7 OTHER COMPONENTS OF A MORE
SUSTAINABLE JUSTICE SYSTEM
Engagement with the public
A NATIONAL DEBATE ON SPENDING ON
378. As we noted above, witnesses identified a need
for stronger political voices and better public understanding
about the criminal justice system and its costs. Professor Loader
stated that political inaction on the public's misunderstanding
of the nations' crime problem gives the impression that it is
the job of politicians to simply translate popular sentiment into
action rather than arguing about it or tempering it.
Mr Aitken felt that this had not been given sufficient consideration
by the Government: "The thoughtful view of what the public
will be interested in is one well worth exploring and on the whole
it has been to a certain extent a neglected argument by the prison
and Ministry of Justice professionals".
379. In England and Wales the prospect of a national
debate around resources and publicly desirable levels of imprisonment
seems limited, despite the Justice Secretary's acceptance of Lord
Carter's conclusions in the review of prisons that his proposals
"will allow for a rational debate on sentencing that recognises
that, as with any other public service, resources are finite".
380. Lord Carter specifically advocated:
A focused and informed public debate about penal
policy. It will be important to consider whether to continue to
have one of the largest prison populations per capita in the world
and to devote increasing sums of public expenditure to building
and running prisons and responding to fluctuating pressures as
they emerge. Not only is it costly, inefficient and a demand on
scarce land, but the sporadic way in which the pressures emerge
and are responded to inhibits the delivery of effective offender
management and rehabilitation.
381. We heard that the public lack knowledge of the
implications, or potential implications, of spending on different
approaches to criminal justice. The New Economics Foundation specifically
called for a debate on the public's willingness to pay for criminal
The complexity of such a debate was illustrated in the range of
perspectives taken by respondents to our e-consultation. Professor
Cynthia McDougall, of the University of York, contended that there
is a need for public surveys which examine this.
A poll conducted by Policy Exchange found that the public have
an appetite for a reallocation of crime reduction resources: 80%
are in favour of matching increases in spending on policing and
prisons with spending on programmes likely to prevent crime.
Mr Scott made specific reference to the public's desire for information
on the benefits and outcomes of policies to make decisions about
their value. He argued that if the people understand that every
pound spent on criminal justice is a pound not spent elsewhere,
it may inform public thinking.
Professor Cynthia McDougall agreed that research messages from
an economic approach should be made more available to the public
However, Professor Loader was sceptical that the public would
engage with the debate on what works.
382. It appears that the Government is side-stepping
the much needed debate.
Rt Hon David Hanson MP and Alan Campbell MP agreed that the public
is amenable to discussion and debate on criminal justice reform
but only if they believe the Government is addressing their other
priorities; there are mechanisms to enable them to have their
say and; they can have a role to play in the direction of resources
and the direction of policy in that area.
383. Professor Loader recommended engaging people
in discussion about crime in the place in which they live rather
than at national level.
Mr Aitken and Lord Dubs shared the view that arguments about more
positive solutions to crime that are workable and more rational,
in the sense that they would make local communities safer, offer
the best chance of gaining acceptance with the public at local
level. The local community tends to know most about the circumstances
of local offenders.
384. Other mechanisms to engage the public in the
criminal justice system may also help to reduce misconceptions.
One respondent to the e-consultation explained:
I was very unaware of what happened in prisons
until I became a volunteer. I visit the local women's prison about
3 times a year as part of a prayer/activity group. There is much
need to inform the general public about prison. Why and how people
find themselves there. (odi24)
Professor Loader and Mr Scott spoke of the value
of public participation in promoting understanding of the criminal
Mr Thomas gave the example of referral order panels, which decide
on an appropriate disposal for first time young offenders, as
beneficial in getting the community involved in aspects of the
system. Mr Faulkner
reminded us of the work of Rethinking Crime and Punishment in
the Thames Valley in demonstrating the value of engaging individuals
Professor Pfeiffer highlighted the role of churches and clergy
in engaging local communities in Germany.
The value of such engagement was highlighted by respondents to
the e-consultation, for example:
I did not know very much until this Sunday when
the churches in the city centre of Oxford invited the Criminal
Justice Alliance to preach and speak on these issues. We were
given key statistics which was very far from what the media reported.
When the public are engaged in debates on the best
way to reduce crime and use resources sensibly they are likely
to be more realistic about the most desirable direction of policy.
Public information campaigns should seek to promote understanding
of the cost of the criminal justice system to the public purse
and where the costs of the failure of current initiatives fall.
The Government should use this to gauge public reaction to the
costs of the system. The forthcoming election represents an opportunity
for constructive local debates on the direction of policy, if
party spokespeople and candidates are prepared to move the debate
on to consider what is cost effective in reducing future crime
and what the nation can afford.
CHALLENGING THE MEDIA REPORTING
OF CRIMINAL JUSTICE POLICY
385. Witnesses discussed the potential for the Government,
academics and practitioners to engage with the media in a debate
with the public on the rational allocation of resources.
The Restorative Justice Consortium was reasonably optimistic:
The media must be engaged in the move to shift
the culture of penal policy and the terms of debate that are available.
This can be done in part by the media raising the profile of alternatives
to the criminal justice policy, but also through presentation
of the sound reasoning behind justice reinvestment and the methods
of allocating resources to reduce offending and pressure on the
criminal justice system.
386. Napo, however, was generally pessimistic in
its view of the use of the media to promote a reductionist approach
but added that in its experience the local media welcome stories
that highlight the success of programmes.
Mr Scott was more optimistic about criminal justice services building
a more positive relationship with the media, citing efforts by
the Association of the Chief Officers of Probation to engage with
the Society of Editors.
Mr Dean highlighted the success of the efforts of SmartJustice
to persuade the Mirror to print positive stories on offenders
387. Alan Campbell MP, Home Office Minister, commented
on the potential to undermine the impact of the media and the
need to have public debate based on the reality of what is happening
in their local communities not simply the perception of what is
Hon David Hanson MP, Ministry of Justice Minister, agreed there
was a need to counter the influence of the media: "
front page of one local paper with one incident, with one particular
crime, can raise the fear of crime quite considerably, so it is
about not just what we do, but it is the perception and it is
about how we build confidence".
