Examination of Witnesses (Question numbers
86-131)
NICOLA
PADFIELD, ANDREW
ASHWORTH AND
PROFESSOR NEIL
HUTTON
11 JANUARY 2011
Q86 Chair:
Good morning and welcome, Nicola Padfield from the University
of Cambridge, Professor Ashworth from Oxford University and Professor
Hutton from Strathclyde University. Welcome to you all. We are
very grateful to have your help this morning as we look at the
draft sentencing guidelines on assault.
Could I open up by
looking at the rather basic question about guidelines? The 2009
Act requires that sentencers "must follow" the guidelines.
That replaces a requirement for them to "have regard"
to the guidelines. Is that going to change practice and is it
going to result in what some members of the judiciary have expressed
as a fear: that they are stuck in tramlines?
Professor Ashworth:
I would say that is a question that has to be resolved fairly
soon and I would expect, since it is a matter of interpretation
of the law, that that is going to be resolved by the Court of
Appeal. If one looks closely at the wording of the new Act, what
the sentencer "must follow" is the offence guideline.
That means that the only binding duty is to impose a sentence
between the top of the highest box and the bottom of the lowest
box, which is a very broad area. What it doesn't say is that the
sentencer must follow the offence category, of which there are
three. The wording of the statute is rather broad as it stands,
but it is in need of interpretation authoritatively.
Q87 Chair:
By comparison, Professor Hutton, what is happening in Scotland?
Professor Hutton:
At the moment we don't have guidelines in Scotland. It seems to
me that the amount of discretion that judges have available to
them in England under this guideline is not much different from
what they have just now. I don't really see it being a major change,
but of course it depends on how it is interpreted by the Court
of Appeal.
Q88 Chair:
What you do have is a Sentencing Council and a Sentencing Information
System, which the judges themselves backed.
Professor Hutton:
Yes. The Sentencing Information System was introduced into the
court in 2002. At that stage, the clerks of court in Scotland
were responsible for entering data into the system and the judges
were in control of the system. When I was a member of the Sentencing
Commission for Scotland between 2003 and 2006, we asked for information
about how the system was being used, and it was very difficult
to get that information from the judiciary. The conclusion we
came to was that the system was not being updated by the clerks,
and therefore the judges weren't making great use of the system.
You would have to ask the judiciary in Scotland whether the system
was being used at the moment or not.
Q89 Chair:
You think that system might be a "dead letter"?
Professor Hutton:
That is a possibility, which is a great shame because the Information
System offered a very useful way for judges to find out about
what had happened in the past in a very flexible way and allowed
them to pursue consistency in sentencing and retain their discretion
at the same time. It is a shame if it is not being used.
Q90 Chair:
Ms Padfield, do you have any thoughts about the general principle?
Nicola Padfield:
No; I think we will all wait with great interest to see how the
Court of Appeal interprets it, particularly the interests of justice
test, because there will be differences of opinion within the
judiciary. So "wait and see" is all we can say.
Q91 Chair:
One of the kinds of discretion that intrigued me as to how the
system copes with it is where a sentencer takes account of a particular
local circumstance, such as a sudden upsurge in a crime not previously
common in the area, and there is a certain public pressure to
give a very clear signal that it will not be tolerated.
Nicola Padfield:
The Court of Appeal was very clear in Oosthuizen that the
trial judge should not say that prevalence influenced his or her
decision unless there was evidence, and I have never heard of
a court being given evidence of prevalence.
Q92 Mr Buckland:
Looking at the guidelines, I was interested in what you said,
Professor Hutton, about the position not changing that much. Looking
at the details, the way in which the new guideline is set out
is somewhat different from the existing one—I think we all
agree—in particular, in the step-by-step decision process
that is set out. There are a couple of points arising from that.
First, is that helpful, or does it confuse the situation further?
Secondly, are they in the right order? Particularly, the "dangerousness"
assessment coming down at No. 6 seemed to me to be rather out
of place, but I would welcome your views about those two aspects.
Nicola Padfield:
I sit as a recorder as well as being an academic lawyer. I can
say that as a recorder, and as one of 1,200 or whatever, I find
it very useful to have a checklist. I am a compliant sort and
I look at the existing checklist and find it very useful. I am
sure that the new checklist will be extremely useful. With regard
to the extent to which one judge rather than another judge follows
the guidelines, as far as I know, we have no real evidence as
to whether everybody is being compliant or whether judges are
resisting. I know, obviously from this consultation, that the
Sentencing Council is concerned that judges, recorders and magistrates
are looking at the nice little diagrams and not reading the words,
which is the essence of why we have a much more complicated scheme.
I would be more comfortable if we had a bit more evidence to tell
us that what we have at the moment isn't working.
In relation to the positioning of "dangerousness",
it was my initial reaction to the consultation that it was not
helpful to move it down the list, because the judge has to decide
that, I felt, quite early on in the decision making, particularly
in relation to getting a pre-sentence report, which comes even
before the sentencing decision. I am now not as concerned as I
was, because I know that Lord Justice Leveson and the Council
have been thinking long and hard about it. I would still like
to know a little bit more on the thinking behind moving it down
the checklist. I still maintain quite strongly that it ought to
go a little bit up the checklist. Before you can consider totality,
you have to know whether it is going to be an IPP or an extended
sentence.
