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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