Professor Pfeiffer argued that it is possible for academics to
challenge the media with robust evidence, for example undertaking
meetings with editors, media interviews, and chat show appearances
to influence thinking in the mass media.
BUILDING PUBLIC CONFIDENCE IN THE
388. While our inquiry has been in progress, the
Government has sought ways to promote greater public involvement
in the criminal justice system. For example, it has embarked on
a programme entitled 'Justice Seen, Justice Done' to address public
concerns about crime and justice, in response to issues outlined
in Louise Casey's report for the Cabinet Office, Engaging Communities
in Fighting Crime, discussed in chapter 5. The Policing and
Crime Act places a duty on the police to enhance public understanding
of their work. Provisions on public understanding of the rest
of the criminal justice system, particularly the courts, were
notably absent from this legislation. We heard that the public
have greater confidence in the police and local authorities than
criminal justice agencies.
389. Promoting the visibility of criminal justice
agencies is of course important but our witnesses distinguished
between simplistic measures to improve public confidence and those
which genuinely improve public engagement, with the effect of
improving confidence. Rushanara Ali, of the Young Foundation,
told us: "You have to have measures that build public confidence
in order to come up with alternative approaches that do improve
rehabilitation. Looking at public confidence in isolation only
gives half the answers".
390. The Government has recently set out additional
proposals in a green paper Engaging Communities in Criminal
These are summarised in the box below. This states that all
the criminal justice services, not just the neighbourhood police
should help the public understand how they are performing.
391. While outside the remit of this inquiry, decreasing
the amount of unsolved crime could also contribute to building
public confidence in the system. In 2008, 3.4 million crimes went
unsolved. Ensuring that those who should be in the criminal justice
system are not allowed to avoid it would increase public confidence
that committing a crime is a serious matter and carries the appropriate
consequences. This is an issue for the police and the wider criminal
PUBLIC OWNERSHIP OF LOCAL PROBLEMS
392. Neighbourhood by Neighbourhood, a report
by the Coalition on Social and Criminal Justice,
drew similar conclusions to Louise Casey about problems with local
community engagement but took a fundamentally different approach
in its recommendations. It argues that, in encouraging local ownership,
local commissioning can go beyond simply delivering outcomes;
it can improve local people's experience, increasing trust and
confidence for witnesses and victims. The report refers specifically
to the potential benefits of this in broadening public understanding
about the most effective ways of dealing with offenders:
Involving local democratically elected leaders,
community leaders and the local press offers the best chance of
involving the general public in an informed and constructive debate
on the relative merits, costs, and risks of different forms of
working with offenders. Currently, such debate is seriously lacking
in the UK with criminal justice too often being seen by the public
as 'their' and not 'our' issue.
The report concludes:
Crime is committed by local people, against local
people, within local communities; Justice reinvestment addresses
these local concerns by devolving resources to local authorities
to invest in their communities.
393. We heard that the participation of local communities
is an important component of localised models to reduce crime.
For example, Ms Ali spoke to us about the importance of tapping
into the potential of local people to think about solutions to
Chris Leslie of the New Local Government Network agreed.
Other witnesses noted the value of empowering communities by shifting
the emphasis of efforts to reduce crime from the criminal justice
system to local communities.
For instance, Mr Martin argued for a change in mentality over
responsibility for crime to one where communities are able to
devise their own solutions to local crime problems and to be rewarded
for that. He suggested that communities should be encouraged to
actively engage with reducing crime, citing the example of the
success of circles of support and accountability to manage sex
394. Mr Tidball highlighted an additional benefit
of a community-based approach to determining local priorities
for crime reduction. He remarked that bringing decisions about
justice and sentencing into the hands of communities and their
representatives has a chance of bringing downward pressure on
the "imprisonment epidemic".
This is supported by the view that local people are more likely
to accept that imprisonment is not necessarily the answer to local
problems. Professor Loader described the findings of research
he had conducted on crime and disorder:
When the conversation turned to questions about
young people today or youth crime in general people sounded a
lot harsher and much more easily reached some kind of criminal-justice-related
solution. When you got them talking about the kids who hung around
outside the local store, some of whom they knew or they knew their
parents, they tended to be less focused upon criminal justice
solutions to that problem. The lesson I draw from this is that
the more local you can make crime sound, the more you can think
about it as a local rather than a national problem, the less obvious
it is to people that the criminal justice system, still less prison,
is the way to go in trying to address the problems.
Local accountability may therefore reduce the calls
on national government to accept responsibility when things go
395. The Casey review suggests that the focus for
engaging communities should be on particular geographical areas
but little was included in the report's recommendations on addressing
inequalities. Engaging Communities in Criminal Justice,
however, does refer to the need to choose sites for the co-location
or virtual co-location of community justice teams based on relative
levels of deprivation.
396. We heard that the engagement of communities
in particularly deprived areas may require careful and sustained
work. For example, Rod Jarman, of the Metropolitan Police, told
us that it was important to involve the public in a systematic
and long-term way to promote confidence, particularly given the
complexity of crime: "What is really important is that when
you engage them in debate over a period of time they move on [to
understanding] the fact that there are several complex issues
and the complex issues need to be dealt with in different ways."
The Young Foundation believed that intensive work might be required
to engage with some communities. It has run several programmes
of work to encourage neighbourhood empowerment, including the
Neighbourhood Taskforce, a model which seeks to tackle entrenched
problems in areas where community capacity is low and where public
services have difficulty engaging residents and neighbourhood
397. We welcome the proposals in the Engaging
Communities in Criminal Justice white paper. We are encouraged
that the Government is seeking to target efforts to engage the
public in areas which are particularly affected by crime. Criminal
justice agencies must recognise a sustained effort may be required
to engage with some communities. The justice reinvestment framework
also fits well with the community justice approach. It has the
potential to help produce solutions to community problems, as
well as to help reform offenders and reduce re-offending. It could
also enable offenders to make amends to their victims and communities
for their crimes.