I guess my main interest is thinking through
the bottom line. Most of us think that there have been too many
IPPs. The extended sentence is a really interesting creature to
work with now because we know there is concern about recall, and
those who are recalled under extended sentences are serving much
longer in prison than the sentencing judge probably thought. I
guess when we think about the psychology of decision making, as
we have mentioned in the consultation, it is interesting to think
through whether the judge should think about this sooner or later
in relation to excluding the "dangerousness" provisions.
I think it is a very difficult question.
Q93 Mr Buckland:
You are quite right, because "dangerousness" is a pretty
key determinant as to where the sentence is to be pitched. The
naturally intuitive thing for a judge to do is to consider that
fundamental point first on the evidence that he or she may have
before them, whether it is in a PSR or sometimes in extra material
that may be provided—but usually in a PSR—and make
that decision and indicate to counsel at that stage whether or
not they think it is a "dangerousness" case before going
on then to consider determinate terms.
Nicola Padfield:
That logic was very clear in the Criminal Justice Act 2003 provisions,
when there was no discretion in relation to the "dangerousness"
provisions. I think your point is actually arguable now. On the
argument for moving "dangerousness" down the list, I
can see why it is there because it is part of the judicial discretion,
but maybe my colleagues want to add something there.
Professor Ashworth:
I just think that a judge has to advert to that earlier, even
if the judge doesn't deal with the details until later. It is
true that even if one goes down the "dangerousness"
path a minimum term has to be set, and in that sense one has to
go through all the other hurdles, but I can't believe that a judge
would not advert to that until such a late stage. As you point
out quite rightly, the pre-sentence report has to be called for
if there isn't one. It must be considered in some way at an earlier
point, even though the judge will then have to follow all the
steps in order to set the minimum term.
Q94 Mr Buckland:
It is to you, Professor Ashworth, that I want to address a question
about the somewhat dual role which has potential for confusion
between the Court of Appeal's existing role in setting guideline
cases and the role of the Sentencing Council. Do you think that
there is a confusion and do you think that is an issue that needs
proper resolution?
Professor Ashworth:
If I might say so, I think it is a larger issue than that because
I think you also have to add the Judicial Studies Board into the
mix, so there are three institutions. Certainly during the period
when I was on the Sentencing Guidelines Council and the Advisory
Panel, there was not much evidence of joined-up operations. At
that time, there was some close interaction between the Court
of Appeal and the sentencing bodies because, as you may remember,
when Lord Judge as Lord Chief Justice found that many of the trial
judges were finding difficulties with the burglary guideline,
the official bodies were set to work on the burglary guideline
but he, in the Court of Appeal, decided to make a judgment which
set out a revised approach to burglary.
Q95 Mr Buckland:
R v Saw.
Professor Ashworth:
R v Saw. That was obviously carving out a role for the
Court of Appeal. It is too soon to say whether the Court of Appeal
will continue to play that role as a kind of interim body, dealing
with things because of the inevitably slow progress of the Council.
That is one issue. I think also the Judicial Studies Board and
its training function need to be brought into this. There is some
evidence from the past that the three organisations do not always
work smoothly together and that communications aren't always as
good as they might be.
Professor Hutton:
In Scotland, in the new Sentencing Council, the guidelines have
to be approved by the Court of Appeal, so there is a clear relationship.
I am not sure if I think that is the right relationship, but that
is the relationship that Parliament has decided on.
Q96 Chair:
So the Court formally approves the guidelines?
Professor Hutton:
Yes. The guidelines will be devised by the Sentencing Council
when it comes into existence, but the Court of Appeal has to give
approval, so the judges retain overall control of sentencing.
Q97 Mr Llwyd:
The new guideline requires sentencers to focus on culpability
and harm rather than premeditation in determining the seriousness
of the offence in the first instance. Do you consider this to
be a reasonable approach?
Nicola Padfield:
Who are you looking at?
Mr Llwyd: I am looking
at all three of you. I am thirsty for knowledge.
Nicola Padfield:
Well, it is not new. I will just speak briefly. Culpability and
harm have been with us for ever, as far as I know. I remember
section 143 of the Criminal Justice Act 2003, which constructed
sentences in this regard. I don't think any of us thought it was
very surprising, so there is nothing novel in saying that sentencing
is very difficult. You have to balance culpability and harm—yes.
Professor Ashworth:
But the strangeness of the existing assault guideline is that
premeditation appears in three of the four boxes, and that was
what judges were finding difficult to cope with, because premeditation
should be an aggravating factor. Perhaps it should be the leading
principle in the top box, but it should not be in three separate
boxes. As a member of those two committees, I still scratch my
head and wonder how we ever came to issue a guideline which had
premeditation in each of the three boxes. I have been back through
the papers and I can't understand how it passed through the two
bodies, but it did. When you look at it now as compared with the
one that is being consulted on, the old guideline looks very strange
with premeditation in each of the three top boxes. Clearly the
idea of bringing premeditation in on a sliding scale and as one
of the issues that the court looks at when it is considering culpability
must be right.
