House of Commons - Cutting crime: the case for justice reinvestment

Cutting crime: the case for justice reinvestment - Justice Committee Contents

7 OTHER COMPONENTS OF A MORE SUSTAINABLE JUSTICE SYSTEM

Engagement with the public

A NATIONAL DEBATE ON SPENDING ON CRIMINAL JUSTICE

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.[599] 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".[600]

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".[601]

380. Lord Carter specifically advocated:

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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 justice policy.[603] 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.[604] 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.[605] 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.[606] Professor Cynthia McDougall agreed that research messages from an economic approach should be made more available to the public[607] However, Professor Loader was sceptical that the public would engage with the debate on what works.[608]

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.[609]

383. Professor Loader recommended engaging people in discussion about crime in the place in which they live rather than at national level.[610] 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 justice system.[611] 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.[612] Mr Faulkner reminded us of the work of Rethinking Crime and Punishment in the Thames Valley in demonstrating the value of engaging individuals and communities.[613] Professor Pfeiffer highlighted the role of churches and clergy in engaging local communities in Germany.[614] 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. (kaihsu)

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.[615] The Restorative Justice Consortium was reasonably optimistic:

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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.[617] 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.[618] Mr Dean highlighted the success of the efforts of SmartJustice to persuade the Mirror to print positive stories on offenders and prison.[619]

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 happening.[620] Rt Hon David Hanson MP, Ministry of Justice Minister, agreed there was a need to counter the influence of the media: "…the 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".[621] 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.[622]

BUILDING PUBLIC CONFIDENCE IN THE SYSTEM

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.[623]

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".[624]

390. The Government has recently set out additional proposals in a green paper Engaging Communities in Criminal Justice.[625] 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 justice system.

PUBLIC OWNERSHIP OF LOCAL PROBLEMS

392. Neighbourhood by Neighbourhood, a report by the Coalition on Social and Criminal Justice,[626] 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:

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The report concludes:

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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 local problems.[629] Chris Leslie of the New Local Government Network agreed.[630] 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.[631] 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 offenders.[632]

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".[633] 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:

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Local accountability may therefore reduce the calls on national government to accept responsibility when things go wrong.

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."[635] 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 groups.[636]

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 reduction partnerships.[637]

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.[638] 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.[639] 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.[640]

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."[641]

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.

Participatory budgets

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:

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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.[643] All local authorities should be using participatory budgets by 2012.

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 [644]

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.[645] 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 OF IMPRISONMENT

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.[646] 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 years.

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 probation capacity.[647] 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 individual case.[648] 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:

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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.[650] 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.[651] 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."[652] Others remarked that it was unclear how the Sentencing Council would differ from the existing Sentencing Guidelines Council.[653]

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).[654]

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.[655] 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.[656] 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 £37.5million p.a..[657]

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 practice.[658]

Challenges for the Sentencing Council

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 "…from serious deficiencies that reduce its contributions to crime reduction and public confidence."[659] Judge Marcus suggested that the objective of sentencing commissions should be to monitor how well sentencers achieve objectives of public safety and public values.[660] 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.[661] 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.[662] 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 practices.[663] We 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 re-offending.[664] 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.[665] 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.[666] Judge Marcus believed that the best available research and data must be used to make decisions at individual sentencing level.[667] 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.[668]

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.[669] 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".[670] 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.[671]

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.[672] 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.[673] 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 quality.[674] Professor McGuire also questioned the capacity of agencies in the criminal justice system to collate data to feed into better quality research.[675] Limited financial provision has been made to increase the capacity of the courts to collate data as a result of the Council's introduction.[676] Dr Chloë Chitty, Ministry of Justice researcher, acknowledged that there continues to be limited data on sentencing decisions but stated that it is improving.[677] 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.[678] 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.[679]

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.[680]

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' Association.[681] The 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.[682] 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.[683]

427. Our evidence suggests that sentencing guidelines should take account of costs more explicitly, as NICE guidelines on NHS treatments and therapies do.[684] 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.[685] Professor Cynthia McDougall advocated development of a cost-benefit scale for sentencing.[686]

428. Some witnesses, including Mr Coughlan, believed the criteria for sentencing should be changed as a means of managing the behaviour of sentencing practitioners.[687] 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.[688] 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.[689] Mr Tidball, chair of the Prison Governors Association for England and Wales, expressed reservations about abolishing such sentences.[690] 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.[691] 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.[692]

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.[693] 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 high—in terms of its use of prison and probation resources—should 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.[694] 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.[695]Mr Aitken described his increasing unease at the way the judiciary are detached from any kind of community or continuity in their sentencing.[696] The Magistrates' Association agreed that there must be greater visibility of justice in local communities.[697]

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.[698] 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.[699] The Young Foundation believed that community justice initiatives like community courts can bolster public confidence in innovative interventions. [700]

437. Mr Faulker argued that justice reinvestment principles are consistent with the notion of community justice.[701] Mr Hill believed that community courts offer the potential for reinvestment through greater use of community penalties[702] 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.[703] 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.[704]

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.[705] 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%.[706] 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.[707]

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".[708] Her Majesty's Court Service has explained its role in supporting work to reduce re-offending through community courts, and community engagement.[709] HMCS 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.[710]
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.[711]

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.[712] The Revolving Doors Agency explained that this is particularly true in relation to community sentences for chronically excluded offenders.[713] The 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.[714]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.[715] 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 Punishment initiative.[716]

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.[717] In addition each court's use of probation service resources should be regularly reported.

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.[718] 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.[719]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.[720]

445. The Magistrates' Association explained that they value the principles of joined-up support through community courts.[721] 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

600 Q 532 Back

601 Oral statement on the Carter Report, Ministry of Justice press release, 5 December 2007 Back

602 Op cit. paragraph 23 Back

603 Ev 247 Back

604 Ev 148 Back

605 Policy Exchange, Less Crime, Lower Costs: Implementing effective early crime reduction programmes in England and Wales, May 2009 Back

606 Q 451 Back

607 Q 131 Back

608 Q 489 Back

609 Q 579 Back

610 Q 490 Back