COMMUNITY ENGAGEMENT IN COMMISSIONING
398. We heard about a number of promising initiatives
to facilitate community engagement in determining the types of
services commissioned at local level. David Ottiwell, of GMAC,
described the development of community engagement mechanisms,
known as Key Individual Networks, which have been advocated by
the Association of Chief Police Officers to identify community
priorities, and are being used increasingly by Crime and disorder
399. Richard Kramer, Director of the Connected Care
Centre of Excellence, told us about "connected care",
a more systematic approach towards the development of community-led
commissioning processes. This is specifically designed to work
in the most deprived communities and engage them more systematically
in audits of the health, social care and housing needs to devise
local models for integrated service delivery.
The concept originated from research carried out by Turning Point,
in conjunction with IPPR in 2004. This work found that people
with the most complex needs are failed by health and social care
services and concluded that services needed to address the "whole
person". It also proposed that services should work together
to meet the relevant needs of the whole community.
Turning Point established a Centre of Excellence which promotes
connected care as a framework to help commissioners enable local
people to design and deliver their own services and engage those
who cannot or will not use existing services. Connected Care
is not explicitly designed to meet the needs of offenders, but
many benefit as a large proportion of offenders have mental health,
and/or substance misuse needs.
400. Richard Kramer, Connected Care Director, described
how community involvement in the shape of local services can act
as an "excuse-remover" for commissioners. He explained:
"the sense of accountability has changed, shifting from the
commissioners to the communities. So the community is saying:
"Actually, we do want this to happen", and so it binds
the commissioners in that way."
401. Public engagement should promote involvement
in the system rather than simply seek views on it. We would like
to see more sophisticated methods of public engagement implemented
so that people can become more closely involved in the system
in more informed ways, for example, through volunteering or by
being encouraged to develop local solutions to local problems.
In this context we welcome the Ministry of Justice's volunteering
strategy, although it will only work if it is properly resourced.
Community involvement can bind commissioners and it should
therefore become a key part of a blueprint for shifting spending.
Using community engagement to help audit local needs would be
of great benefit in determining the shape of local provision to
reduce crime, particularly in deprived communities. The Government
should consider adopting the Connected Care model as part of its
strategies to engage communities in criminal justice and manage
the costs of the criminal justice system.
402. The Government White Paper Communities in
Control introduced the idea of 'participatory budgets' which
would delegate control of some money over to the community. The
Participatory Budgeting Unit describes these as follows:
Participatory budgeting directly involves local
people in making decisions on the spending and priorities for
a defined public budget. Participatory budgeting processes can
be defined by geographical area (whether that's neighbourhood
or larger) or by theme.
In this way local people can participate in the allocation
of part of the local council's, or other statutory agency's, resources.
The white paper promotes these budgets as a way in which local
authorities can fulfil their duty to involve their communities.
All local authorities should be using participatory budgets by
403. Frances Crook, from the Howard League for Penal
Reform, argued that the whole community must benefit from justice
reinvestment and that therefore communities should be given a
direct stake in the redistribution of resources 
404. The Home Office has undertaken to develop participatory
budgeting pilots as part of community safety budgets and has begun
to reallocate monies from the proceeds of crime through the community
cashback scheme. Alan Campbell MP, Home Office Minister, discussed
the value of these pilots when giving evidence about the potential
for justice reinvestment.
Justice reinvestment is not just about moving money between
agencies or partnerships but also about placing it under the direction
of local communities and involving them in the process of spending
it. Participatory budgets offer another means for local people
to engage in determining local priorities, within a justice reinvestment
model. We welcome progress made by the Home Office in this area
in allowing reinvestment of the proceeds of crime in the community.
We consider that participatory budgets could also help to increase
the visibility of other positive aspects of the justice system,
including the revenue generated by fines.
PUBLIC UNDERSTANDING OF THE COSTS
405. The Sustainable Communities Act 2007 could
provide a vehicle for promoting public understanding of the costs
of crime to encourage public support for justice reinvestment.
The Act is intended to ensure that communities are better informed
about the public funding that is spent in their area. New "local
spending reports" should provide quick and accessible information
about where public money is spent. However, as the system is currently
configured, money spent on criminal justice on behalf of a local
community would not be reflected accurately due to the substantial
proportion of costs borne at national level. The Sustainable Communities
Act 2007 makes information about public funding of local services
more accessible to communities. However, it may have only limited
success in encouraging local people to understand the financial
burden of the criminal justice services, and imprisonment in particular,
on national taxpayers.
406. The Government should develop a mechanism
to allow the public to understand the costs of local offending
to the criminal justice system and the wider costs to society,
including costs to other services (e.g. health, housing, social
services and benefits) of failing to reduce re-offending.
Sentencing and Resources
407. One of the problems in reducing the use of custody
within a system of rational use of resources, as suggested by
justice reinvestment approaches, is that sentencers dictate the
level of use of custody, albeit within parameters set by Parliament
and the Sentencing Guidelines Council (SGC). The questions of
whether sentencers should have regard to resources, and if so,
how this could be achieved, has vexed the Government for several
THE SENTENCING GUIDELINES COUNCIL
AND SENTENCING ADVISORY PANEL
408. The SGC and Sentencing Advisory Panel (the Panel),
which have been in operation since 2004, aim to promote consistency
in sentencing. Patrick Carter's first report was critical that
sentencing practice was unable to take account of the capacity
of prison and probation services to deliver the sentences of the
courts and made a number of recommendations to overcome this:
- Within one year of the establishment
of NOMS the Panel should have the capacity to forecast demand
and develop an evidence base on the efficacy of different sentences
- Within two years the Panel should have produced
sufficient evidence to inform the next spending review, i.e. 2007
- Within five years the SGC should be producing
annual guidelines, informed by Government priorities, to manage
the demand for prison and probation and ensure cost-effective
use of capacity.
He suggested that the functions of the Panel and
SGC must be accompanied by responsibilities for the judiciary
to ensure the consistent and cost-effective use of prison and
He reiterated the need for a sentencing framework which enables
demand to be forecast and reflects the availability of resources
in his second report and recommended that the Government consider
establishing a sentencing commission to devise this.