Q98 Mr Llwyd:
The Council has shifted from establishing starting points for
the level of sentence for a first-time offender who pleads not
guilty to an approach based on a categorisation of the seriousness
of the offence. Again, is this an appropriate approach?
Nicola Padfield:
I think it is very sensible that the Council has moved away from
saying this is a guideline based on a first-time offender pleading
not guilty, because you don't very often see a first-time offender
pleading not guilty. Therefore it is useful that you are not starting
with that, what always felt to me a slightly artificial starting
point. The problem, of course, is that the new Sentencing Council
leaves open the big conundrum that we've always had, and we always
will have, I fear, about to what extent do previous convictions
make this worse and to what extent does the clean record act as
a mitigating factor? We have problems with "how long is a
piece of string".
Professor Hutton:
I think it is a sensible change and it does allow judges to go
below the guideline if someone has a clean record. It allows more
mitigation for someone with no previous criminal convictions.
Professor Ashworth:
If you look at the two stages that are being proposed, previous
convictions don't come into step one at all. They come in at step
two, which is once the court has decided on the starting point
and moved it up or down a little to reflect any of the aggravating
and mitigating factors at step one. At step two, previous convictions
or previous record come in. Of course, in theory, because it is
quite clear from this proposed guideline that the court can move
down for a clean record and move up for a bad record, the starting
point must assume something. It seems almost to assume an offender
with one previous conviction, in the sense that you can move down
for no previous convictions and up for many. I don't know whether
that is a theoretical complication. I hope someone will tell me
that that is just academic nonsense and that this is perfectly
workable in practice, because I can see that there is a problem
in the existing guidelines, as many judges believe that the guidelines
are not helpful in relation to most of the people who stand before
them because most of them have previous convictions.
Q99 Mr Llwyd:
I have just one other question, if I might. The Council proposes
adding youth, or rather lack of maturity, as a mitigating factor
which would determine a lesser culpability. John Thornhill, the
Chair of the Magistrates Association, came before us a few weeks
ago and he agreed, but he was wondering how this lack of maturity
would be measured, by whom and what exact information would be
given to the court to inform their decision. I suppose what I
am asking is: how can the concept of maturity be applied with
consistency?
Professor Hutton:
That is a very difficult issue. I am assuming that that sort of
information might be in a pre-sentence report, and in Scotland
in a social inquiry report it would be common practice now to
comment on maturity. I think it is such a difficult issue that
you have to rely on judicial discretion to make a judgment about
maturity.
Q100 Chair:
I find this all slightly puzzling, because isn't almost anybody
who is in front of you, by your view of society, lacking in maturity?
Professor Ashworth:
This is certainly an issue in relation to youths under 18, where
the courts are urged not to take the chronological age but to
look at this concept of maturity. It will not get any easier if
we extend that up to the 18 to 25 age group.
Q101 Mr Llwyd:
I put the question, because it is something that has arisen in
our deliberations, but, in practice, over the years that I have
been in practice, it has never been a great problem, to be perfectly
blunt. I was interested in your views; thank you.
Nicola Padfield:
It is a difficult issue, but it is important that there is power
for the judge, especially if the guidelines are going to be a
little bit more rigid, that there is discretion to show some concession
for human frailty, if you like. That is all part of culpability.
You are less blameworthy if you are significantly immature—or
you may be.
Q102 Chair:
Part of our job is to reflect what might be public concerns. There
might be quite a lot of public concern in general, although not
necessarily in some particular cases, at the thought that, for
example, somebody's lack of maturity was an extenuating circumstance
when they engaged in domestic violence. Of course, it was immature
to deal with a domestic disagreement by hitting your wife. The
idea that the immaturity in some way mitigates the culpability
in that circumstance would not be a widely popular one, and for
good reason.
Nicola Padfield:
Of course.
Q103 Yasmin Qureshi:
I want to go back to the point my colleague first raised about
premeditation, and the guidelines saying that we must focus on
culpability and harm rather than premeditation in determining
the seriousness of the offence. Professor, you were saying that
this comes up all the time in different categories—not looking
at premeditation in sentencing—but some offences, as you
probably know, depend very much on the premeditation aspect. For
example, you have murder, you have manslaughter— involuntary
manslaughter, voluntary manslaughter—where the premeditation
aspect is in fact almost crucial to the definition of the offence.
Involuntary and voluntary manslaughters can be categorised so
many different ways when someone carried out the act that led
to somebody's death. Surely saying that you can't look at, or
not give much priority to, what was going on in someone's head
when they took the action that they did, doesn't that cause problems
in a number of cases when it comes to sentencing?
