4 The crucial elements for scrutiny
Cost and relative effectiveness
of sentencing
47. The Sentencing Guidelines Council is required
to have regard when framing sentencing guidelines to the cost
of different sentences and their relative effectiveness in preventing
re-offending. The first problem this presents is that preventing
re-offending is only part of the five purposes of sentencing set
out in the Criminal Justice Act 2003, and that these purposes
themselves are consistent neither with each other nor with sentencing
guidelines.
SEEKING A CONSENSUS AS TO THE PURPOSE
OF SENTENCING
48. The Criminal Justice Act 2003, described by the
Ministry of Justice as "the principal sentencing statute,"[65]
sets out five purposes of sentencing, to which any court dealing
with an offender must have regard:
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.[66]
We note that these five purposes of sentencing are
not the same as those matters the Sentencing Guidelines Council
is required to consider when drawing up sentencing guidelines.
49. Professor Ashworth raised difficulties with those
five purposes:
"I think it was a mistake to put them where
they are, for two reasons. First of all, because they are contradictory
I think it is very difficult to pursue two of them in particular
cases, and I think giving the court the choice rather than having
a hierarchy of purposes is a mistake in itself, but, more importantly,
I cannot see how it is consistent with the idea of sentencing
guidelines because if you have sentencing guidelines you cannot
possibly have judges or magistrates deciding which purpose they
will pursue today."[67]
Professor Ashworth is supported by David Faulkner,
Senior Research Associate at the University of Oxford and a former
senior home office civil servant, who commented: "there is
no recognition of the differences between them [the purposes of
sentencing set out in the Criminal Justice Act 2003] or of the
implications of those differences"[68].
Professor Mike Hough struggled with the logic of the five purposes:
"They also bear a very strange relationship
to each other in that there is a sort of logical relationship
between punishment as a purpose and punishment as a process of
justice. Criminal law implies punishment. The other four objectives
are things that one might pursue within the envelope of punishment."[69]
50. The Government also seems to struggle with the
five purposes of sentencing it set out in the Criminal Justice
Act 2003. The Secretary of State for Justice and Lord Chancellor,
in a speech accompanying a policy statement as to how the Government
deals with offenders, stated "We should not shy away from
the fact that the sentences of the court are first and foremost
for the punishment of those who have broken the law".[70]
This may suggest that the purposes of sentencing set out in the
Criminal Justice Act 2003 were meant to be in a hierarchy, but
the title of the Government's policy statement, Punishment
and Reform, takes the first and third in the list.[71]
This confusion over the purposes of sentencing may reflect confusion
over the purposes of the criminal justice system as a whole.
51. The lack of consensus as to the principles of
sentencing leads to a lack of consensus in application. Professor
Hough told the Committee: "In terms of sentencing principles,
sentencers all seem to be highly attached to proportionality".[72]
Thus sentencers prioritise the punishment purpose, in the principle
of proportionality, that the punishment should fit the crime.
Rt Hon Lord Justice Laws embodied this perception when he described
the courts' "paradigm function in sentencing, which is the
execution of retributive justice."[73]
The Magistrates' Association similarly suggested that while the
aim of punishment is a constant in sentencing, others may be less
integral: "Not all sentences are designed to reform—that
is one of the purposes of sentencing—there is always a punishment
element."[74]
52. The prioritisation of the aim of punishment by
sentencers may reflect the concept that the punishment of sentencing
has a different function than other aims, for example rehabilitation.
David Faulkner split the purposes of sentencing into three:
- first the declaratory and retributive,
to condemn an individual's behaviour and to punish, the test of
whether justice has been done;
- second the utilitarian and instrumental purpose,
to protect the public and reduce crime through for example imprisonment
to control the offender and rehabilitation to prevent future crime;
- the third the reparative, to repair the damage
done.
He comments "it has historically been the practice,
to see the court as concerned with the retributive function […]
and the executive, principally the prison and probation services,
as responsible for the instrumental function."[75]
On such as basis, the court's key purpose would be to send a signal
in a way the public understand that the individual has been found
to have done wrong. However, how a sentence is carried out (for
example through imprisonment or community) would be determined
on the basis of instrumental purposes. This will be discussed
further in Justice Reinvestment.