409. The working group, set up by the Government
to consider Lord Carter's 2007 proposals, raised concerns regarding
the capacity of a sentencing commission to achieve what he envisaged
in his second report and these questions remain unanswered in
the light of the resulting legislative provision:
- There is an inherent tension
in a structured sentencing framework between the predictability
of prison and probation populations and judicial discretion;
- There has been no real public debate about whether
the sentencing framework should link to resourcing decisions.
There is a further question, raised in our report
Sentencing Guidelines and Parliament: building a bridge,
about whether sentencers should build assessments about which
sentence they consider to be most cost-effective, into their
decision-making on what is the most appropriate sentence in each
In this inquiry we have given further consideration to how the
proposed Sentencing Council might contribute to a system which
seeks to use resources more effectively.
THE SENTENCING COUNCIL
410. The relationship between sentencing, effectiveness
and resources was the source of much debate in the passage of
the Coroners and Justice Act. The Government's intentions for
the enhanced role of the Sentencing Council are:
To place a duty on the Council to assess the
impact and application of its guidelines and in doing so to collect
new sentencing data. To enhance the role of the Council in assessing
the impact of policies and legislation on correctional resources
with the intended effect of allowing Government to plan better
for demand on correctional services.
411. At the outset of this inquiry, our witnesses
were broadly supportive of the Government's proposals to introduce
a Sentencing Council, although this was subject to several provisos.
For example, the Prison Reform Trust hoped that it would lead
to proportionate sentences and the Local Government Association
and Clinks anticipated more control over budgets, better planning
and costs savings.
Nacro stated that a sentencing commission "must address the
need for sentencers to have regard for the available resources
and the relative costs of their sentencing decisions."
Others remarked that it was unclear how the Sentencing Council
would differ from the existing Sentencing Guidelines Council.
412. There was agreement on the principle that the
sentencing of individual offenders should not be driven by the
availability, or otherwise, of resources, although there was consensus
that it was nevertheless necessary to find a way that recognition
of scarce resources is built into the sentencing process. (We
discuss this in more detail in our report Sentencing Guidelines
and Parliament: building a bridge).
413. We did, however, encounter some scepticism over
the likely efficacy of the proposed reforms. For example, according
to Judge Marcus, sentencing guidelines in the US have, at best,
only reduced the speed at which the prison population is still
growing. Conversely, he thought that such guidelines made longer
sentences easier to introduce without recourse to legislation.
He considered sentencing guidelines a waste of resources as they
do not attempt to direct sentencing at reducing re-offending.
The rate of growth in the use of imprisonment was slowed in Oregon
following the introduction of such guidelines; in Washington State
there was disagreement whether the reduction in prison expansion
was a result of sentencing reform.
414. The Justice Secretary explained the potential
benefits of the new sentencing framework: "if we can square
the circle between greater predictability of sentencing in general
whilst maintaining proper individual judicial discretion in particular
cases, then I think it will produce benefits". He suggested
there were shortcomings in the structured sentencing framework
approach in the US where the prison population may rise for other
reasons, even where there is a mandatory grid. He argued that
it could only make a marginal difference to sentence length; and
the system would not work in such a way to cut maximum sentences
because there may be insufficient prison places. But he did agree
that a more transparent system, which takes account of the reality
that resources are restrained, may make sense.
The Ministry of Justice has since argued that "closer adherence
to sentencing ranges could arrest historical trends in upward
sentencing drift" and calculated that the reforms could potentially
only reduce the number of new places necessary by 1,000 providing
a capital cost of £150million and running costs of around
415. The Criminal Justice Commission in Oregon has
a wider remit and has built a cost and effectiveness model across
agencies to compare the viability of investment opportunities
outside the criminal justice system, believing that this offers
greatest promise in reducing the growth of spending on imprisonment.
Within the criminal justice system a Bill was introduced to ensure
that offenders are subject to evidence-based programmes during
their sentence. This has also improved the research base for effective
Challenges for the Sentencing
PROMOTING 'WHAT WORKS' IN SENTENCING
416. The original proposals in the Halliday review
for a revised sentencing framework were borne out of a belief
that the existing framework suffered "
deficiencies that reduce its contributions to crime reduction
and public confidence."
Judge Marcus suggested that the objective of sentencing commissions
should be to monitor how well sentencers achieve objectives of
public safety and public values.
This implies that what matters most is the extent to which sentencers
are effective at reducing crime.
417. Any meaningful solution to the rational use
of resources for criminal justice requires a profound change in
the very culture of sentencing.
The LGA and Clinks argued that sentencers need to be more aware
of the costs of sentencing decisions before sentencing budgets
can be devolved to local areas.
Several witnesses spoke of the importance of communicating best
practice to sentencers so that sentencing decisions are informed
by evidence of 'what works'. For example, David Scott, then Chair
of the Probation Chiefs' Association, argued that evidence-based
approaches can be used to persuade sentencers to adopt different
heard that, in addition to building cost-effectiveness into sentencing
guidelines, there are other ways to achieve this. Roger Hill,
then Director of Probation, highlighted the role of probation
in providing advice to sentencers on the evidence-base for reducing
Dr Chloë Chitty, Ministry of Justice researcher, said that
magistrates, judges and the Judicial Studies Board are given general
information on what is known about effective practice by the Ministry
of Justice. We
welcome the fact that the sentencing guidelines are now recognising
the effectiveness of different approaches more explicitly, for
example, the youth sentencing guideline emphasised limitations
in the effectiveness of custody for young offenders. This approach
needs to be followed consistently.
418. Mr Scott described the research base to provide
advice to sentencers and inform decision making on community sentences
as a gap in the system.
Judge Marcus believed that the best available research and data
must be used to make decisions at individual sentencing level.
He acknowledged deficits in the existing evidence, but argued
that using the evidence that does exist is much more likely to
achieve public safety than current sentencing behaviours. Professor
Cynthia McDougall agreed that sentencing should take account of
the cost-benefits of each potential intervention.
419. Judge Marcus questioned the edict that sentencing
is an art not a science, arguing that "empirically incorrect
imprisonment" is damaging and makes people worse.
