6. Memorandum submitted by
the Criminal Bar Association
1. On 6 February 2007, the Home Office launched
an inquiry entitled "Towards Effective Sentencing".
It was intended to follow-up an earlier 1997-98 report called
"Alternatives to Prison Sentences", to scrutinise the
implementation of the sentencing aspects of the Criminal Justice
Act, 2003 (CJA 2003) and to assess the Government's proposals
in the recent consultation paper "Making Sentencing Clearer"
and the responses to that paper. The Committee wishes to establish
whether current sentencing practice fulfils the aim of the CJA
2003 and will pay particular attention to decisions on whether
to impose custodial or non-custodial sentences. It is also intended
to review the process by which sentencing guidelines are agreed
following the changes contained in the CJA 2003.
2. The Criminal Bar Association (CBA) has
been invited to make written submissions on these topics and we
understand that the CBA will be invited to make oral submissions
to the Inquiry at a later stage.
3. We have helpfully been provided with
a number of questions which may be appropriately considered within
these submissions but feel it would be helpful initially to try
and take an overview of the current situation as we see it.
4. The purpose of sentencing as set out
in the CJA, 2003 was expressed to be:
(a) the punishment of offenders;
(b) the reduction of crime (including its
reduction by deterrence);
(c) the reform and rehabilitation of offenders;
(d) the protection of the public; and
(e) the making of reparation by offenders
to persons affected by their offences.[41]
There are certain exceptions to these categories,
namely, offenders under the age of 18 at the time of conviction,
offences where the sentence is fixed by law, sentences relating
to certain firearms offences including minimum sentences, provisions
relating to dangerous offenders and sentences made under the Mental
Health Act, 1983.[42]
5. That list of purposes does not seem to
be in any particular order of importance. The inclusion of reduction
of crime as an aim including its reduction by deterrence is both
laudable and unrealistic as it is the experience of those who
deal on a daily basis with those who face this process that in
the large majority of cases the defendant has little or no appreciation
of the likely consequences of what they have done, often because
they do not expect to have been caught. We do not consider the
deterrent element of sentencing to achieve little more than making
criminals exploit those less exposed than themselves to serious
consequences to do their dirty work for them. The recent publicity
relating to the tendency of persons over 21 to get youngsters
not liable to the minimum five year sentence for carrying a firearm
to carry firearms for them is a case in point.
6. It follows from that observation that
when looked at in the context of the purpose of sentencing, we
do not consider that imprisonment as a sentence achieves any of
those purposes save those of punishment and protection of the
public. Against the background of a record number of prisoners
housed in inadequate and overcrowded conditions and being looked
after by a demoralised Prison Service and private companies, we
consider that the present political climate demanding ever longer
prison sentences with greater restrictions on the discretion of
the sentencing judge effectively undermines any potential improvements
which may have been achieved by the constructive use of present
sentencing powers. It seems to us that this very welcome re-visiting
of the effectiveness of the CJA 2003 should be focussed on the
importance of it becoming a basic tenet of sentencing policy that
imprisonment is a sentence of last resort, largely because it
is the least effective type of sentence. The problems of community
sentences being misunderstood by the public and misreported by
the media should not be allowed to deflect from emphasising that
it is those sentences which should be considered primarily by
the sentencing tribunal save in a relatively small number of cases
where it is perfectly obvious that imprisonment is the only appropriate
sentence and it is only the length which is to be considered.
7. May we also finally observe before passing
to the questions posed that the present length of sentences passed
on defendants who are convicted of murder involving guns is little
short of barbaric. Anyone who has been present in court when a
22 year old defendant is sentenced to life imprisonment for murder
not to be even considered for parole for 30 years would have little
difficulty in concluding that a prison housing a number of such
inmates is unlikely to be the sort of environment in which there
is a scintilla of hope of a favourable outcome for any of the
recipients of such a sentence.
8. What would a more effective long-term sentencing
policy look like?
We consider that the more important consideration
is what is meant by an effective long-term sentencing policy.
Is it how it looks to the public or what it achieves for the public?