53. Meanwhile other actors in the criminal justice
system prioritise different purposes of sentencing. Victim Support
note the value of consistency; something the Sentencing Guidelines
Council has to have regard to when drawing up sentencing guidelines,
though it is not a purpose of sentencing:
"we pick up that they [victims] would like
to see some consistency so the expectations can be real and can
be managed, some transparency around the system, explanations,
where they are due and available, as to why certain sentences
were passed and others not, and, I suppose, an overwhelming need
for some sense of fairness."[76]
Victim Support also emphasised the importance of
rehabilitation:
"what we absolutely know around victims,
and that is that what they want, apart from the impossible, which
is to be put back in time to where it did not happen in the first
place, is for it not to happen again".[77]
Nacro considered the potential conflicts between
aims of reducing re-offending and of proportionality: "if
we simply were to look at it from the point of view of what would
reduce offending without any element of proportionality, then
it would not be a system of justice."[78]
Nacro concluded that reducing re-offending should take primacy:
"it does not do anyone any good to sentence
an offender to a penalty that is more likely to result in re-offending
and, therefore, more likely to result in distress and loss to
future victims, simply because the court is asking: what is the
sentence that will punish the offender sufficiently?"[79]
54. In contrast to sentencers' prioritisation of
the aim of punishment, achieving the reparative purpose of sentencing
appears to be hampered by ineffective systems and inadequate resources.
Victim Support suggest that the systems for compensation actually
made the experience of crime worse:
"Because of the people that we are seeking
to get the compensation from, it is very difficult to be able
to get the amount of money that actually equates to what we might
call reparation, certainly not restitution. I think to some extent
as well it can, in its current form, prolong the experience of
the crime, because piecemeal payments over a period of time merely
prolong the agony to some extent, and sometimes for very small
sums of money, and there is a burden currently on the victim to
decide whether to pursue that option or not."[80]
Helen Leney, Acting Manager of the restorative justice
service Thames Valley Statutory Adult Restoration Service (TVStars),
suggests that restorative justice approaches may be a way to achieve
the reparative aim of sentencing: "Restorative justice looks
at what harm has been caused and how that harm can be repaired".[81]
Victim Support supported the notion of restorative justice but
emphasised that it must be an offer, not an imposition, on the
victim and that the offender must also be willing for it to be
a positive experience for the victim.[82]
Whilst incorporating restorative justice into a sentencing system
presents challenges, these do not seem insurmountable; Helen Leney
quoted a letter from the Bench Chair of her local Magistrates
which said:
"As sentencers in the Thames Valley, we
are extremely concerned that we are about to lose a much valued
option in our courts to make restorative justice a specified active
requirement also, as a consequence, denying the wishes of victims
in a significant number of cases."[83]
A greater challenge may be in providing restorative
justice services consistently across the country: "there
is absolutely no reason why restorative justice cannot be rolled
out across the whole country, indeed I think it should be, but
it has got to be funded, and that is a big problem."[84]
55. There are doubts that some of these five purposes
of sentencing can be achieved at all. We heard evidence from RoadPeace,
the Royal Society for the Prevention of Accidents (RoSPA) and
the Crown Prosecution Service (CPS) on sentencing offences of
causing death by driving; all of these doubted that sentencing
had a general deterrent effect in death by driving cases. RoadPeace
commented: "We do not think that increasing the sentences
for causing death by driving has any deterrent effect. No-one
expects to be in a fatal crash let alone responsible for one."[85]
RoSPA concurred:
"I think sentencing does send out a message
about acceptable and unacceptable behaviour. I do not believe
that it provides any sort of road safety deterrent. I do not believe
that it affects the behaviour of the driving public. […]I
do not think we should kid ourselves that if we see very consistent,
strict sentences being handed down for people who kill on the
road that that is going to result in an improvement in driver
behaviour."[86]
One possible explanation is that prevention of crime
(including its prevention by deterrence) is not a purpose of sentencing
with regard to these specific offences. The CPS considered the
characteristics of the offenders for example: "It may be
an appalling piece of driving but they are frequently people who
do not have a lengthy criminal record."[87]
Therefore, rather than deterrence, the sentence might involve
"a large element of condemnation".[88]
This might therefore support the concept that sentencers choose
from the different purposes of sentencing depending on the circumstances
of the case, but this then comes into conflict with those matters
which sentencing guidelines should have regard to, including consistency
and effectiveness in preventing re-offending.
