Written evidence submitted by the Criminal
Justice Alliance
DRAFT SENTENCING
GUIDELINE ON
ASSAULT
Executive summary
The Criminal Justice Alliance (CJA) is pleased to
have the opportunity to submit evidence to this Inquiry. This
submission briefly considers those questions posed by the Justice
Committee on which we have a view. In general, the CJA welcomes
the work of the new Sentencing Council to date and supports the
structure and content of the draft assault guideline. In particular,
we support the potential for people who commit lesser assault
offences to be given a less severe sentence under the proposed
guideline than they are currently, reversing in part the increase
in the severity of sentencing in recent years.
About the Criminal Justice Alliance
The CJA (formerly the Penal Affairs Consortium) is
a coalition of 49 organisations—including campaigning charities,
voluntary sector service providers, research institutions, staff
associations and trade unions—involved in policy and practice
across the criminal justice system. The Criminal Justice Alliance's
current member organisations are: Action for Prisoners' Families;
Adullam Homes Housing Association; the Apex Charitable Trust;
the Association of Black Probation Officers; the Association of
Members of Independent Monitoring Boards; Bindman and Partners;
Birth Companions; Catch22; the Centre for Crime and Justice Studies;
the Centre for Mental Health; the Children's Society; the Churches'
Criminal Justice Forum; Clean Break; Clinks; DrugScope; the Fawcett
Society; the Griffins Society; INQUEST; the Institute for Criminal
Policy Research; JUSTICE; Nacro; the National Appropriate Adult
Network; the National Association of Official Prison Visitors;
the New Bridge Foundation; Pact; Penal Reform International; the
Prison Officers' Association; the Prison Reform Trust; Prisoners
Abroad; Prisoners' Advice Service; the Prisoners' Education Trust;
the Prisoners Families and Friends Service; the Public and Commercial
Services Union; the Quaker Crime; Community and Justice Group;
RAPt; Release; the Restorative Justice Consortium; Rethink; the
Revolving Doors Agency; the RSA Prison Learning Network; SOVA;
the St Giles Trust; Transform Drug Policy Foundation; UNLOCK;
Women in Prison; the Women's Centre Forum, the Young Foundation;
and Young Minds.[1]
The Criminal Justice Alliance works to establish a fairer and
more effective criminal justice system.
SUBMISSION OF
EVIDENCE
Introduction
1. The CJA welcomes the work of the Sentencing Council
and the approach that it has taken in conducting its work to date.
The CJA supported the establishment of a new Sentencing Council
and believes that the Council can promote stability and consistency
in sentencing and improve the availability of data and other information
about sentencing. The structure of the previous Sentencing Advisory
Panel and Sentencing Guidelines Council was unwieldy and resulted
in undue delay in producing new guidance. A single Sentencing
Council, led by the judiciary but also encompassing non-judicial
members, can maintain judicial confidence while also playing a
role in reviving public confidence in sentencing.
2. The CJA also endorses in general terms the proposals
set out in the draft guideline on sentencing in cases of assault.
In particular, the CJA welcomes the recognition that custodial
sentences have got considerably longer in recent years, with a
general trend towards longer sentences between 1999 and 2008 for
all assault offences. As the Sentencing Council states, this is
particularly true of the offence of causing actual bodily harm,
for which the average custodial sentence length for adults increased
by 39% during this period.[2]
In our view, it is important to assess the moderate reductions
in sentence severity for some offences proposed in this guideline
in this context.
3. Partly as a result of increased sentence lengths,
the prison population has grown from 44,552 in 1993 to more than
85,000 today and while custody is the right response for some
offenders, the CJA believes that the scale of this increased use
of prison is neither an effective nor an appropriate response
to crime and has damaged work to effectively rehabilitate offenders.
Custodial sentences result in high levels of reoffending and have
a damaging effect on prisoners, their families and their communities.
The CJA advocates cutting the use of custody overall and we therefore
support the proposals set out by the Sentencing Council—which
would reduce the number of custodial sentences given for assault
and see people who commit lesser assault offences given a less
severe sentence than they are currently—which we believe
are fair and proportionate.
What are the strengths and weaknesses of the existing
guideline?
4. The CJA agrees with the Sentencing Council that
updating the existing guideline on "Assault and other offences
against the person", published by the Sentencing Guidelines
Council in February 2008, is sensible. We support their assessment
that the existing guideline was problematic for sentencers to
use, which may have resulted in their departing from the guideline.
5. The existing guideline also does not take into
account the age or maturity of the offender as a potential mitigating
factor. The CJA has previously suggested that the age and maturity
of offenders, and particularly young adult offenders aged 18-24,
should be taken into account in sentencing, and we therefore welcome
the addition of this factor in the proposed new guideline. The
CJA has contributed to the work of the Transition to Adulthood
Alliance, and endorses its submission to this Inquiry on this
issue.
