careful planning for the likely impact of any legislation
is fundamental. Proper planning takes time and requires open minded
enquiry. We now appear to have the results of an absence of sensible
planning for the escalation of the prison population which was
a predictable result of the implementation of the Criminal Justice
Act 2003.
9. The Criminal Justice Act 2003 introduced
the sentence of imprisonment for public protection, an indeterminate
sentence, and the extended sentence which extends the time spent
in prison before consideration for release. Both indeterminate
and extended sentences must be passed where arbitrary statutory
criteria are met. Neither indeterminate nor extended sentences
result in consideration for release on licence at the earliest
opportunity by the Parole Board and in consequence many offenders
are spending longer periods in prison than necessary.[16]
There is anecdotal evidence to suggest that the Parole Board cannot
deal with all those now subject to indeterminate or extended sentences
at or around the "tariff" date and that a more cautious
approach to release is being adopted.[17]
Coupled with that there is a need to resource and improve the
provisions for working with offenders in prison prior to assessment
for release which now appear to be at risk of cuts in funding.[18]
In addition action taken to increase the effectiveness of community
sentences has resulted in an increase in breach proceedings and
re sentencing. Initiatives to ensure that offenders attend trial
and to pursue those who do not increase the remand population.
If more offences are created and the effect of sentences is increased
then there will inevitably be an increase in the numbers in prison.
10. A recent Consultation by the Home Office[19]
identified some categories of offender who, it was suggested,
should not be in prison. We agree that there are people in prison
who should not be there. There is no doubt that there are many
foreign nationals detained in prisons in England and Wales. Some
of these are convicted criminals who complete sentences then await
deportation. Others are illegally in England and Wales and are
to be deported. There have been failures to address this over
a considerable period of time and that has resulted in the problem
becoming acute. The whole question of detaining foreign nationals
has demonstrated a failure in policy and the provision of resources
leading to an unacceptable situation. There are then those with
mental health problems. Statistically many of those entering prisons
have mental health problems. Prisons are not equipped to deal
with the treatment and management of such offenders. Without treatment
and management they continue to offend on release with the inevitable
consequence that they are returned. Again a failure to address
the need to provide policy and resources to cater for the mentally
ill offender results in Courts being left with no alternative
but to imprison people who have little prospect of securing the
treatment necessary in prison and then re offend. Further resourcing
of Bail Hostels, which have suffered from under funding in recent
years, and better support packages for those on Bail would impact
on the remand population.
11. Alcohol abusers and drug addicts provide
particular problems and it is simply not possible to say that,
as a general rule, such persons should not be in prison. In the
long term, of course, dealing with the abuse must be the aim.
It appears that treatment is not as readily available in prisons
as it should be. Even where treatment is available in the community
its effectiveness depends upon the willingness and resolution
of the offender. An offender who has made the decision to come
off drugs or alcohol and is determined to do so is often amenable
to treatment. An offender who has not made that decision or who
has yet to become resolved in the desire to beat drug or alcohol
addiction will not be amenable. It is often a question of timing.
If the time has not been reached then the offender, whose actions
cause loss, inconvenience and distress, would remain likely to
receive a justifiable custodial sentence.
12. Women and young offenders are often
seen as vulnerable groups. Mental health issues or substance abuse
are frequently at the root of offending and we have commented
upon that above. There has also been a change in attitudes over
recent years that has resulted in a larger number of offences
by females and breakdown in family structures. Both areas need
to be addressed. In the long term steps to improve the situation
of and support for families would be of benefit. We do not believe
that Courts routinely pass custodial sentences on vulnerable offenders
if there is a viable alternative available. There are, however,
hardcores of offenders in both categories for whom a custodial
sentence is the only option.
13. We do not believe that there are many
"minor" offenders in custody. There are many "prolific"
minor offenders who receive custodial sentences as a last resort
when other efforts to deal with their offending have failed. In
this connection there is need to keep in mind the problems with
mental health and substance abuse. We cannot place too much emphasis
of the need for resources in these areas in the community at large.
Of course the prolific offender who does not respond to Community
penalties presents a real problem particularly when the effect
of section 143 of the Criminal Justice Act 2003 is to require
a "ratchetting up" of sentence in such cases and the
initiatives to which we refer in paragraph 8 above often result
in re- sentencing. We believe that even with greater resources
there will remain some for whom custody is the only option.