Mr Scott asserted that without evidence-based decision-making
there is a risk that sentencing decisions "relate to the
flavour of the month or the latest crisis".
In his view a more rigorous, independent and trusted research
base is required to enable frontline probation practitioners to
provide advice and information to the courts. He acknowledged
that the evidence base on sentencing was developing slowly but
argued that it needed to be more sophisticated.
420. While we welcome progress made in promoting
the confidence of magistrates and judges in the use of community
sentences, there continues to be a lack of confidence in the courts
about the availability of some community sentences. Given
the problems with probation resources it is important that the
probation service is clear with sentencers about what it realistically
can and cannot deliver. We support efforts to provide sentencers
with information on courts' use of probation resources, although
this is unlikely to be effective in encouraging sentencers to
be more judicious in their use of resources on its own as it will
not include the costs of custodial sentencing. The cost-effectiveness
of all sentences given locally should also form part of the information
shared at meetings between the judiciary and the probation service.
SHORTCOMINGS IN THE DATA ON SENTENCING
421. As we noted in our report Sentencing Guidelines
and Parliament: building a bridge, there are shortcomings
in the data available on sentencing which would be necessary to
enable the new Council to monitor effectively the framework and
its impact on penal resources.
It is not currently possible to say whether sentencers are using
the sentencing guidelines or what impact sentencing guidelines
are having on sentencing because existing data collection is not
sensitive enough. For example, statistics are available on sentencing
by offence group but not the variety of circumstances that fall
within the groups, or how individual sentences are affected by
previous convictions or aggravating and mitigating factors. A
sustainable sentencing framework would need to be accompanied
by more data collection and analysis than is currently possible
in England and Wales.
422. In his 2008-09 annual report, Lord Judge, Lord
Chief Justice, explained that he has strengthened his views on
the desirability of publishing the potential costs of legislative
decisions about criminal justice and sentencing policy before
they are made and called for the new Council to be better resourced
to support this function.
The speed at which data on sentencing decisions improves is important
in considering the likely efficacy of Sentencing Council research
in facilitating better management of resources. Victoria Sentencing
Council in Australia, which performs a similar function, took
several years to ensure that courts were generating data of sufficient
McGuire also questioned the capacity of agencies in the criminal
justice system to collate data to feed into better quality research.
Limited financial provision has been made to increase the capacity
of the courts to collate data as a result of the Council's introduction.
Dr Chloë Chitty, Ministry of Justice researcher, acknowledged
that there continues to be limited data on sentencing decisions
but stated that it is improving.
We agree that the Sentencing Council must be well-resourced
to enable it to perform its research function. We have concerns
that it has taken similar bodies in other jurisdictions considerable
time to ensure that data is of sufficient quality to form the
basis of decisions about the most appropriate allocation of resources
within sentencing guidelines. We do not believe that the Government's
assessment of the cost implications of improved data collection
adequately reflects the additional administrative burden on courts.
It also underestimates the potential of improvements in court
technology to provide a more rational approach to sentencing.
PROMOTING COST-EFFECTIVE SENTENCING
423. Among the matters dictated in the Criminal Justice
Act 2003 to which the Sentencing Guidelines Council must have
regard when framing guidelines, is the cost of different sentences
and their relative effectiveness in preventing offending. As we
noted in our report Sentencing Guidelines and Parliament: building
a bridge it is not clear how these considerations are currently
built into the guidelines.
The Government's intention is that this will be an explicit role
for the new Sentencing Council for England and Wales.
424. This element of the Council's role has received
mixed support from sentencers. The Council of Her Majesty's Circuit
Judges was clear in its response to the Government consultation
Making Sentencing Clearer that it does not regard it appropriate
for the Council to be required to bear in mind the targeting of
resources when considering the ranges of sentencing criminal offences.
425. The Probation Boards' Association believed that
sentencing should be more rounded and take into account relative
cost and long-term effects on sentencing patterns but explained
that progress on this must wait for further work from the Ministry
of Justice on the effectiveness of community sentences. The Association
advocated research which models the impact on re-offending of
shifts in sentencing policy from custodial to community sentences
and of different levels of investment in the probation service.
426. The Ministry of Justice's consultation document,
Making Sentencing Clearer, set out plans to publish information
(including the unit costs of remand and sentencing disposals and
costs of sentencing and remand decisions at national, regional,
area or court level) to enable greater transparency in sentencing
practice and the relative costs of sentencing decisions. These
plans received widespread support, including from the Magistrates'
Council of HM Circuit Judges was also broadly supportive of this
element, believing that national costs data may be valuable, but
it cautioned that this information could be open to misinterpretation.
Furthermore, the Judge's Council did not believe that comparative
contextual information for each area, (including demographics,
crime patterns and reconviction rates); would be of any practical
benefit; particularly given the costs of producing such data.
Dr Chloë Chitty, Ministry of Justice researcher, explained
that local area reducing re-offending measures will enable sentencers
to have local information on reducing re-offending outcomes.
427. Our evidence suggests that sentencing guidelines
should take account of costs more explicitly, as NICE guidelines
on NHS treatments and therapies do.
Ms Lawlor believed that data on cost-effectiveness should be given
to sentencers as part of sentencing guidelines; information should
not be limited to public expenditure costs of sentences but must
include the costs and benefits that individuals, families and
communities are likely to bear as a result of sentencing decisions.
Professor Cynthia McDougall advocated development of a cost-benefit
scale for sentencing.
428. Some witnesses, including Mr Coughlan, believed
the criteria for sentencing should be changed as a means of managing
the behaviour of sentencing practitioners.
Some countries, including Germany, limit the use of short prison
sentences by making no statutory provision for sentences of imprisonment
of less than 6 months.
The Scottish Government plans to amend its legislation to do the
same, supported by the chief executive of the Scottish Prisons
Service and chief constable David Strang, of Lothian and Borders
police. Mr Tidball,
chair of the Prison Governors Association for England and Wales,
expressed reservations about abolishing such sentences.