A large part of the difficulty in passing effective community
sentences rather than short custodial sentences has been because
there is such emphasis on how the sentence appears to the public
as opposed to whether it is in fact the right sentence in a particular
case. A further difficulty is that the success of such community
sentences with stringent conditions attached will usually depend
on the resources of the Probation and associated services. Lack
of resources, insufficiently experienced personnel and insufficient
facilities will lead to the almost inevitable breakdown of such
sentences and the almost equally imposition of custody. The effectiveness
of a sentencing policy requires both positive results (bearing
in mind the purposes of sentencing) and the confidence of the
public that it is achieving those purposes. It is our view that
what is essential in order to achieve an effective long-term sentencing
policy is an informed acceptance by the public as well as those
more directly concerned with the criminal justice system that
success is not measured by the length of a sentence of imprisonment.
The effectiveness of properly administered community sentences
needs to be explained with conviction. Where sentences of imprisonment
have to be passed, the criteria for doing so needs to be structured
and clear. The present almost impenetrable maze of legislation
surrounding the imposition of such sentences has reduced the process
to an exercise from which the defendant appears to be as divorced
as any member of the public who happens to be listening and which
is unsurprisingly often misreported in the media. The simplification
of the process is in our view essential in order to achieve any
effective long term policy and that should be accompanied by allowing
the sentencer as much discretion as is compatible with a the desirability
for general consistency in the level of sentences for particular
offences.
9. What steps might be taken to reduce the
prison population whilst retaining public confidence in the criminal
justice system?
The use of short term imprisonment for such
low level offending as failing to pay council tax, buy a television
licence or for driving offences could be avoided entirely without
loss of public confidence. Community sentences are ideal for such
offending. The worrying increase in the number of punitive orders
being made without conviction (ASBOs, conditional cautions, fixed
penalty notices etc) is likely to increase rather than decrease
the use of imprisonment. The increasing use of suspended sentences
is an effective way of combining the two particularly when combined
with community punishment but must not be used as an alternative
to a more appropriate community sentence.
Weekend custody as a possibility has many advantages
in appropriate cases and may be easier to police than strict weekend
curfews coupled with a community sentence but is unlikely to be
seen by the public as particularly punitive. A community sentence
should be the right sentence to pass where it is clear that public
protection is not an issue.
10. What steps should be taken to get people
from vulnerable groups (women, young people, mentally disordered,
alcohol and drug addicts) and minor offenders out of prison?
We consider that this question demonstrates
the importance of looking at the offence of which a defendant
has been convicted as well as the circumstances of that particular
defendant. We would endorse the desirability of keeping young
people out of custodial institutions whenever it is possible and
clearly the mentally disordered should not be in prisons. The
problem with identifying such disorders within prison often goes
back to the resources within the prison as well as finding the
facilities and resources to provide appropriate care on release.
Over-crowding magnifies both problems. The presence of those with
treatable addictions in prison should only happen if their offence
makes such a sentence the only option and then preferably to an
establishment where appropriate treatment can be made available.
The mere presence of such an addiction, however, should not of
itself mean that prison is not the inevitable sentence for those
who continue to offend. The responsibility for young children
should be a good reason for considering every other option before
prison regardless of sex and this is often going to be a relevant
consideration for women rather than men. We would not consider
a defendant without such dependants to be necessarily considered
as a member of a vulnerable group. It is often the case, however,
that women are sent to prison for persistent low level offending
when other options have failed. We do not consider that custody
is the right sentence for such an offender regardless of sex and
would welcome such sentences being immediately suspended with
appropriate community punishment. The establishment of hostels
for such offenders run by probation officers to ensure both support
and compliance would be a more constructive way of dealing with
this common problem.
11. How can community sentences be more appropriately
used?
Accommodation is often a problem with people
who fall within the borderline of custody and community penalties.
Hostels specifically geared towards such offenders would enable
more such orders to be made but would require a considerable and
continued investment in providing the necessary support form the
Probation service both in order to assist the court, during the
sentence and almost as importantly, afterwards.