56. There are also doubts about whether particular
types of sentencing can meet the purposes set out in the Criminal
Justice Act 2003. We heard criticisms in particular about short
custodial sentences (usually taken to mean sentences of imprisonment
of 12 months or less). Paul Cavadino, Chief Executive of Nacro,
said:
"I personally cannot see a great deal of
point in short prison sentences. They have a containment effect
which is very limited because the period is short, they are not
long enough for any serious rehabilitation attempt, they are long
enough often for an offender to lose their home or lose their
job, if they have got one, which makes them more likely to reoffend,
and short sentence prisoners have by far the highest reconviction
rate […]. It seems to me that there is little point in repeatedly
using short prison sentences which imprison people in overcrowded
prisons and neither rehabilitate them nor deter them."[89]
Nicola Padfield, from the University of Cambridge,
meanwhile questioned whether short custodial sentences achieved
any aims of sentencing:
"We still live in a rather tedious sentencing
world of custody, community penalty, fine, as though a short custodial
sentence is always a 'tougher' penalty than a community penalty
however tough. We have to do an awful lot of thinking in terms
of creating better alternatives for sentencing which involve not
thinking that once you have crossed the custody threshold we are
into the tougher sentences; actually those short custodial sentences
we all know are ineffective on most measures of effectiveness,
whatever your measures of effectiveness are."[90]
On this basis, if sentencing guidelines are framed
with regard to the relative effectiveness of different sentences,
we would expect to see few guideline proposals for short custodial
sentences.
57. The confusion and lack of clarity as to the purposes
of sentencing makes it difficult to consider sentencing in terms
of effectiveness, as it is not clear what takes precedence in
terms of effective sentencing. There are also consequences in
terms of the lack of public confidence. Ian Loader, Oxford University,
commented:
"The crisis of the penal system in England
and Wales is testament to the fact that it lacks a coherent public
philosophy, a story about why and whom, what way and how much,
we punish that can really connect with public thinking about crime
and society."[91]
We consider public confidence in sentencing in more
detail below.
THE COST OF SENTENCING
58. The Sentencing Guidelines Council is required
to have regard to "the cost of different sentences and their
relative effectiveness in preventing re-offending" when framing
sentencing guidelines.[92]
We have seen above the difficulties that arise in considering
the effectiveness of different sentences. Our experience with
sentencing guidelines suggests that considering the costs of different
sentences is also problematic.
59. Questions about costs and sentencing are controversial
ones. The debate over the merits of a new sentencing body was
originally motivated by a desire to manage the size, and therefore
cost, of the prison population (and other correctional resources
such as probation services). Accordingly, when asked in January
2008 what policies were in place to reduce overcrowding in prisons,
the Secretary of State for Justice and Lord Chancellor stated:
"We have established a working group chaired
by Rt Hon Lord Justice Gage which will look at Lord Carter of
Coles' proposals for a Sentencing Commission in England and Wales.
Experience from other jurisdictions suggests that such an approach
can mean the drivers behind the prison population can be addressed
and managed in a transparent, consistent and predictable manner."[93]
Yet, a year later, the Lord Chancellor contradicted
this, stating: "The creation of a Sentencing Council has
no direct impact on the prison population. This is because there
is no requirement in the Coroners and Justice Bill for a sentencer
in an individual case to have regard to resources."[94]
The change in position may be motivated by concerns over one part
of the debate about costs and sentencing—whether an individual
judge should have to consider availability of resources when determining
the appropriate sentence in an individual case.