Professor Ashworth:
No; that was not my intention. I agree entirely with what you
say—that premeditation or not is an important issue in determining
the level of culpability. My point was merely that in the existing
guidelines which are in force, if you look at assault occasioning
actual bodily harm, the top category is premeditated assault resulting
in serious injuries. The next one is premeditated assault resulting
in relatively serious injury and the next one down is premeditated
assault resulting in minor injury. The point was there is just
too much premeditation in there when that particular offence—section
47—is one that is often committed recklessly rather than
with intention. I am really saying that I think the Council is
right to move away from the formula of the existing guideline.
Q104 Chair:
One other issue that was raised with us was whether an offender's
personal circumstances, such as caring obligations, should be
an explicitly recognised factor in guidelines or not. Do you have
any views on that?
Nicola Padfield:
My answer to that question is that we should do more research
at the moment to discover those factors and the influence that
they are having. It makes sense, and we all understand why the
Sentencing Council has moved ahead on this guideline as it is,
but from where I stand there has been remarkably little research
recently on what factors really do count in sentencing. We have
some evidence on why some sentencers are coming in low on the
guidelines, but why we don't know. I would hesitate to answer
your question without pushing hard for more empirical research.
Q105 Chair:
What about the theoretical possibility? Is it right or is it wrong
to make this an explicit issue in guidelines?
Nicola Padfield:
Which particular issue?
Q106 Chair:
The personal circumstances of the person being sentenced—the
offender.
Nicola Padfield:
It is very difficult to write down all the mitigating factors
which apply. That has always been a problem with guidelines. It
is much easier to identify aggravating factors than it is to write
down mitigating factors.
Q107 Chair:
How easy is it for a court to be satisfied on issues of mitigation
like this, which may be covered in the pre-sentence report but
which may be open to challenge? Is the court in a good position
to make assessments of that kind when it considers taking them
into account in giving a sentence, if someone makes a claim that
they have an almost 24-hour requirement to look after somebody
in their family, whoever it may be?
Nicola Padfield:
You raise a really important question about the amount of time
we allocate to the sentencing decision. Your question sort of
implies, "Wouldn't it be nice if we had much longer to make
the decision about sentencing everyone?" The reality is that
sentencing happens, I think, remarkably swiftly, and we don't
explore all the issues to the extent that we should. One of my
concerns generally in this area is that we see sentencing as a
one-off event which happens in court, very quickly. If we could
shift to thinking about sentencing more as a process, thinking
about recalls, for example, as all part of the sentencing process,
and that we got more comfortable with amendments of sentences
down the lines for different reasons, the system would work better.
But that is probably a very big issue for another day.
Q108 Mr Llwyd:
Are you concerned that there are no real stand-down reports—in
other words, reports produced on the day of sentence by probation
officers?
Nicola Padfield:
I think pre-sentence reports are very, very important, not only
for sentencing but as the basis for sentence planning for those
people who get custodial sentences and non-custodial sentences.
It is very, very dangerous—risky, if you like—to save
money on pre-sentence reports.
Q109 Mr Llwyd:
But there is now, is there not, a target within the probation
service for something like 30% or 40% of reports to be prepared
on the morning? In other words, that would make it impossible,
for example, in your case now, to decide whether 24-hour care
were required for a relative or whatever. That would be impossible
to determine or to even speculate upon. There is now a target
that there should be 30% or 40% of these being produced. That
is detrimental to the whole theme of what you've been saying just
now. I agree with you, as a matter of fact, but I am just wondering
whether you think there is an overuse of them.
Nicola Padfield:
It's a huge issue. We could go down the road of discussing legal
aid and probation reports. The more information you have earlier
on the better, but money is limited in the criminal justice system
at the moment and we are, of course, concerned.
Q110 Ben Gummer:
That leads very neatly on to the cost of sentencing reform. Where
money is limited, the nexus between the cost-effectiveness of
various punishments is something at which the Sentencing Council
is required to look. Do you believe that the degree to which they
have assessed the cost and effectiveness of sentences in their
guidelines has been sufficient or do you think it could have been
done differently?
Professor Hutton:
In terms of the appendix which looked at the resource implications,
if you are discussing that, they had an enormously difficult task,
because they had to make all kinds of assumptions about how sentencing
might be changed with the guidelines. It seems to me that there
is very little evidence internationally that you could go on that
would suggest that these guidelines would make very significant
changes to sentencing. With regard to some of the estimates that
have been made of switching from short custodial sentences to
community orders, I don't see any reason to think that is going
to happen. I am quite sceptical about this, but I am not sure
how else you would do that analysis. It is a very difficult task
to be faced with.
Q111 Ben Gummer:
Do you both share that opinion?
Professor Ashworth:
I certainly do, because for 10 or 11 years on the Sentencing Advisory
Panel we were under the same statutory duty to take account of
costs and effectiveness and we found it terribly difficult to
make any progress at all. Even to argue about costs is difficult,
because you have to decide which costs are allocated to which
sentence and which are not. It is not an easy operation. Then
when you get on to effectiveness, as Neil Hutton says, the international
evidence is not terribly clear. There are certain things we can
say, but you can't say a great deal when it comes down to the
sort of detail required for these changes. I just think it is
very difficult to come out with a clear answer.