INDETERMINATE SENTENCES
14. There can be little doubt that the impact
of indeterminate and extended sentences on the prison population
was under estimated. Whilst we agree that there is a distinction
to be drawn between the dangerous offender and the non dangerous
offender it does not follow that an offender should be treated
as a dangerous offender simply upon a consideration of his or
her previous offending. Further where an indeterminate sentence
is passed the mechanism for review at the "tariff" date
must be in place and must be effective. Each of these considerations,
if not addressed, contributes to sentenced offenders remaining
in prison for longer than is actually necessary.
15. Recent decisions of the Court of Appeal
have gone some way towards addressing the first point to which
we refer above. There may still be a need to consider the categories
of offence included as "specified" or "serious"
offences in order reduce the number of "triggers" or
to consider some timescale within which the previous offending
must have occurred. Both steps would produce arbitrary results.
In many ways the problem illustrates the difficulty of seeking
to legislate for a rigid framework when sentencing offenders is
subject to many variables. Judges exercising discretion based
upon experience and guidelines have made decisions on dangerousness
in the past without producing these consequences.
16. There can be no doubt that the second
point we make in paragraph 13 is an important factor. Many indeterminate
sentences result in low "tariffs". That is inevitable
under the structure introduced. If those cases are considered
for release on licence at the "tariff" date the numbers
remaining within the prison estate will reduce. Anecdotally the
prisons are unable to assess these prisoners, or those subject
to extended sentences, and provide the appropriate courses to
secure that offending is addressed before the "tariff"
date. Further the number of cases to be considered stretches the
resources of the Parole Board to the point where decisions cannot
be taken at or around the "tariff" date. Further resourcing
in both areas may go some way towards addressing these difficulties.
SHORT SENTENCES
17. It is simply not practical to abolish
short custodial sentences. Whilst we understand that it may not
be possible to work with short term prisoners during a short sentence
that in itself should not be used as a reason to remove the option
from the Courts. As we have identified above there are some for
whom there is simply no alternative and others for whom the prospect
remains a deterrent. Where custody is considered appropriate Courts
currently impose the shortest sentence possible compatible with
the offending. Removal of the option to do so might have the effect
of increasing the level of sentencing in such cases.
18. We expressed concerns about the implementation
of Custody Plus.[20]
We do not believe that the resourcing necessary to attempt introduction
of such a measure is available nor do we believe that such resourcing
will become available in the current climate. We are also concerned
that some Courts may take the view that Custody Plus can be used
to give offenders "a taste of prison" when, at present,
the passing of a custodial sentence expressed in weeks is most
unlikely. If such were to occur there would be an immediate impact
on the prison population.
19. There may be a place for the Intermittent
Custody and Custody Plus options, introduced but not implemented,
but the cost implications should not be under estimated. Adequate
funding is essential. That requires proper detailed planning and
careful thought with wide consultation. To implement a Custody
Plus option without proper funding in place might simply result
in further problems and no impact on rates of re offending.
COMMUNITY SENTENCES
20. We can only speak from our experience
as Judges in the Crown Court. Judges do not impose custodial sentences
unless there is no appropriate alternative disposal. It always
a matter of considering the offence to determine whether the custody
threshold has been crossed. Even where that threshold has been
passed Judges will draw back from the imposition of custody if
a viable Community Order can be made. Judges are aware of the
range of conditions that might be attached to Community Orders.
and, in those case where a Community Order can properly be made
that Community Order will be made. We commented in some detail
on this in our response to recent Home Office Consultation.[21].
21. There have been changes in the enforcement
procedures and in the approach to programs offered that have improved
confidence in Community Sentences. We are concerned that what
is seen by many as "privatisation" of some areas may
undermine that confidence.
22. We are aware that proposals to devolve
powers to deal with breaches of Community Orders to Offender Managers
have been advanced. We are fundamentally opposed to this. Our
reasons were set out in the Response to which we have referred
above.[22]
Whether there was breach that might trigger a variation in the
Order of the Court is the determination of a "criminal"
issue affecting the freedom of the individual to which the rights
enshrined in Article 6 of the European Convention on Human Rights
apply. The introduction of a judicial function for offender managers
is inappropriate and unacceptable. Further there are serious practical
difficulties. An additional burden of responsibility would be
passed on to an already overburdened service and the core business
and purpose of the offender manager would suffer. Current scarce
resources would be further stretched.
PRE COURT
DIVERSION
23. This is an area about which we have
commented at length and in detail in recent months.[23]
We support the view that Fixed Penalty Notices are an appropriate
means of dealing with some levels of unlawful activity. Indeed
we have recently been urging the greater use of administrative
financial penalties in relation to regulatory breaches with the
aim of removing many such breaches from the criminal justice system.[24]
We do not believe that fixed penalties should be used to punish
those who commit truly criminal acts. The use of fixed penalties
as a response to truly criminal offending is to create the impression
that truly criminal offending is not to be treated as significant.