60. Rt Hon Lord Judge is unequivocal: "It would
be absolutely catastrophic if any individual sentence had to be
tailored to resources."[95]
Nicola Padfield, University of Cambridge, held a similar point
of view, saying: "Nobody could seriously be suggesting that
judges and magistrates should have a cap on the number of people
they could send to prison."[96]
However, there have been questions about whether lack of resources
are in reality, if not as a matter of policy, affecting sentencing;
in March 2008 Napo (the Trade Union and Professional Association
for Family Court and Probation Staff) reported: "It is clear
from this study that restrictions are being placed on sentencers
across the country as to what conditions they can add to community
orders."[97] This
supports what John Thornhill, Magistrates' Association, told the
Committee a year earlier:
"It is clear that one of the problems is
[…] a lack of programmes available. Magistrates would use
community based penalties with programmes that are tailored to
the individual needs of offenders. […] but very often we
do not have programmes which adequately address their needs. […]
That is a matter of resourcing […] we would use a wider range
of community based penalties so that we can tailor them to the
individual, but they are not there, and that is one of the difficulties."[98]
61. There is however a completely separate question
about whether decisions as to sentencing policy and the overall
sentencing framework should be made with an awareness of what
different sentences cost. Sentencers themselves are amongst those
calling for a debate on this matter. Rt Hon Lord Phillips of Worth
Matravers, then Lord Chief Justice, has stated: "The scale
of sentences is now largely determined by Parliament. Where within
that scale the facts of a particular offence fall is the judge's
task. Parliament should, when altering that scale, have regard
to the resource implications of the changes that are proposed."[99]
Rt Hon Lord Judge similarly commented:
"There is of course a public interest in
the use of resources. You are responsible for that. […] You,
as Parliament, [should be addressing] the fact that when you introduce
and agree to legislative change relating to sentencing, somebody
needs to work out what the cost is likely to be. Somebody needs
to say 'This will cost us two new hospitals, five new schools,
proper armour for our servicemen'."[100]
62. Professor Hough and Professor Ashworth also saw
benefits in considering the costs of sentencing. Professor Hough
for example pondered:
"It is certainly not desirable for there
to be a completely unplanned and uncontrolled upward drift in
sentencing, which is what we saw between 1991 and 2003. I think
some considered view of whether we are spending enough on particular
forms of punishment is better than nothing at all, which is what
has characterised the period up to now."[101]
Professor Ashworth similarly considered: "the
idea that there is economic pressure on sentencing exerts some
beneficial effect if it makes people think."[102]
The type of thinking Professor Ashworth was talking about was
in relation to "priorities" and taking a look at groups
of offences and considering whether they are "sentenced higher
than they should be relative to others."[103]
63. The Sentencing Commission Working Group would
have been an opportunity to consider whether and how the overall
legislative framework for sentencing should take into account
costs. It stated:
"the question of whether or not the overall
sentencing framework should be tied to financial resources is
a political issue. How Parliament's intentions on criminal justice
policy should be kept consistent with the capacity of the prison
and probation services to deal with sentenced offenders is pre-eminently
a political matter."[104]
Nevertheless, the Working Group made a number of
recommendations for a new sentencing body to provide resource
assessments of sentencing guidelines and legislative or policy
proposals from Government that would affect the capacity of prison
and probation services. The Coroners and Justice Bill makes provision
on the basis of these recommendations. The Working Group also
recommended that "Parliament should express its intentions
with regard to correctional resources at regular intervals."[105]
64. Rt Hon Lord Woolf suggested a slightly different
approach, whereby sentencers would be able to determine different
sentences that would meet the appropriate aims, and then take
cost into consideration as to which of these should be imposed:
"The judge should know how much the sentences that he is
imposing will cost the public. That is a very relevant matter.
If there is a suitable, cheaper option he should choose it."[106]
65. Implementing such an approach would require dealing
with limitations in available data. Professor Ashworth summarised
the difficulties: "The effectiveness of sentencing is something
we need to know about, but again we do not have reliable figures.
Even on cost it is very difficult to get absolute comparisons
which everyone agrees with. In terms of effectiveness, if we are
talking about re-convictions over a given period, we do not really
have up-to-date information on that which compares like with like."[107]
66. The five aims of sentencing set out in the
Criminal Justice Act 2003 are neither internally coherent nor
consistently applied. It is not clear whether the aims are intended
to be a hierarchical list or a menu to be combined differently
in different cases. It is not clear how the purposes of sentencing
relate to, or should be reflected in, sentencing guidelines. As
a result, the public, criminal justice organisations, victims,
sentencers and the Government all have different expectations
as to what sentencing is trying to achieve—suggesting that
someone, inevitably, will be disappointed.
67. It is set out in statute that sentencing guidelines
should be drawn up with regard to the cost of different
sentences and their relative effectiveness. This does not conflict
with the duty of the sentencer to determine the sentence appropriate
to the individual case. We acknowledge that this is made difficult
by the lack of clarity as to the purposes of sentencing, because
there is no clear and consensual standard as to how effectiveness
should be determined. However, this aspect must have greater prominence
in the development of sentencing guidelines. We will therefore
prioritise it for scrutiny.