Respondents to our
e-consultation shared his view, arguing the net effect could be
more people given longer in prison instead of replacing custody
with community sentences. We note that, since Mr Tidball gave
evidence, the Prison Governors' Association has passed a motion
that sentences of less than 12 months should be abolished.
Alternatively, Napo and the LGA and Clinks proposed that the potential
should be explored for offenders who would receive prison sentences
of less than 12 months to be dealt with on community programmes.
Evidence-based sentencing decisions
429. We heard in Portland, Oregon, US that Multnomah
County Court judges attempt to address the evidence void in sentencing
decisions through the use of sentencing support tools which are
founded on a database of local re-offending data to generate possible
sentencing decisions based on the characteristics of the offender
and what is most likely to be effective. The tools provide sentencers
with information on the success of various types of intervention
which have previously been given to offenders with similar profiles.
This has been coupled with a state directive that pre-sentence
reports must offer direction in terms of what intervention is
most likely to work for the individual offender.
A similar directive now applies in England and Wales but sentencers
do not have the underlying data to support assessments of the
most appropriate intervention.
430. We were particularly impressed by the fact that
some judges in the US consider that the requirements of justice
lead them to a proactive engagement in leading and managing change.
In some cases this has led to a genuine search for a new definition
of justice. For example, Judge Marcus explained that in his view
a 'just sentence' was not an end in itself and considered that
this precludes sentencers taking responsibility for other outcomes,
including the reduction of offending, or the social purposes we
describe above. We saw considerable evidence of teamwork involving
judges, local authorities, third sector organisations and businesses
in ensuring that appropriate interventions are available to the
court. What we observed showed the benefits of judges having positive
feedback and closer involvement in community decision-making and
the cost base of the local system.
431. Lord Carter's report, and the Government's response
to it, bring the question of capacity and sentencing squarely
into view. In the Sentencing Council, we are left with a new institution
which is no more likely than its predecessor to provide a mechanism
to constrain the expansion of the system and to enable it to run
effectively within finite resources. The Government appears to
have shied away from the difficult question of the sentencing
framework's costs in terms of prison and probation resources.
The wider question of whether the cost of a sentencing framework
is too highin terms of its use of prison and probation
resourcesshould be answered otherwise the existing system
is left in a precarious position and at risk of its future sustainability
being undermined. Court decision-making is already constrained
by a lack of resources for community-based options and is, in
some cases, driven by availability rather than cost-effectiveness
for society and this is only likely to get worse as the system
continues to expand while resources contract.
432. The remit of the new Sentencing Council for
England and Wales is to analyse existing data rather than to conduct
original research. We are not convinced that constraint in the
use of resources can be achieved through the use of sentencing
guidelines, particularly given the controversy underlying the
evolution of the new body, the absence of a statement of its purpose
written in the statute and the resulting lack of clarity. We
believe that the role of the Sentencing Council should be to ensure
that sentencing practice succeeds in reducing offending and re-offending.
A major shortcoming is that the research function of the Council
will concentrate only on sentencing rather than the global management
of resources to reduce crime.
433. We agree with the judiciary and other witnesses
that the availability of resources should not influence individual
sentencing decisions but a mechanism must be found to ensure that
one element of the accountability of the judiciary and magistracy
to the public is the appropriate use of scarce resources. We are
emphatically not advocating a system of elected judges but there
are advantages of the US system in terms of judges' accountability
to the public to be cost-effective in their sentencing. Both the
Government and the Sentencing Council should consider how sentencers
can be given a better understanding of what works in terms of
reducing offending and re-offending and is therefore best in terms
of justice and public protection. Sentencers also need data on
the cost-effectiveness, and thus the consequences for the taxpayer,
of their decisions. This could be achieved, for example, by strengthening
the role of local criminal justice boards, which bring together
criminal justice agencies, including the Crown Prosecution Service
and HM Courts Service, to consider the implications of decision-making
at local level.
434. There is a clear need for more systematic inclusion
of effective practice in sentencing guidelines. A national database
could be created, like in Multnomah County in Oregon, to provide
stronger information on the costs and benefits of various sentencing
options and inform the development of the sentencing framework.
The Sentencing Council must be given the resources to recruit
expertise to develop a database housing all data on sentencing
decisions and the characteristics of offenders sentenced to provide
a basis for the development of evidence-based guidelines. In addition
courts and probation areas must be given the capacity to record,
collate and provide this data to the Sentencing Council.
Locally responsive sentencing
435. Witnesses were concerned that the delivery of
justice takes place away from the community context. Mr Scott
contended that in seeking reform you cannot get to the public
without first getting sentencers on your side.
Others, including Mr Leslie and the Howard League, lamented the
loss of the 'local' justice element of magistracy and links with
public and local probation.
Mr Aitken described his increasing unease at the way the
judiciary are detached from any kind of community or continuity
in their sentencing.
The Magistrates' Association agreed that there must be greater
visibility of justice in local communities.
436. In Newcastle we heard about the potential for
the engagement of sentencers with local issues and priorities,
in particular in securing appropriate local provision for offenders
by local community agencies.
Witnesses supported the expansion of community justice, based
on the Community Justice Centre pilot schemes in Liverpool and
Salford. These bring together teams from the courts, police, Crown
Prosecution Service and probation services to jointly tackle offending.
Witnesses, including the Howard League, proposed that community
justice can provide local solutions for local problems.
The Young Foundation believed that community justice initiatives
like community courts can bolster public confidence in innovative
437. Mr Faulker argued that justice reinvestment
principles are consistent with the notion of community justice.
Mr Hill believed that community courts offer the potential for
reinvestment through greater use of community penalties
as sentencers become more confident in them. Mr Ottiwell highlighted
the role of community courts in enabling sentencers to engage
in local partnerships and information-sharing.
For example, Salford community court has built relationships with
Crime and disorder reduction partnerships and local communities.
We heard about the value of engagement with local communities,
including local businesses, during our visit to the community
court in Seattle. It has demonstrated the costs and benefits of
the community court model in diverting offenders from custody
and the ability to establish, and run, such a court with minimal
funding; the court led to larger savings in the use on custody
than was anticipated. It has also benefited greatly from financial
support from, and involvement of, local businesses who understood
that it was not possible for the community to arrest their way
out of the problem. Conversely, Mr Leslie, argued that agencies
which co-operate in community justice courts could be financially
rewarded for doing so.