Q112 Ben Gummer:
So the fact that the Council is required by Parliament to consider
this, I would suggest, has become another "dead letter",
or there is need for further and more detailed research. What
kind of approach would you take?
Professor Ashworth:
I would certainly favour more research, but of course more research
is expensive. As Neil Hutton says, we don't only need the research
on the effectiveness of sentences and costs. We need more research—and
this is coming back to what Nicky Padfield says—into actual
sentencing and what factors have what effects on courts. That
is what we are lacking. There is the Crown Court Survey now, but
that is on a rather modest scale.
Q113 Ben Gummer:
Given your comments earlier, Professor Hutton, about the extent
to which the system in Scotland has fallen into desuetude, how
would you approach a reform of the Crown Court Survey, if that
is what is needed, to provide more robust evidence both to the
Council and to judges?
Professor Hutton:
The one-page form is collecting information, particularly on aggravating
and mitigating factors. I am not sure how that is going to be
helpful in allowing us to understand more about the sentencing
process and how judges make their decisions, but I can understand
why a one-page form came at the end rather than a 30-page form,
which was suggested at the beginning. When we were designing the
Sentencing Information System the judges wanted to include hundreds
of factors, and it was the job of the research team to try and
narrow it down because the hundreds of factors would have been
unmanageable and would not have helped to give us any greater
insight.
I am afraid I don't have a simple answer to your
question. I favour more qualitative research with judges, and
working with judges to look at particular types of offending,
not necessarily as they are defined in the criminal law but as
they are defined for sentencing purposes. The criminal law is
designed to charge people and to go through certain formal court
processes. But when it comes to sentencing, for example, for child
abuse, judges see that as a kind of offence, but it is not labelled
in Scotland as child abuse; it is a number of different sexual
offences which are added together. Talking about sentencing of
child abuse cases might lead to a more general approach to sentencing
that kind of offence than trying to count the number of times
particular factors turn up. I would favour a more qualitative
research approach working with judges.
Q114 Ben Gummer:
That is a very interesting response. I suppose the complaint of
the judiciary is that they don't want to have to fill out a huge
form every time they sentence someone. On the other hand, if the
Council is going through a process of looking at a particular
offence, some robust, penetrative, qualitative research in that
area over a long period of time might produce something more worthwhile.
Are you all in agreement about that?
Nicola Padfield:
I think there are unreasonable expectations hanging on this survey
in many ways. It is a very simple one-page questionnaire. It doesn't
ask a lot of questions which would have been helpful. Very often
a sentencer is sentencing for a number of offences at the same
time, and has to fill in the form in relation to the principal
offence only, which I think skews the results immediately. The
choice of principal offence is going to be a difficult one. I
am certainly with Professor Hutton that we need more qualitative
research. This is going to pick up, of course, what the sentencers
choose to report at the end of a busy day in court. Indeed, they
may fill it in earlier on. I have small concerns as to whether
the questionnaire itself may affect sentencing decisions. The
Court of Appeal has held that judges are entitled to use it as
an aide-memoire when it certainly wasn't designed as such.
There are many questions, and I am sure Professor Ashworth has
views on this too.
Professor Ashworth:
Yes, but they duplicate yours.
Q115 Elizabeth Truss:
I wanted to ask two different questions on the subject of costs.
First, is there a danger that, because it is under the auspices
of the Sentencing Council, we are looking at costs within the
criminal justice system and not costs across the broader public
services? The costs may be passed on to health services or social
services and there is a danger of that. Secondly, what is the
international evidence on the most effective countries in terms
of assessing the costs and benefits of their criminal justice
systems and reacting accordingly?
Nicola Padfield:
The first question is much easier to answer than the second question,
so I will choose the first question, which is, again, the unreasonable
expectations hanging on the sentencing system. I am sure that
we would all say quite easily—and you would all agree with
us—that there are unreasonable expectations that the sentencing
system reduces crime out there. The problems of crime are way
beyond what the sentencing system can achieve and we all have
to understand that. It is not the sentencing system; it is not
the penal system which is going to reduce crime. The issue of
crime in society is much, much bigger than that and goes beyond
the small numbers of criminals who are in fact convicted and sentenced.
There are many reasons why the Sentencing Council in its public
awareness function has a really useful role to try and convince
the public that sentencing is not going to achieve what everybody
wants it to achieve. That's the first part. Of course, there are
much, much broader social, health and educational factors involved
in reducing offending than anything that can be done simply by
a sentencing system. In terms of the international comparisons,
I am not in a position to be able to give an answer to that.
Professor Hutton:
On the first point—the evidence, for example, about the
effectiveness of community punishments internationally—very
rarely do you get any punishment that is more than 30% effective.
That tends to be interpreted as, "Oh, community punishments
don't work." I would turn that upside down and say that 30%
is a pretty good rate to get people to change their lives because
it is a very difficult thing to do.
Q116 Elizabeth Truss:
When you say 30%, what does that mean?
Professor Hutton:
That means that, if three people serve the penalty, one of them
will reduce their offending and the other two will go on to reoffend.