Public confidence in sentencing
68. The Sentencing Guidelines Council is also required
to have regard to the need to promote public confidence in the
criminal justice system when framing guidelines. The lack of clarity
as to what sentencing is trying to achieve is one issue that may
hinder public confidence in sentencing. Our experience of reviewing
sentencing guidelines has also suggested that public confidence
may suffer from a lack of authoritative, contextualised information
about sentencing.
THE SENTENCING KNOWLEDGE GAP
69. Professor Mike Hough, King's College London,
identified a "substantial knowledge gap" in public knowledge
about sentencing.[108]
He observed: "People think you do not get sent to prison
for lots of offences—and you do."[109]
He described the difference in perception and reality in relation
to sentences for causing death by dangerous driving: "If
you ask people what they thought the offender would get, 31% said
prison, and in reality the best estimate is 'pretty certain prison':
95% of people convicted of that offence get a prison sentence."[110]
70. Professor Hough thought that the knowledge gap
about sentencing was part of more general misconception about
crime trends. He stated that two-thirds of people in England and
Wales believe that crime is going up and that this proportion
has remained consistent although levels and types of crime have
fluctuated.[111] Accordingly,
regardless what level of criminality is taking place: "People
approach sentencing with this background belief that crime is
inexorably on the rise."[112]
71. Professor Hough described a similar gap in public
attitudes towards sentencing. He stated: "if you ask people,
'are judges and magistrates tough enough?' […] Most people,
four out of five, think judges and magistrates are too soft".
[113] As with
the perception of crime, Professor Hough suggested that attitudes
had not changed when practice had, saying that this proportion
"has been remarkably consistent since we first devised this
question in 1995 or 1996 […] despite that fact that prison
population over the last 15 years has risen by a very substantial
amount and a significant factor underlying that increase is the
toughening up of judges' sentencing". [114]
72. Professor Hough's proposition as to why perceptions
of crime and sentencing did not change in line with practice was
"because people are insulated from what the courts do".[115]
The Local Crime: Community Sentence project confirms this
view. As part of these interactive presentations by sentencers
and probation, members of the public are given mock-up newspaper
reports, and asked to choose an appropriate sentence. They are
then given more information about the offence, the offender and
the potential options for dealing with them and again asked to
choose an appropriate sentence. 49.5% of those who initially felt
a prison sentence was appropriate did not believe this once they
had more detailed information than was present in a newspaper
report.[116] The Magistrates'
Association commented on this project:
"We do find that whenever we do one of these
presentations, you may start off with a group of the public of
whatever age and type who begin with a fairly harsh approach but,
once you have gone through the sentencing structure and the various
options available, it is quite staggering how they reduce their
feeling and realise that there are really effective penalties
that do not involve immediate custody."[117]
73. We heard that it is not only the general public
but also those directly affected by crime whose attitudes changed
when provided with more information. Helen Leney, Acting Manager
of the restorative justice service TV STARS (Thames Valley Statutory
Adult Restoration Service), talked about how having more information
about what an offender was doing on his or her community sentence
can make a difference to victims:
"A lot of victims feel, particularly for
a violent offence, that if the offender is not sentenced to custody
then they have got off, whereas if they come to one of these meetings
[restorative justice conference] and hear from the probation officer
exactly what they [the offender] are doing in their community
sentence, that is very reassuring for victims."[118]
74. Professor Hough pointed out that, when asked
to consider the questions a court must consider rather than general
questions as to the state of sentencing, people tolerate sentences
"pretty much in line with what happens."[119]
"The best example of that is a question
asked over successive British crime surveys: a 23-year-old burglar
with two previous convictions for burglary breaks into a bungalow
in daytime and steals electrical goods, and respondents in the
BCS [British Crime Survey] are asked 'What would he have got?'
and 'What should he have got?' On 'What would he have got?' roughly
one-third […] say 'Prison' and on 'What should he have got?'
nudging two-thirds say 'Prison'. What would he actually have got?