We are concerned that this is likely to encourage the belief that
crime may not result in retribution thus hastening and substantially
increasing the risk of more serious offending. That is a source
of real concern. Less serious offending is usually the breeding
ground for more serious offending.[25]
To create the perception that some truly criminal acts equate
with purely regulatory breaches may not deter and may actually
encourage repetition of those truly criminal acts.
5 February 2007, Penalties and Sentencing 5
February 2007.
24. The use of simple Cautions as a response
to low level truly criminal offending by some categories of offender
is proportionate and appropriate. We support the use of Cautions
for first time low level offending. We would support the imposition
of a Caution for such offending coupled with some reparation.
We do not believe that the use of Conditional Cautioning for more
serious offending is a sensible extension of the use of Cautions.
That would carry with it the same perception of "downgrading"
of criminal activity as would the inappropriate extension of the
use of Fixed Penalties. In addition it would introduce an element
of punishment determined not by an independent and competent Court
but by an employee of the state seen to be closely linked with
the police. If truly criminal activity is considered to be worthy
of punishment it should be dealt with by a Court.
25. We would urge detailed consideration
of our Responses to the Home Office in relation to Fixed Penalties
and Cautions.[26]
We are concerned that the extension of the use of such measures
will be seen to decriminalise offending. Whilst attractive as
a short term answer to dealing with offending the long term consequences
may be far from attractive.
RESTORATIVE JUSTICE
26. While it is difficult to be definitive
about the benefits of Restorative Justice in reducing re offending
there is no doubt that all the trials of Restorative Justice in
the many formats and jurisdictions that have been undertaken,
have one consistent and important benefit. This benefit is in
the closure achieved by the victims and in the consequent earlier
resumption of a normal life by victims.
27. All the studies undertaken[27]
show a marked beneficial effect that Restorative Justice had for
the victims and these may be summarised to include: less stress
or symptoms of post traumatic stress disorder, less disability
in relation to work activities, less desire for violent revenge
and a greater level of satisfaction with justice. We would support
the Restorative Justice concept in the right cases in order to
achieve these results alone.
28. We have greater concerns about the effects
on rates of re offending. The reports of the various restorative
justice trials conducted in a variety of jurisdictions and by
a variety of methods show more mixed results in the assessment
of whether re offending is reduced.
29. There would be a clear need for an open
discussion to determine what would be acceptable to the Public
at large.[28]
Acceptability may well depend upon the seriousness of the index
offence. Thus for more minor crimes Restorative Justice schemes
which represent a complete diversion from the criminal justice
system may be thought acceptable.[29]
In more serious cases it may be thought that an admission of responsibility
and a recording of that admission followed by a Caution and Restorative
Justice outside the court environment would be appropriate. On
the other hand Restorative Justice schemes that merely supplement
the full criminal process and in which restorative justice operates
so as to inform the sentencing decisions of the court may be the
most readily accepted by the public. All these matters need scrutiny
and very careful, open minded research.
30. As we have indicated in this paper we
support the full and proper exploration of any avenue that might
sensibly reduce re offending rates and which might, where appropriate,
be used to divert matters from the court. We are, however, very
wary of any scheme that would exclude the Courts in cases of any
seriousness.[30]
His Honour Judge David Swift
Chairman, Criminal Sub Committee
13 March 2007
14 Strengthening Powers to Tackle Anti Social Behaviour. Back
15
See for example CoCJ Response to Making Sentencing Clearer
20 December 2006. Back
16
See also paragraph 14 below. Back
17
See paragraph 15 below. Back
18
See paragraph 15 below and reports of cuts in Prison Service
budgets of £240,000,000 over the next three years. Back
19
Making Sentencing Clearer. Back
20
Custody Plus and Allocation 5 June 2006. Back
21
Making Sentencing Clearer Response 20 December 2006. Back
22
Making Sentencing Clearer Response 20 December 2006. Back
23
Making Sentencing Clearer Response 20 December 2006, Strengthening
Powers to Tackle Anti Social Behaviour Response Back
24
Submissions to the Macrory Review. Back
25
Making Sentencing Clearer Response 20 December 2006. Back
26
Making Sentencing Clearer Response 20 December 2006, Strengthening
Powers to Tackle Anti Social Behaviour Response 5 February 2007,
Penalties and Sentencing 5 February 2007. Back
27
For example the 2007 Smith Institute Report. Back
28
Note paragraph 5 above. Back
29
See paragraph 22 above. Back
30
See paragraphs 21 to 23 above. Back
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