There is an assumption made that that is not good and there is
a problem with these community orders. I think changing people's
lives is incredibly difficult, especially for the chaotic and
difficult lives that some of these young people lead. We should
say that that sort of level of success is about the best we can
hope for and try and find the best schemes with that level of
success and use those where we can. Then it is for society to
decide whether we want to spend that money: whether we think it
is worth spending the money for one in three people to reduce
their offending behaviour.
On the international evidence, there are some
American states which set a budget for their penal corrections
expenditure and they write guidelines which will allocate people
to punishments according to that restricted budget. That seems
to me to be a perfectly sensible public policy decision that a
Government could make, instead of saying justice has no cost,
because we all know that justice does have a cost and a price.
It would be possible in theory to do that. It has not been suggested
in Scotland and the judges, certainly, would disagree with that.
Professor Ashworth:
I agree entirely with that. One of the sad facts is that the various
measures available to the courts don't seem to produce radically
different outcomes. Indeed, all of them are less powerful as predictors
of future behaviour than the number of previous convictions someone
has.
Q117 Chair:
Sorry—all of them are less powerful?
Professor Ashworth:
Less powerful than the number of previous convictions a person
has, which means that they are highly likely to reoffend. That
tends to be a more powerful factor in predicting the future than
what type of sentence they are given on this occasion.
Q118 Elizabeth Truss:
This is slightly off-topic. Does that mean that there should be
more focus on stopping people offending in the first place relatively
in our system?
Professor Ashworth:
That gets back to Nicola Padfield's point, which is that one can't
expect the sentencing system to be changing people's lives. There
have to be things done in society outside of the sentencing system,
whether preventive, restorative or whatever they happen to be.
Simply the magistrate or judge in the court handing down a certain
sentence to the small minority of offenders who are caught and
sentenced is not going to alter the crime rate generally or, necessarily,
the future behaviour of those few.
Q119 Mrs Grant:
My questions relate to public and victim understanding of the
guidelines which you have touched on already. Could you explain
what sort of advice you would give to the Sentencing Council on
those issues and managing those expectations of victims and the
public? That is a question to all of you.
Professor Hutton:
I was a bit sceptical about the quality of the data, but the fact
that judicial practices are being monitored, I think, for the
first time by the Crown Court Sentencing Survey, and we will be
able to report on the extent to which judges are adhering to guidelines
or departing from guidelines is very helpful. Having guidelines
but not knowing whether judges pay any attention to them or not
is not good or useful for improving public confidence. I think
that is a good measure for improving public confidence.
Secondly, I think the step approach, which we
don't have in Scotland, is a logical and clear way of explaining
to the public, at least in theory or in principle, how sentencers
go about the task of sentencing. I think that could be helpful.
Thirdly, I think the Council should engage with the public in
trying to explain how sentencing works. With the kind of deliberative
polling technique that the Council has recognised, where you get
a number of people together and you give them information, you
speak to them and you allow them to engage in dialogue, people
get a better understanding of sentencing and their views are less
punitive than if measured by a simple British Crime Survey question
of, "Do you think the courts are too lenient or too severe?"
Measuring public opinion is best done by deliberative polling.
I think the Council should engage in that. Also, it is a way of
communicating with the public and a way of generating evidence.
Q120 Mrs Grant:
Do you think the public are more satisfied in Scotland as opposed
to here?
Professor Hutton:
I don't know the answer to that. The responses of Scottish people
in surveys are much the same as in England. If you ask, "Are
judges too lenient or too severe?", people say they are too
lenient. Everybody knows that judges are too lenient. It is a
kind of knee-jerk, off-the-top-of-the-head reaction—yes,
that's the answer to the question. If you get people round a table
to discuss things, the research we did in Scotland showed that
the punitive level drops and people choose a sentence which is
very close to the sentence that would be chosen by the court.
I would not speculate as to whether there is much difference between
England and Scotland on that.
Q121 Chair:
In Scotland, would you say that people think that the Children's
Panel system is too lenient?
Professor Hutton:
I don't know if there is evidence on that, I am sorry. I would
have to go and research that. I am not sure whether the public
have been asked that question.
Nicola Padfield:
This whole victim and public confidence issue is a really interesting
and difficult question. It has to be a two-way process also. I
am hoping that the Sentencing Council is going to have the confidence,
in a sense, to try and lead public opinion by putting more information
into the public domain. Certainly the more we have by way of public
consultations and clearly written documents can only be helpful
in terms of public education. I will say no more because I am
going to repeat what you have just said.
Professor Ashworth:
I agree with all that has been said, except that I am not sure
that I agree with Neil Hutton's second point, because the two-step
approach which we are now seeing in the consultation guidelines
doesn't seem to me to be entirely logical. I am not sure, therefore,
that it will help the public and victims to understand. At stage
one, we have certain aggravating and mitigating circumstances
which are taken into account in how far the judge should move
away from the starting point, but then in step two, we have other
factors like the location of the offence, the timing of the offence
and the ongoing effect on the victim. I am not sure what separates
those from step one. I don't see any logical separation. There
are other things at step two which are more logically there, like,
as we were discussing earlier, previous convictions, things like
the guilty plea and all those other effects, and personal mitigation,
which may well be step two, but I am not sure on the actual division
that the Council has settled on whether that is going to be helpful
in communicating to victims and to the public how decisions are
being made.