This guy is somebody who has actually been swept into the 'three
strikes and you are out' provisions for burglary and, unless there
are exceptional circumstances, the judge should pass a three-year
sentence." [120]
75. People who worked with victims told us that there
was a crucial need for more information about sentencing to get
to victims. Helen Leney, of the restorative justice service TV
STARS told us: "One of the most distressing things that victims
would say was, 'Nobody told me anything'. I saw one young man
who the first thing he knew of a sentence having been passed was
when he read about it in the local paper with his name in it."[121]
RoadPeace described the practical difficulties of really understanding
what a sentence means and of families of victims not getting information
about whether an offender had appealed against sentence and what
would happen next. [122]
76. Others identified the information gaps preventing
an informed public debate about sentencing. The Magistrates' Association
state: "There is insufficient reliable evidence either from
academic research or sentencing data to allow informed comment
to be made on the current sentencing process."[123]
Their concerns were validated by a pilot study seeking to collect
information using court records on sentencing practice in England
and Wales. The pilot concluded that some important (and basic)
information, such as aggravating and mitigating factors or previous
convictions, was likely to be unavailable, making it difficult
to understand the different factors that led to a particular sentence
being imposed.[124]
RoadPeace sought evidence as to the effectiveness of different
types of sentencing. It had not opposed the use of community sentences
for appropriate cases of the new offence of causing death by careless
driving, but felt strongly that its use "should be evaluated
[…] to show that it is not just a cheap option. Bereaved
families need to know that it is an effective one."[125]
77. In June 2009 the Sentencing Advisory Panel published
research into public attitudes to the principles of sentencing,
as part of their work drawing up advice to the Sentencing Guidelines
Council on the revision of the sentencing guideline: overarching
principles.[126] This
research considered a variety of issues in relation to public
attitudes and sentencing. Its findings included that people were
twice as likely to support than to oppose courts taking the cost
of different sentences into consideration and that perceptions
of the relative importance of the different aims of sentencing
varied according to the specific case. The research concluded
however that it was difficult to accommodate public opinion into
consideration of the principles of sentencing until misconceptions
that courts were lenient had been addressed.
78. The proposals for a new unitary Sentencing Council
contained in the Coroners and Justice Bill lay new duties on this
organisation with regard to information gathering and dissemination.
The new body must monitor the operation of its sentencing guidelines,
assess the resources required as it develops sentencing guidelines
and publish each year an assessment of the sentencing and non-sentencing
factors that will impact on prison spaces and probation workloads.
It must also publish information on sentencing at a local level
and may promote awareness of sentencing at a national level. The
impact assessment for these clauses in the Coroners and Justice
Bill includes additional analytical staff at the Sentencing Council
and some administrative staff in larger courts for data collection
if required.[127] The
impact assessment also states that Judicial and Court costs are
"not included as will be absorbed".[128]
The Sentencing Commission Working Group conducted a short survey
of ten Crown Court centres to consider the feasibility of collecting
some of the basic information that would be needed; it concluded
"we believe it would be necessary to consider the additional
burden on judges and any consequent effect on the operation of
the courts."[129]
79. Professor Hough felt that any new sentencing
organisation could play an important part in correcting public
misinformation about sentencing. He said:
"In most common-law industrialised countries
there seems to be a fairly systematic form of misinformation amongst
the public about sentencing practice. It is very clear that in
this country people are cross and angry about how the courts treat
offenders—but also systematically misinformed in that they
have no idea how tough we are on burglars and robbers or rapists.[…]
The Ministry of Justice or the Home Office are probably not the
bodies to tell the public that the picture is not as dire as they
fear, because they will not be believed. But an independent sentencing
commission or council could adopt that function."[130]
80. We are convinced by the evidence that public
attitudes towards sentences change depending on whether people
are asked abstract questions about leniency or given details of
a situation and asked about the appropriate sentence. When given
enough information to understand a sentence, people support sentencing
at a level similar to current sentencing practice. We conclude
that sentencing policy should not be determined on the presumption
that the public find current sentencing too lenient. Public confidence
would be better served by ensuring and then demonstrating that
sentencing is effective in preventing people from being victims
of crime in the future.
81. Even if more people are sent to prison for
longer, people will not necessarily be convinced that sentences
are in fact increasing in length. It is also not necessarily what
the public wants. Pursuing a sentencing policy based on a misconception
of what people want is not intelligent, appropriate or sustainable.