12. What is the role of restorative justice?
As part of the overall sentencing process and
used sensitively it can be effective in some cases. It is not
appropriate in all cases but when it is, it needs to be explained
in open court in a positive and considered way.
13. Should short term imprisonment be abolished
and, if so, how?
We consider it to be of the utmost importance
that the sentencer has as much discretion as possible to pass
the appropriate sentence as circumstances vary so greatly. In
many cases such a sentence is punitive and disruptive to a disproportionate
level but it would be wrong to prevent the imposition of such
a sentence in any circumstances.
14. How can the system of recalls for offenders
who breach community sentences or licence conditions be improved?
The present provisions dealing with recall on
licence confer a very broad discretion on the Secretary of State
regardless of breach of licence or further offending. This is
at odds with general practice in relation to breaches. There seems
to be no good reason why there should not at least be the opportunity
to make representations prior to recall.
15. Should it be more difficult to qualify
for indeterminate sentences for public protection?
This single complex sentencing provision has
caused more anxiety and confusion than any other. It is now said
that lack of resources within the prisons means that prisoners
are not even being considered for release until after the end
of the determinate period. It is absolutely crucial that this
sentence is revisited. The number of such sentences being passed
is much greater than one imagines was anticipated because of the
wide-ranging criteria and it is considered by many that it is
essential that the criteria be re-considered.
16. Should the use of conditional cautions
and referral orders be extended?
The increase in the use of penalties such as
these is a cause for concern as they can lead to disproportionate
and punitive sentencing for allegations which have not been subject
to due process of law. We are firmly of the view that not only
should such penalties not be extended but those already in force
or anticipated should be the subject of careful monitoring to
ensure the consequences are not leading to injustice.
17. Given that many persistent offenders commit
minor offences, ho would you recommend dealing with them?
As set out above, such offenders are a nuisance
to the community and should be dealt with in a way which involves
them repaying their debt by constructive work within the community
under the supervision of the probation service.
18. To what extent has public confidence in
sentencing been eroded (eg by the media) and what can be done
about this?
The sentences of imprisonment that are passed
under the current legislation are often lengthy even after the
deduction of discounts. It is the complications involved in explaining
them that seem so absurd if mis-reported and/or misunderstood.
If the full substantive sentence which the sentencer considered
to be appropriate is stated clearly at the beginning of the sentencing
exercise, the remainder of the exercise should be seen in context.
A discount for pleading guilty is perfectly appropriate, the advantages
to witnesses and the public are obvious. There can be no possible
objection taken to time on remand being taken into account. The
misreporting comes when explaining when the defendant is released
on licence. The potential for damage could perhaps be lessened
if it were emphasised that the defendant is liable to be recalled
at any stage of the sentence. Equally, it might be considered
publishing in full the sentencing remarks in any controversial
case. It would also be extremely helpful if politicians would
refrain from attempting to make political capital by making ill-considered
and inaccurate comments on a sentence passed in a particular case.
The damage caused by that both to the individual judge and the
criminal justice process cannot be over-estimated.
19. How can arrangements for the rehabilitation
and resettlement of offenders contribute towards more effective
sentencing?
The involvement of the Probation Service is
absolutely crucial in this important aspect of sentencing although
we anticipate that their effectiveness will be dictated by the
resources available. We can only hope that the significance of
a successful outcome to the consequences of offending will enable
greater resources to be made available.
20. Should the sentencing guidelines process
be changed? If so, how? Is the current approach the most appropriate?
We welcome the assistance provided by the SGC.
Consistency in sentencing is desirable where it can be achieved
without injustice in a particular case. We are anxious, however,
to emphasise the importance of the fact that they are guidelines
as opposed to rigid directions. It may well be appropriate to
require reasons to be provided where the guidelines are to be
departed from but the discretion of the sentencer sentencing a
particular defendant on the facts of a particular case should
remain paramount.
21. We apologise for the length of these
submissions and hope that our observations are of some assistance.
We would welcome the opportunity to make oral submissions in due
course.
Sally O'Neill QC
William Hughes
April 2007
41 S142(1) CJA 2003. Back
42
S142(2) CJA, 2003. Back
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