Q122 Mrs Grant:
Could you all again, please, let me have your views on the proper
use of victim personal statements and at what stage in the sentencing
process they should be brought in?
Nicola Padfield:
In practice, I think they are fantastically useful. It is very
important that they should be discussed with the defendant. It
is a way of bringing home to a defendant the reality of the harm
caused by their crime. Judges and magistrates when sentencing
often refer to the victim impact statement, so it is an enormously
useful document normally which does underline the harm that has
been caused. The recent developments in their use and their being
mentioned in court have to be welcomed. That is a completely different
issue of course from mentioning whether the victim should have
any say in the actual sentence. That is a completely different
issue, but the victim impact statement has been very useful in
putting the victim's view more centrally to the court.
Professor Hutton:
I would agree with that. I have nothing to add.
Q123 Yasmin Qureshi:
I have a question arising from the victim personal statement.
I know this process started to take place some years ago, but
have you spoken to anyone or are you aware of the fact that there
are a number of people within the criminal justice system do think—and
I say this very cautiously—that quite a lot of time the
victim personal statements in a number of cases do, to use the
colloquial expression, "gild the lily"? I am going to
declare here that I was a practising barrister in criminal law
before I became a Member of Parliament. Even as defence counsel
and as prosecuting counsel I did look at quite a lot of these
victim impact statements and I thought, "Come on, you are
gilding the lily here. I find it quite hard that you've really
got that impact that you are saying you have." That happened
in a lot of cases. In the very, very serious cases, nobody would
have any dispute about it, but most criminal cases that come before
the courts are on the whole of a lesser degree of seriousness—offences
of assaults and things. Does anybody now consider the question
of whether perhaps these victim personal statements in a lot of
cases should not be that important in determining sentence because
of the fact that people do have a tendency to exaggerate?
Chair: It is the same
question, in a way, that I was asking about mitigation as to whether
that lily is gilded as well. Do you have any thoughts?
Yasmin Qureshi: Am I
being very controversial here?
Professor Ashworth:
Procedurally the answer is that the defence are able to, and should,
challenge any point in the victim impact statement which is not
properly evidenced. I think the defence should challenge that.
It obviously is a difficult thing for them to do and it might
rebound on them, but if they are confident that there has been
an exaggeration the defence should challenge. There is plenty
of authority to say that the prosecutor should challenge any excessive
statements in relation to the defence too.
Q124 Yasmin Qureshi:
But, in reality, when I see a statement saying, "I was really,
really distressed and I can't sleep any more", it is going
to be very difficult for any defence counsel to say, "I'm
sorry, I challenge that."
Professor Ashworth:
But exaggerating losses from a burglary or something like that
is hard.
Q125 Yasmin Qureshi:
That is right. I have seen so many written statements where I
am not convinced entirely about the full extent of the victim
harm that has been expressed, but it is going to be impossible
for me to legally challenge it or say that that is not right.
Maybe on a financial issue such as, "I've lost £10,000",
yes, that is something I know I can challenge because that is
a different ball game, but when it is about emotions and feelings
and "I'm crying every single day" and that kind of thing,
you can't really challenge those things. I do wonder whether sometimes
the pendulum is swinging the other way in this.
Nicola Padfield:
If we were a postgraduate discussion group at this moment, I would
say to you, "I feel a PhD coming on." What we need is
much more evidence. Who is going away at this moment and researching
victim impact statements to discover the extent to which your
hunch is true or not true? What a really interesting subject to
dig into. Again and again, we, inevitably, will say to you that
we don't really know very much in criminal justice. There is very
little research. What we want is much more research in all these
areas. That is a really interesting question and nobody can answer
it at this moment.
Q126 Chair:
It would be quite hard to get the co-operation of the research
subjects on an issue like that.
Nicola Padfield:
Not necessarily for the right PhD student with no agenda.
Q127 Mrs Grant:
But there has to be a common-sense element to this. If the allegation
is that a woman or a child has been raped, then of course they
are not going to be sleeping at night, are they?
Nicola Padfield:
Yes.
Yasmin Qureshi: And nobody
can argue against that. I am not thinking about really serious
cases. I am talking about the fact that we get victim impact statements
now in sections 4 and 5 Public Order Act offences and for minor
common assaults. I came home once and found a burglar dismantling
my TV and everything, and I just chased after him. There are more
serious things than that, but what I am talking about are the
lesser offences. I don't think anybody has any doubt about murders
and rapes and things like that and the impact on victims and their
families. It is just all the other lesser offences.
