Q
195Mr.
Garnier: Could you just draw out the implications of your
last
sentence? Professor
Hough: If one is trying to be responsive to public
opinion in any way, we should consider that people feel that for grave
offences, resources should not
enter the judge’s or the magistrate’s mind. However, for
run-of-the-mill offences, if people are asked whether the fact that
this sentence costs £30,000 and that one costs £10,000
should enter the magistrate’s mind, they will say yes.
Juliet
Lyon: In terms of the numbers of people going through
the courts and the sentences that are being handed down, we have seen
sentence inflation, which you have drawn attention to. Lord Justice
Gage’s report draws attention to the fact that a number of the
sentences are now outside the guidelines, and they are outside at the
top end, not the bottom. Anything that would curb sentences or bring us
within a margin—not a grid—would be wise, because things
become absolutely out of hand, to the social and economic detriment of
everyone.
Q
196Mr.
Garnier: Gillian Guy and Paul Cavadino, would you like to
comment on my
questions? Gillian
Guy: Can I make a comment about rationing the
criminal justice system? I think it would do little to build confidence
among the general population, who suffer more from a fear of crime than
crime itself. The point is managing the criminal justice system and the
punishment system. As I have said, that means thinking about the
required outcomes on reoffending, restitution and punishment. We should
think about what can bring about those outcomes. There are a range of
options, and we can talk about managing allocation without going into
rationing, which is a dangerous
term. Paul
Cavadino: In my view, it would obviously be sensible
to have a greater correspondence between the level of sentencing and
the resources available, including the number of prison places. Prison
overcrowding reduces the effectiveness of sentences by making it harder
to rehabilitate offenders and reduce reoffending. The Bill does not
require rationing of penal resources; it requires the publication of an
assessment of the resources that would be required in order for any
particular set of guidelines to be
implemented. That
means that policy makers, seeing that assessment, have a decision. They
can decide either to plan to provide additional resources, if
additional resources are required, or they can decide to legislate to
change the parameters within which sentencers operate in order to
ensure that there is a different level of sentencing for some or all
offences that corresponds with the reasonably foreseeable resources.
The approach of requiring an individual sentencer to decide what he or
she does because of resources is one that would not be consistent with
the interests of justice, but we need to find a better way to bring
sentencing levels in line with the resources available. Publishing an
impact assessment means that policy makers would be able to see what
the real impact of the guidelines would be and make policy choices
accordingly.
Q
197Mr.
Garnier: Can I ask one of you from the Magistrates
Association? John
Thornhill: We have concerns about this particular
issue, and certainly about resource-sensitive justice. It is very clear
that each individual should be sentenced appropriately. It would be
inappropriate if one week a particular offender received a particular
sentence and the following week, because of resource implications, a
different offender with a similar and like offence received
a different sentence. That would be wholly inappropriate, and it would
undermine any confidence in the criminal justice system, particularly
in sentencing. It would effectively be, as it is sometimes referred to
in other situations, sentencing by postcode. That would be entirely
inappropriate, and it would mean that you are taking discretion away
from the judiciary. We must keep that separation of powers.
We already
have something like that in the early release scheme. At the moment,
different offenders in different places are being treated differently
under the early release scheme. Again, we think that that is
inappropriate if a sentence is imposed according to the sentencing
guidelines and there is no cogent evidence to say that, in terms of the
magistrates courts, we are outside the guidelines. There is no cogent
evidence for that; in fact, the evidence suggests otherwise. In those
circumstances, we accept the principles explained. It is right to do
cost assessments, but they should not impinge on the judiciary in the
courtroom.
Q
198Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): The
sentencing council will be dominated by lawyers, and specifically by
judges. Can I ask each of you, starting with Professor Hough, how we
can ensure that its guidance is driven by consideration of what works
and the objectives of cutting offending and reducing reoffending, not
just by court-based experience tempered by resource issues, which is
where this conversation has been since we started this
morning?
Professor
Hough: This is a very self-serving answer, but
obviously research needs to feed into the council’s work. I am
pleased to see that there are plans in the Bill to have statisticians
and researchers in the council, but there are plenty of other research
resources to draw
on.