438. There is emerging evidence of the cost-benefits
of such approaches in England and Wales. An independent evaluation
of the two initial drugs court pilots showed that they can have
statistically significant beneficial outcomes in terms of a higher
likelihood of sentence completion and a lower likelihood of reconviction.
The Government committed funding for four additional courts as
a result of these findings. A subsequent evaluation report has
shown that to achieve a net economic benefit in terms of criminal
justice costs, a 12 month drug rehabilitation requirement would
need to deliver a reduction in drug misuse of 14% over a five
year post-sentence period. If the wider costs to society are taken
into account the required reduction in drug use is only 8%.
Early evaluation of the first year of operation of the community
courts in Liverpool and Salford was less conclusive, finding no
difference in re-offending rates compared to offenders sentenced
in regular courts.
439. We noted in chapter 5 that the public have mixed
views about the value of rehabilitation in sentencing. This may
be partly related to their limited knowledge about the decisions
that are taken in court as there is little systematic feedback
of the outcomes of court cases to the public; although the Government
plans to publish court records online. Mr Scott believed that
if the evidence-base for sentencing decision-making was more transparent,
the public would get a greater understanding of sentencing; he
said that if the public understand more, they are far more disposed
to support the decisions of the court than seems the case from
popular press reporting.
440. As President of the Queen's Bench Division,
the current Lord Chief Justice Sir Igor Judge stated "sometimes
where it can be achieved, rehabilitation itself provides the significant
form of long-term public protection".
Her Majesty's Court Service has explained its role in supporting
work to reduce re-offending through community courts, and community
Business Plan sets out proposals to strengthen this role:
- Extending the principles of
community justice, including the problem solving approach to sentencing,
across magistrates' courts in England and Wales. The aim is to
identify and address the underlying causes of offending behaviour
to help to reduce re-offending.
- Widen the use of the judicial power to review
offenders' progress on community orders under section 178 of the
Criminal Justice Act 2003.
- Plans to extend the use of specialist drug courts,
mental health courts and domestic violence courts. 
- Promoting the visibility of the courts and ensuring
that courts learn more about community concerns.
441. Notwithstanding emerging evidence on the cost-effectiveness
of community courts in reducing crime and the use of imprisonment,
or the success of its implementation in pilot areas, the Government
has reportedly admitted that universal provision of community
courts is prohibitively expensive.
PROMOTING THE CONFIDENCE OF MAGISTRATES
AND JUDGES IN COMMUNITY SENTENCES
442. Professor Cynthia McDougall believed that magistrates
and judges lack confidence in the system to reform offenders.
The Revolving Doors Agency explained that this is particularly
true in relation to community sentences for chronically excluded
Ministry of Justice has identified the relationship between sentencers
and other criminal justice agencies, especially the police and
probation, as a factor which could influence sentencing practice.
Ms Done believed that there is value in building stronger
relationships between criminal justice agencies and sentencers
to reduce the use of imprisonment, citing evidence that lower
youth custody rates are linked to better relationships between
youth offending teams and courts and confidence in youth offending
team court reports.
Ministers drew our attention to work that the Ministry of Justice
is undertaking to strengthen the confidence of sentencers in community
sentencing by providing opportunities for them to observe local
probation activities, as espoused by the Rethinking Crime and
443. There are other opportunities for strengthening
the confidence of sentencers which may also enable them to build
up an understanding of the most effective use of resources. In
June 2008, the Senior Presiding Judge re-issued guidance for liaison
between the Judiciary and the Ministry of Justice, which emphasised
the importance of regular liaison between judiciary and probation
at local level. This indicated that liaison should include sharing
information about the availability and effectiveness of various
sentencing options and performance data about the local probation
service. In addition
each court's use of probation service resources should be regularly
444. There is scope for sentencers to have more information
about what is effective in individual cases. Mr Hill, former Director
of Probation, spoke of the value of feedback to sentencers.
Mr Scott and Ms Lyon pointed out that sentencers have an appetite
for feedback about outcomes of sentencing in particular cases
that they have sentenced.
In addition to leading to better outcomes from sentencing,
closer engagement between sentencers and community agencies can
be helpful in holding the providers of elements of the sentence
to account. Professor McGuire spoke of the value of "therapeutic
jurisprudence" in giving courts a different relationship
with offenders and the agencies providing services to them.
445. The Magistrates' Association explained that
they value the principles of joined-up support through community
justice initiatives enable judges to engage directly with the
offender, allowing them to identify the underlying problems that
are causing lower level offenders to offend, potentially offer
cost-benefits in terms of reductions in re-offending.
446. Sentencers must receive systematic feedback
on outcomes so that they have a clear idea of the efficacy of
their sentencing. We welcome the Government's proposals to explore
whether oversight throughout the duration of community orders,
along the lines of that provided by community courts, could be
made available in all magistrates' courts. It is not clear
where the funding will come from to facilitate this. We are concerned
that such models of community courts do not provide the full range
of community alternatives which the Liverpool and Salford pilot
community courts are able to draw on. We recommend the Government
assesses the potential for drawing in wider community-based sources
of funding for courts, for example, through local businesses,
which we heard about in Seattle. In the meantime probation could
usefully provide feedback to courts on progress in individual
cases, for example, through the use of case studies, in addition
to sharing aggregated data on outcomes.
447. Government should consult with sentencers
and the Crown Prosecution Service to seek views on appropriate
means of dialogue with crime and disorder reduction partnerships
to ensure that provision to reduce re-offending is available to
meet the needs of the courts.
448. The public have limited local information about
courts and little knowledge of sentencing except through media
portrayal of the most extreme cases. While we support the publication
of the outcomes of criminal court hearings online in principle,
we are not convinced that the Government's efforts to make this
information available represents the best approach to overcoming
this. The public needs to be made aware that a tough outcome
in terms of sentence length may not equate to an effective outcome
in terms of the reduction of crime.