More worryingly, it may result in more people being victims of
crime in the future and less confidence in the criminal justice
system.
82. It has been a settled principle of the development
of sentencing guidelines for over a decade that their formulation
should have regard to the cost of different sentences and their
relative effectiveness in preventing re-offending and the need
to promote public confidence in the criminal justice system. In
our experience, these aspects are both crucial and difficult to
capture. We will therefore continue to pursue these aspects in
our work on sentencing guidelines.
83. Sentencing policy needs to consider not only
the cost of sentencing, but its cost effectiveness, measured in
terms of its ability to prevent people from being victims of more
crimes in the future. At the same time, sentencing policy and
sentencing in individual cases are influenced by the public's
entirely understandable wish to have an outcome from a conviction
which recognises the level of seriousness with which society regards
such a crime. This statement of seriousness and disapproval is
almost always seen as something which can only be achieved by
a prison sentence, or by a longer custodial sentence than for
other crimes with which it is compared. Newspaper reports of trials,
often including interviews with victims' families, frequently
attest that the sentence was not long enough, or should have been
custodial rather than community-based, without regard to whether
the custodial or longer sentence would be more effective—or
at all effective—in preventing further crimes after release.
This problem will continue to have a powerful effect on public
confidence in sentencing, and on the response of sentencers, unless
ways can be found of combining within a sentence a clear signal
as to the seriousness of the offence and a rational assessment
of how effective the sentence will be in preventing further crimes.
We intend to give this issue further consideration in our forthcoming
report on Justice Reinvestment.
84. The added value we can bring by reviewing
sentencing guidelines is hampered by the poor standard of information
available on the costs of different sentences and on measures
of effectiveness of different sentences. It is unacceptable that
basic information such as what factors led to a particular sentence
being imposed in a particular case is not collected and made available.
We recommend that the Government as a matter of urgency commit
to identifying information on sentencing that is crucial and put
in place a structured plan to collect and publish this data.
85. We welcome therefore the provisions for information
collection, analysis and dissemination in the proposals for a
new Sentencing Council for England and Wales. However, we are
worried that in practice, such issues may turn out to be peripheral
considerations for the Sentencing Council. The Government has
demonstrated, as detailed in our report Towards Effective Sentencing,
an inability to ensure that sentencing policies are resourced
so that they may be effectively implemented. We are concerned
that, as one example, the impact assessment for the Sentencing
Council ignores costs that may be incurred by the judiciary. We
recommend that the Government ensures that structures for data
collection on sentencing are adequately resourced both at a national
and local level.
65 HC Deb, 28 October 2008, col 726 Back
66
Criminal Justice Act 2003, Section 142 Back
67
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 1 Back
68
Faulkner, D., 'the reform of sentencing and the future of the
criminal courts', in Rethinking Sentencing, a report from
the Mission and Public Affairs Council, Church House Publishing,
2004, p.9 Back
69
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 1 Back
70
Rt Hon Jack Straw MP, Secretary of State for Justice and Lord
Chancellor, 'Punishment and Reform', Speech to Royal Society for
the Arts, 27 October 2008 Back
71
Ministry of Justice, Punishment and reform: our approach to
managing offenders, December 2008 Back
72
Q 2, Oral Evidence on Sentencing Commission, 14 October 2008 Back
73
Rt Hon Lord Justice Laws, 'the future of sentencing: a perspective
from the judiciary', in Rethinking Sentencing, a report
from the Mission and Public Affairs Council, Church House Publishing,
2004, p.67 Back
74
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2007-08) 1098-i, Q 18 Back
75
Faulkner, D., 'the reform of sentencing and the future of the
criminal courts', in Rethinking Sentencing, a report from
the Mission and Public Affairs Council, Church House Publishing,
2004, pp 7-8 Back
76
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC ( 2007-08) 649-i, Q 22 Back
77
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC ( 2007-08) 649-i, Q 15 Back
78
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC ( 2007-08) 649-i,Q 14 Back
79
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC ( 2007-08) 649-i, Q 13 Back
80
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC ( 2007-08) 649-i, Q 29 Back
81
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 29
Back
82
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June