Q
199Alun
Michael: There is no guarantee that they will be listened
to, though.
Professor
Hough: There never is.
Juliet
Lyon: That brings me back to the remark that I made
about public confidence. It would be acceptable not only to sentencers
but to the public to see it led thus. They are more likely to feel that
they can trust the information, if they see it as independent. If they
see that it might have a political bias, I think that we would get a
withdrawal of
confidence.
Q
200Alun
Michael: I think that in evidence elsewhere, Gillian Guy
has said that what victims want, other than for the clock to be turned
back so that they did not become victims in the first place, is for it
not to happen again. Should that not be a big focus for the sentencing
council?
Gillian
Guy: From my point of view, it absolutely should. I
have already listed the kinds of thing that we look for as outcomes. I
understand why the sentencing council is comprised as it is, but I do
not see any reason why it should not open its doors to other views and
other people in order to keep that perspective coming
through. Paul
Cavadino: The sentencing council, according to the
Bill, will have eight judicial members and six lay members. Schedule 13
sets out a range of different expertise and experience that the lay
members should have between them. It seems to me that there is an
astonishing omission—the requirement for at least one member of
the council to have experience in the rehabilitation of offenders. If
the council is required, among other things, to take account of the
effectiveness of different sentences in reducing reoffending, which the
Bill requires, it seems very odd that the otherwise excellent list of
experience of different types required of the lay members does not
include experience in the rehabilitation of
offenders.
Q
201Alun
Michael: You referred to effectiveness being among other
things, but should it not have
primacy? Paul
Cavadino: In my view, it should clearly be a major
consideration in sentencing. Proportionality clearly has to be an
important factor in sentencing. In other words, we must try to get a
sentence of a severity that corresponds to the seriousness of the
offence, because if we do not have that, it is not a system of justice,
but a system of social engineering. Within those parameters, it makes
complete sense to look for the sentence that will be the most
effective.
Q
202Alun
Michael: In that case, is not your suggestion of having
one person who has some experience of rehabilitation remarkably
modest? Paul
Cavadino: Well, I am a remarkably modest person, but
it seems to me that that is a reasonable and modest
proposal.
Q
203Alun
Michael: Turning to the Magistrates Association, we are
again talking about the majority of sentences handed out. Would not
magistrates welcome an emphasis on effectiveness and, in effect,
assistance in the judgments they make by enhancing their knowledge of
the likely effectiveness of the sentences they pass, in the way that
Mr. Thornhill has just
described? John
Thornhill: Absolutely. We have no problem with being
provided with information and data about the effectiveness of
sentences. Indeed, magistrates will ask for that, but we then say that
the lines should go no further than providing that information for us.
We welcome the extension of the non-judicial members to a broader range
of people, particularly statisticians who will provide that
information. We all share the Gage report’s concern about the
lack of data, and that is one of the things that we would like to see
extended. We think, as the Justice Committee did, that the time is not
right for this particular Bill, but we welcome the idea of moving along
the road of finding greater information and providing more data on the
decisions that could be made. We would support that principle and move
along those lines. Clearly, it provides the judiciary with the
information about the effectiveness of sentences, and although we have
lots of statistics already, we think that we need a lot more, and then
the judiciary should be left to make the decisions in
court.
Q
204Jeremy
Wright (Rugby and Kenilworth) (Con): May I first apologise
to the witnesses for missing the beginning of the evidence session? I
want to ask about special measures and suspect that the questions would
be best directed to Gillian
Guy.
The
Chairman: Order. You bid to ask about
sentencing.
Jeremy
Wright: I bid for special
measures.
The
Chairman: In that case, I ask you to hold those questions
and call George
Howarth.
Q
205Mr.
