Select Committee on Home Affairs Written Evidence


22.  Memorandum submitted by The Magistrates' Association: Sentencing Policy & Practice Committee and Judicial Policy & Practice Committee

1.  What would a more effective long-term sentencing policy look like?

  We have a clear sentencing policy set out in the Criminal Justice Act 2003, with guidance from the Sentencing Guidelines Council. This is based on the concept of seriousness, and society's understanding of that is crucial.

  For sentences to be effective there is a need for proper and sufficient funding of the Probation and Prison services so that effective programmes can be offered to all in need of them. At the moment, the Probation Service is not always able to deliver a swift response to courts that need reports, neither is it able to offer all the programmes that it should be doing. Prisons are over-crowded and cannot offer the education/work/training/rehabilitative programmes that will lead to a reduction of re-offending.

2.  What steps might be taken to reduce the prison population whilst retaining public confidence in the criminal justice system?

  It is vital that any "steps" taken to reduce the prison population are not in any sense pressure on independent sentencers, nor seen as such, because this would in itself have a disastrous effect on public confidence. This applies equally to executive action on release from prison which again can be interpreted as overriding sentencing decisions by the judiciary. A change in legislation, with extensive consultation to begin with, would give the opportunity for public debate and finally parliamentary decision. The key to this is society's understanding both of what it is that constitutes a serious offence, and the fact that punishment in the community can be appropriate for some serious offences. What is needed is greater public acceptance of this fact. This necessitates an increase in public confidence in community penalties—which  must include better resourcing for probation, good local links and a halt to changes that lower morale in the service. High profile work carried out in the community with the community being able to have an input into what work needs to be carried out could contribute to a better understanding. Experience in projects such as Local Crime Community Sentence has shown that when people understand that community sentences can be much more onerous than a few weeks doing very little in prison they recognize that community sentences can be more appropriate.

  Speeding up the rate of deportation of foreign nationals who have completed their sentences and increasing facilities for offenders suffering mental health problems would greatly reduce the prison population.

3.  What steps should be taken to get people from vulnerable groups (women, young people, the mentally disordered, alcohol and drug addicts, and minor offenders out of prison?

  In the first place, there should be no assumption that because people come from vulnerable groups then prison is inappropriate. There will be circumstances when this is the right disposal; people are given custodial sentences because they have committed serious crimes. There are however, circumstances where it would be extremely helpful to have better provision elsewhere for those with particular needs. More resources are needed to provide alternative accommodation to protect such vulnerable groups. If they have, for instance, mental health needs (not great enough for a hospital order to be a possibility) but pose a danger to the community then without alternative provision prison may be inevitable. However, a non-custodial sentence could be considered if proper provision were in place to guard against the risk to others.

4.  How can community sentences be more appropriately used?

  The legislation and guidance is very clear that community sentences can only be justified if an offence is serious enough to warrant them. That is perfectly appropriate. Resources must be available to ensure that offenders are supervised effectively.

  If an offender says that he cannot do unpaid work because of a medical condition he should be required to produce a medical certificate.

5.  What is the role of restorative justice?

  Reparation is one of the stated purposes of sentencing. There are interesting restorative justice schemes in place but it is important that they are properly administered with everyone's full consent (rather than being imposed in any way by a court) as such an approach is not acceptable to everyone.

  Research indicates that a restorative approach to justice, when an offender is faced by his victims, is more effective than when he is not. The problem is that victims do not always want to see the person who has assaulted/robbed/harassed them. More must be done to make restorative justice less of a burden upon the victim.

6.  Should short term imprisonment be abolished, and if so, how?

  No. The idea that prison sentences have to be long enough for something to be "done to" people is misconceived. Custody, of whatever length, is a sentence to mark an offence of particular seriousness, and that is NOT the same as something that poses immediate physical danger. Major fraud including breach of trust—very persistent offending showing contempt for court orders (and therefore the whole system of law and order)—breach of community penalties—hard core fine defaulters—all these are serious matters that could justify custody. There has got to be an ultimate and totally enforceable punishment for these non-compliers. The statute says that prison should be imposed for as short a period as is commensurate with the seriousness of the offence, and that could mean a short term.  

7.  How can the system of recalls for offenders who breach community sentences or licence conditions be improved?

  It is important that offenders who breach are brought to court more quickly. The period between unacceptable absences and an appearance in court is usually too long so that the offender receives the wrong message. An individual who fails to attend an unpaid work session at the weekend should be returned to court on the Monday or at least within one week. Local communities want to know that court orders are being implemented and obeyed.

  At present, if an order is breached magistrates must either make the requirements attached to the order more onerous or must revoke and re-sentence. However, we need to consider whether the court should once again have the opportunity of fining the defendant and allowing him to continue with the community sentence. Legislation should not restrict sentencers' discretion and should make allowance for the offender who may basically want to comply, but relapses on the way to rehabilitation.

8.  Should it be more difficult to qualify for indeterminate sentences for public protection?

  No comment.

9.  Should the use of conditional cautions and referral orders be extended?

  Conditional cautions (together with simple cautions, fixed penalty notices and penalty notices for disorder) are out of court disposals and in relation to these the answer is—most definitely not. It is already possible for these out of court disposals to be misused, applied to cases that are serious enough to come to court. Taking more cases out of the formal justice system, with all its checks and balances and impartiality, will simply reduce confidence in the system. In relation to referral orders, at present only available in the youth court, these at least do involve the court but in a way in which the sentencers' discretion is severely limited and an extension of this concept would not be helpful.

10.  Given that many persistent offenders commit minor offences, how would you recommend dealing with them?

  There is no simple answer to this—each offender (whether persistent or not) is an individual. Previous convictions must be treated as an aggravating factor where the court considers this reasonable, and that will apply in some circumstances for previous minor offences. Similarly, offences committed on bail aggravate seriousness - and the determination of seriousness is at the beginning of the sentencing decision.

11.  To what extent has public confidence in sentencing been eroded (eg by the media), and what can be done about this?

  Generally the media are only interested in bad news. Some offenders who receive community sentences do not re-offend. There needs to be much more balanced and objective reporting and information on re-offending rates would assist this process. However, erosion of confidence has been caused at least as much by conflicting political messages as by the media. A consistent message would help enormously. Events to demonstrate to the media and the public how our sentencing process works and how we are working to specific guidelines are also helpful. The Magistrates' Association Magistrates in the Community Project, together with Local Crime Community Sentence, have been extremely successful.

  The 30% reduction for a guilty plea is not widely understood. The explanation of a sentence—half only to be served etc—is all seized upon by the tabloid press and made much of. The questions of licence conditions, HDC and executive recall should be better understood, explained and publicised.

  It would also be useful to:

    —  Confine use of fixed penalties to the most minor offences where there is no question of compensation.

    —  When a court follows the law and makes a sentence that the media latch onto as inappropriate (as in the case of Craig Sweeney) the government should support the decision of the court.

    —  Encourage victims to prepare a statement to be given to the court.

12.  How can arrangements for the rehabilitation and resettlement of offenders contribute towards more effective sentencing?

  By retaining local involvement, including that of sentencers, in local probation services. That will improve confidence between sentencers (who are also members of the public) and probation staff.

13.  Should the sentencing guidelines process be changed? If so, how? Is the current approach the most appropriate?

  The current process is appropriate.

March 2007





 
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Prepared 11 June 2007