2008, HC ( 2007-08) 649-i, Q 27 Back
83
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 44 Back
84
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 46 Back
85
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 43 Back
86
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Qq 41-42 Back
87
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 68 Back
88
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 68 Back
89
Oral Evidence on Consultation Sentencing Guideline: Theft and
Burglary (non-dwelling), 3 June 2008, HC (2007-08) 649-i, Qq 6,
11 Back
90
Oral Evidence taken before the Justice Committee on Sentencing
Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 10 Back
91
Loader, I., 'Straw's embrace of penal excess ignores the public
will', The Guardian, 28 October 2008 Back
92
Criminal Justice Act 2003, Section 170; this duty is replicated
in the Coroners and Justice Bill for the proposed Sentencing Council
for England and Wales. Back
93
HC Deb, 21 January 2008, col 1679W Back
94
HC Deb, 5 February 2009, col 1402W Back
95
Oral Evidence taken before the Justice Committee on Sentencing
Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 16 Back
96
Oral Evidence taken before the Justice Committee on Sentencing
Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 3 Back
97
Restrictions on Sentencing, A briefing from Napo the Trade
Union and Professional Association for Family Court and Probation
Staff, 11 March 2008 Back
98
Justice Committee, Fifth Report of Session 2007-08, Towards
Effective Sentencing, Oral and Written Evidence, 26 June 2007,
HC (2007-08) 184-II, Qq 97-98 Back
99
Rt Hon Lord Phillips of Worth Matravers, 'How important is punishment?',
speech to the Howard League for Penal Reform, 15 November 2007 Back
100
Oral Evidence taken before the Justice Committee on Sentencing
Guidelines, 22 January 2008, HC (2007-08) 279-i, Q 16 Back
101
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 7 Back
102
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 8 Back
103
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 8 Back
104
Sentencing Commission Working Group, Sentencing Guidelines
in England and Wales: An evolutionary approach, July 2008,
paragraph 1.3 Back
105
Sentencing Commission Working Group, Sentencing Guidelines
in England and Wales: An evolutionary approach, July 2008,
paragraph 9.14 Back
106
Home Affairs Committee, Towards Effective Sentencing, Oral
and Written Evidence, 17 April 2007, HC (2006-07) 467-i, Q 49
We are also looking in our Justice
Reinvestment inquiry at initiatives designed to promote discussion,
involvement and understanding among sentencers of the availability
and quality in their areas of community sentences and restorative
justice schemes. Back
107
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 10 Back
108
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 1 Back
109
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 32 Back
110
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 1 Back
111
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 1 Back
112
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 1 Back
113
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 1 Back
114
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 1, 4 Back
115
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 10 Back
116
Garside, R., What the public really thinks about community
sentences, London: Centre for Crime and Justice Studies, 2006 Back
117
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 16 Back
118
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 30 Back
119
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 10 Back
120
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 10 Back
121
Oral Evidence taken before the Justice Committee on Draft Sentencing
Guidelines: Assault, 23 October 2007, HC (2006-07) 1098-i, Q 34 Back
122
Justice Committee, Consultation Sentencing Guideline: Causing
Death by Driving, Oral and Written evidence, 4 March 2008, HC
(2007-08) 407-i, Ev 19 Back
123
The Magistrates' Association response to the Sentencing Commission
Working Group Consultation on a Structured Sentencing Framework
and Sentencing Commission, 30 May 2008 Back
124
Dhami, M.K. and Souza, K.A., Study of Sentencing and its outcomes:
pilot report, Ministry of Justice Research Series 2/09, February
2009 Back
125
Oral Evidence taken before the Justice Committee on Consultation
Sentencing Guideline: Causing Death by Driving, 4 March 2008,
HC (2007-08) 407-i, Q 54 Back
126
Sentencing Advisory Panel, Public Attitudes to the Principles
of Sentencing, Research Report 6, June 2009 Back
127
www.justice.gov.uk/publications/docs/coroners-justice-bill-ia-sentencing-council.pdf Back
128
www.justice.gov.uk/publications/docs/coroners-justice-bill-ia-sentencing-council.pdf Back
129
Sentencing Commission Working Group, Sentencing Guidelines
in England and Wales: An Evolutionary Approach, July 2008,
para 5.4 Back
130
Oral Evidence taken before the Justice Committee on the Sentencing
Commission, 14 October 2008, HC (2007-08) 1095-i, Q 18 Back
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