George Howarth (Knowsley, North and Sefton, East) (Lab):
Mr. Thornhill, you made a fairly passionate plea for
judicial independence and discretion, particularly with regard to
magistrates being able to sentence as they see fit, and nobody demurs
from that. You made it clear that you did not think considerations
about the availability of custodial places should have any impact on
the sentence. Can you give the Committee an absolute assurance that
those sitting in the City of Liverpool magistrates court are not
influenced when sentencing by the availability of prison
places? John
Thornhill: Obviously, I cannot speak for every single
magistrate, as that would be inappropriate, but as far as I am
concerned, and certainly this is the case with colleagues with whom I
have sat, no one has ever taken that into consideration. It does not
enter our
heads.
Q
206Mr.
Howarth: Bearing in mind that I probably know some of the
people who sit on the bench in Liverpool, can you categorically state
that the clerk of the court does not ring round before a session to
find out about the availability of prison places and—on
occasion—advise the sentencer that should a custodial sentence
be given, no place will be
available? John
Thornhill: I cannot answer that question, and it
would be inappropriate for me to do
so.
Q
207Mr.
Howarth: Given what you have already said, it would be
entirely appropriate for you to answer that question.
John
Thornhill: I cannot answer for what clerks do or how
they behave. I can say only that magistrates do not discuss that
particular issue. If you are saying, and have
evidence—
Mr.
Howarth: I am asking a question.
John
Thornhill: And I am saying that I cannot answer that
question.
Q
208Mr.
Garnier: As a sentencer who sits in the Crown court, I can
tell you that I have never heard of any judge passing a sentence
because he has read in the newspapers, or been told in the dining room
at lunch, that the prisons are
full.
Q
209Mr.
George Howarth: It is helpful,
Mr. Cook, to have Mr. Garnier guide us in this
way, but it is for me to ask the questions and for the witnesses to
answer them.
John
Thornhill: Are you referring to secure accommodation
or to prison places?
Mr.
Howarth: I am talking about prison places.
John
Thornhill: Prison places. Well, I certainly cannot
answer for what the clerks do. I do not know the answer, and it would
be totally wrong of me to try to surmise anything about what the clerks
do or do not do.
John
Fassenfelt: From my experience as a long-serving
magistrate in Kent, I can say that a clerk has never advised me
concerning the availability of prison
places.
Q
210Mr.
Howarth: Perhaps we should move on. At the moment, if the
totality of sentences handed down by all the courts exceeds the number
of prison places, the only safety valve in the system is early
release—I think you referred to that earlier, Mr Thornhill. Is
early release probably the least desirable way of dealing with an
excess of
sentences? John
Thornhill: No, because that sends a message that the
sentences imposed will in fact be curtailed at an early stage. Many
magistrates are frustrated by this—we have had resignations from
the magistracy because of the early release scheme—and it seems
to me that there must be other ways of managing that particular
situation.
Q
211Mr.
Howarth: So you agree that early release is a very
unsatisfactory way of dealing with this issue?
John
Thornhill: Absolutely.
Q
212Mr.
Howarth: Thank you. Mr Cavadino, you were a member of the
Gage working group, as was I. Do you see anything in clauses 107 to
109, or anywhere else in the Bill, that would require sentences to be
passed based on an understanding of the current availability of prison
places?
Paul
Cavadino: No. Clauses 100 to 118 and
schedule 13 are based solidly on the recommendations of the
sentencing commission working group chaired by Lord Justice Gage. The
group considered whether sentencing guidelines should be required to
take account of penal resources. It decided by a majority to recommend
that they should not, and that an impact assessment should be produced
so that policy makers would be made aware of the impact on resources.
That issue was specifically considered by the working group. Its
recommendations were specifically against doing that, and the
provisions in the Bill are based on those recommendations. Nothing in
the Bill requires individual sentencers, or sentencing guidelines, to
take account of penal
resources. Policy
makers need to find a way of bringing sentencing levels and penal
resources more into line, first because prison overcrowding makes it
harder to carry out sentences effectively, and secondly because it
leads to an undermining of the sentence by the early release scheme.
The concerns expressed about the early release scheme by the
Magistrates Association are a powerful argument for trying to find a
better way of aligning sentencing levels with penal resources. The
Government have chosen to do that in the Bill expressly by not
requiring sentencers to take that into account when
sentencing.
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