599 Q 484 Back
Q 532 Back
Oral statement on the Carter Report, Ministry of Justice
press release, 5 December 2007 Back
Op cit. paragraph 23 Back
Ev 247 Back
Ev 148 Back
Policy Exchange, Less Crime, Lower Costs: Implementing effective
early crime reduction programmes in England and Wales, May 2009 Back
Q 451 Back
Q 131 Back
Q 489 Back
Q 579 Back
Q 490 Back
Qq 484, 558 [Mr Loader, Mr Scott] Back
Q 230 Back
Ev 152 Back
Q 620 Back
See also Ev 235 [Nacro] Back
Ev 285 Back
Ev 236 Back
Q 432 Back
Q 495 Back
Q 578 Back
Q 609 Back
Qq 259-260, 558 [Ms Casey, Mr Scott] Back
Q 268 Back
HM Government, Engaging Communities in Criminal Justice, Cm 7583 Back
The Coalition on Social and Criminal Justice comprises a number
of experienced public and voluntary sector organisations that
work together to reduce crime and better protect the public. Members
are: Clinks; Crime Concern, International Centre for Prison Studies;
Local Government Association; The Prince's Trust; The Prison Reform
Trust and SmartJustice; and the Probation Boards' Association. Back
The Coalition on Social and Criminal Justice, Neighbourhood by
Neighbourhood: local action to reduce re-offending, November 2006
Ibid, p4 Back
Q 273 Back
Q 267 Back
See Q 610 [Professor Pfeiffer] Back
Q 469 Back
Q 425 Back
Q 484 Back
Q 556 Back
See http://www.youngfoundation.org Back
Ev 153-154 Back
Ev 300-304 Back
IPPR and Turning Point, Meeting Complex Needs: The Future of Social
Care, 2004 Back
Rainer Communities that Care, has used similar methodology to
link the public into community planning processes
Ev 276-285 Back
Q 353 Back
Department for Communities and Local Government, Communities
in Control: real people, real power, Cm 7427 Back
Qq 460, 462, 468 Back
Q 596 Back
Q 457 [Ms Cookson] Back
Patrick Carter, 'Managing Offenders, Reducing Crime,' December
HC (2008-09) 715 Back
Ministry of Justice, Impact Assessment: Coroners and Justice Bill,
Ev 264 [Public and Commercial Services Union] Back
Q 177 [Ms Lyon]; Ev 179, 257 [LGA and Clinks, Prison Reform Trust] Back
Ev 232 Back
Ev 236 [Napo] Back
HC (2008-09) 715 Back
Ev 185ff Back
Q 57 Back
Ministry of Justice, Impact Assessment of Sentencing Council for
England and Wales, January 2008, p 4 Back
Oregon Senate Bill 267 Back
John Halliday, Making punishments work: a review of the Sentencing
Framework for England and Wales,
July 2001, p i Back
Ev 185 Back
Ev 187 Back
Ev 180 Back
Q 449 Back
Q 270 Back
Q 83 Back
Q 449 Back
Ev 187 Back
Q 151; Ev 148 Back
Ev 185-186 Back
Q 450 Back
Qq 448-450 Back
HC (2008-09) 715 Back
Sentencing Guidelines Council and Sentencing Advisory Panel 2008-09
Annual Report, p 5 Back
Arie Freiberg, Chair of Victoria Sentencing Council, presentation
to the International Centre for Prison Studies,
21 May 2009 Back
Q 105 Back
Ministry of Justice, Impact Assessment of Sentencing Council for
England and Wales, January 2008 Back
Q 86; Ministry of Justice work on unit costs to provide cost information
which could be used in combination with outcome data from other
research studies to enable cost-benefit evaluations, Ev 207 Back
HC (2008-09) 715, para 67 Back
Council of Her Majesty's Circuit Judges, response to Making
Sentencing Clearer, December 2006 Back
Ev 263 Back
Home Office, Making Sentencing Clearer: A consultation and report
of a review by the Home Secretary, Lord Chancellor and Attorney
General: summary of responses, 2007 Back
Council of Her Majesty's Circuit Judges, Response to Making
Sentencing Clearer consultation, December 2006 Back
Q 83 Back
Q 151 [Ms Barrett, Professor McDougall] Back
Q 175 Back
Ev 149 Back
Q 220 Back
Q 618 [Professor Pfeiffer] Back
"Phase out short prison terms says chief constable David
Strang", Times Online, 26 June 2009, www.timesonline.co.uk;
Prison chiefs: short sentences are a university of crime, The
Scotsman, 10 June 2009 www.thescotsman.scotsman.com Back
Q 428. Since then the Prison Governors' Association has passed
a motion that sentences of less than 12 months should be abolished.
"Calls to scrap short jail terms", BBC Online,
6 October 2009, www.bbc.co.uk Back
Ev 181, 236 [LGA/Clinks, Napo] Back
Ev 185 Back
Q 436 Back
Q 271 [Mr Leslie]; Ev 164 [Howard League for Penal Reform] Back
Q 521 Back
Ev 183 Back
Qq 31-32 Back
Ev 164 Back
The Young Foundation, Escape from the Titanic, 2007 Back
Ev 152 Back
Ev 242 Back
Ev 154-155 Back
Q 280 Back
Ev 200 Back
Matrix Consulting, Dedicated drug courts: a process report, March
Q 451 Back
Sir Igor Judge speech, Current Sentencing Issues, Lincoln's
Inn, 29 October 2007 Back
Ministry of Justice, HMCS Business Plan 2009-10, 2009 Back
"US style courts fail to reduce re-offending", Times
Online, July 28 2009, Back
Q 145 Back
Ev 288 Back
Ministry of Justice, Local variation in sentencing in England
and Wales, December 2007 Back
Q 194; The Youth Justice Board has delivered training to district
judges on youth justice provision to deal with young people who
are likely to receive a custodial sentence. Back
Qq 44, 569 [Mr Straw, Mr Hanson] Back
Including enforcement and compliance, completion rates and re-offending
Qq 269, 270, 279 Back
Qq 179, 448-449 [Ms Lyon, Mr Scott] Back
Q 109 Back
Ev 184 Back