Q128 Ben Gummer:
Ms Padfield, you lead on to a general question that I would like
to put to you all, because it is apparent to anyone who has a
cursory interest in criminal justice that the level of research
is very limited, whether it is efficacy, process, decision making
or cost-effectiveness. Again, this is a completely uninformed
point of view, but it also seems that the commissioning of research
is rather haphazard, and also the interrelationship between the
various bodies who might be interested in that research, as you
alluded to earlier, is not as developed as it could be. I am aware
that I am about to invite a large degree of special pleading for
research and criminology departments and jurisprudence faculties,
but do you have any ideas about how we could improve the amount
of research we are doing, especially international comparative
research, how we could better direct resources and how the criminal
justice system could procure the kind of information and data
analysis that it requires?
Professor Ashworth:
I think historically there have been two problems. One is funds,
of course, and the other is access. I entirely agree with my colleagues
as to the sort of research which we require. The qualitative research
which involves perhaps sitting with a judge and discussing cases
as they go along is much more likely to yield usable information
than filling in a little form. But would the judges give access
to that sort of thing? Historically, it has been very difficult
to achieve. Access is one issue, as well as the financial issue
of funding the research.
Q129 Chair:
Interestingly, the Committee—and most of its current members
were not serving on it at the time—when looking at the experience
of some other European countries like Germany found that a common
comment was, "Some of the best research material is coming
from Britain. We are using it and you are not." They place
considerable reliance on some of the criminology that is done
in this country and saw our system as one which was failing to
make use of what was already available.
I think this was
something that Nicola Padfield said, but others may have views.
Is it a realistic objective to expect the guidelines to be directly
useful to the general public in understanding how the system works,
or would that require them to be expressed in terms that didn't
meet the need for sentences to have clear and detailed guidance?
Should the guidelines be written by the plain English society
or whatever in order to produce something that is very readily
publicly accessible, or is that an unrealistic objective and should
the public communication be dealt with in other ways?
Nicola Padfield:
There is no such thing as "the public" of course, and
there is no such thing as "the victim". Some victims
will find it very useful to be told that "A guideline exists
that might help you understand why he only got three years."
Other victims won't find it useful to read it. In terms of generalising,
we have to be very careful what we think victims want. The prime
function of these guidelines has to be structuring judicial discretion.
As far as I am concerned, the fact that they also help victims
and the public to understand what judges are doing is a secondary
point.
Professor Ashworth:
I think it is worth mentioning that the existing system has two
forms of guidelines. We have the Magistrates Court Sentencing
Guidelines, which are in a rather more simplified form than the
general guidelines which are used in Crown Court cases. It is
an ambition of the new Council to bring those two modes of guidance
together. Whether that will work I'm not sure, but that is one
of the things that they have in mind to do. When you look at the
two pages here, it is reasonably complex. Whether it would be
suitable for lay magistrates it is difficult to say, but I think
there is an issue there and that issue goes on also under the
assault guideline to the fact that, if the assault guideline is
promulgated as it now stands, it will bring in a different sort
of judicial and magisterial reasoning from the one that exists
in all the other guidelines.
We are going to have a very, very difficult period
where change is going to have to be managed, because in this guideline
we have starting points which are not based on a first offender
pleading not guilty, whereas all the other guidelines are still
based on a first offender pleading not guilty and being convicted
after a trial. One can understand that all the training that has
gone in to get magistrates to follow their own guidelines, and
getting the Crown Court to follow their approach, is going to
have to be unscrambled if this new approach is taken forward.
Of course, that can't be an argument against making any change
at all or else we will be stuck in a rut. All I am saying is that
the change will have to be managed very carefully.
Q130 Chair:
Do you think that that point ought to be brought out more clearly:
the change from no previous convictions to likelihood of previous
convictions?
Professor Ashworth:
Yes. It is clear enough in the document. My worry is how that
is going to affect the sentencing behaviour of magistrates who
have to sentence one way in assault cases and another way in all
other cases, and judges as well.
Professor Hutton:
My view is that the previous sentencing guidelines in England
and Wales were pretty clear and were written in fairly accessible
English, not terribly technical, and were actually very good guidelines.
If I was recommending guidelines in Scotland, it would be narrative
guidelines of the sort that are used in England and Wales rather
than a numerical grid system that they adopt in the United States.
Although I said before that in principle having steps is a good
thing, I do agree with Andrew that once you get into the steps
it gets a bit more complicated. For example, it is hard to see
what the point of having categories is if judges only have to
sentence within the offence range and can depart from that in
the interests of justice. An interested member of the public might
say, "What's the point in having categories then if you can
switch?" Then it becomes a little less clear, but the fact
of having a step process is a good idea.
Nicola Padfield:
If we are commenting on the management of change, we of course
have to add into the mix any future Criminal Justice Bill or Sentencing
Bill which is likely to come forward in the near future. Yes,
it is a nightmare working out how you implement change in this
area. They are starting to look at guilty pleas and the totality
principle. Every time you change something, the Sentencing Council
has a challenge which should not be underestimated.
Q131 Chair:
I think the Government has expressed a reluctance to bring forward
more Criminal Justice Bills for the time being, haven't they?
Professor Ashworth:
But they do have a Green Paper out at the moment.
Chair: Thank you very
much indeed for your help. It is much appreciated.
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