6. In addition, at the time that the existing guideline
was produced no attempt was made to assess its impact on the prison
and probation services. The statutory duty placed on the new Sentencing
Council to produce a resource assessment in respect of new guidelines
(which assesses the likely effect of the guidelines on the resources
required for the provision of prison places; the resources required
for probation provision; and the resources required for the provision
of youth justice services) is wholly welcome and makes it possible
to develop a much fuller picture of the impact of the proposed
changes to sentencing in assault cases.
Is the simpler structure for the guidelines designed
to make them more accessible to the public appropriate?
7. The structure of the draft guideline, which sets
out in a more accessible way the process taken to determine a
sentence, is an improvement on its predecessor. It is important
in maintaining public confidence in sentencing that the decisions
that are made in reaching a sentence are clear and can be explained,
and this process should help to make this possible.
What is the likely impact of the guidelines on
victims and the reduction of re-offending?
8. The resource assessment published alongside the
guideline estimates that the guideline will lead to between 1,525
and 4,480 fewer prison sentences annually. It is highly likely
that the vast majority of these offenders would instead be given
a community penalty and that many of these offenders would previously
have received a short prison sentence. This shift from short prison
sentences to community penalties is likely to reduce reoffending
rates, as the latest research from the Ministry of Justice shows
that community sentences are more effective (by 7 percentage points)
at reducing one-year proven reoffending rates than custodial sentences
of less than 12 months for similar offenders.[3]
If the implementation of the proposed guideline resulted in people
who would now receive a short custodial sentence instead receiving
a community sentence, we would therefore expect fewer to reoffend.
In addition, reducing the number of people sent to prison would
cut prison overcrowding and reduce "churn", freeing
up space and resources in the prison estate to better rehabilitate
those people who do need to be there. As a result, while making
precise estimates of the impact of this guideline on reoffending
rates is difficult with the available data, it seems very likely
that it would have a positive effect overall.
9. There is also no evidence that shorter sentences
and less use of prison would reduce deterrence and therefore lead
to increases in crime, creating more victims of crime in the future.
Indeed, there is no empirical evidence to support the efficacy
of deterrence in sentencing.[4]
The Halliday Report examined this issue, concluding that: "The
evidence, though limited in this area, provides no basis for making
a causal connection between variations in sentence severity, and
differences in deterrent effects."[5]
This is supported by an overwhelming body of evidence, including,
for example, an international review of the evidence which showed
that sentencing has no significant deterrent effects and concluded
that "variation in sentence severity does not affect the
levels of crime in society".[6]
This concurs with the conclusions of a Home Office-commissioned
review which found that there is insufficient evidence to prove
that there is a link between the severity of sentences and crime
rates.[7]
For this reason there should not be an expectation that the minor
reductions in sentence severity proposed by this guideline for
some assault offences would increase the number of future victims
of crime.
10. The resource assessment also estimates that the
implementation of the guideline could lead to savings of between
£6,656,000 and £21,652,000 per year by reducing the
use of prison and of community penalties. If invested in prevention
and improving rehabilitation in prisons and in the community,
this could have an additional impact on cutting crime and reducing
reoffending. This model of "justice reinvestment" was
explored extensively in a previous House of Commons Justice Committee
inquiry,[8]
and the CJA continues to strongly endorse the recommendations
of that inquiry. If the financial impact of this guideline would
be in line with the assessment made by the Sentencing Council,
then it would provide additional resources, which do not appear
to have been considered as part of the Ministry of Justice's budgeted
cost savings and would therefore be available for reinvestment
in order to fund additional rehabilitative services in prison
and in the community.
Further comments
11. At present the draft guideline does not make
any provision for sentencers to look at the impact of a sentence
on individuals other than the offender when sentencing, particularly
in cases where the offender is a parent or carer. The imprisonment
of a parent is particularly damaging, with children of prisoners
having about three times the risk of developing mental health
problems compared to their peers and experiencing higher levels
of social disadvantage, yet about 160,000 children a year have
a parent sent to custody and 7% of all children will see a parent
imprisoned during their school years. The CJA therefore recommends
that the Sentencing Council should consider whether personal obligations
to others could be introduced as a potential mitigating factor
to be considered in sentencing. This would enable sentencers to
consider the impact on an offender's dependants when weighing-up
the available sentence options.
12. In addition, the mental health of offenders should
be considered in sentencing, as the draft guideline recognises.
A very high proportion of people within the criminal justice system
have mental health problems or learning disabilities, with up
to 90% of prisoners having some form of mental health problem.
While most have common conditions, about one in ten has a more
severe condition such as psychosis, and about two-thirds have
a personality disorder. Research has also shown that 20-30% of
prisoners have learning disabilities or difficulties that interfere
with their ability to cope within the criminal justice system.
The draft guideline currently identifies mental illness or disability,
where it was wholly or partly responsible for the commission of
an offence, as something that should be taken into account at
Step 1 of the process as a potential mitigating factor. It then
states that "where an offender has a mental illness or disability
but it is proved that it was in no way responsible for the commission
of the offence, it should not be considered a mitigating factor".
During Step 2, however, "serious medical conditions requiring
urgent, intensive or long-term treatment" are identified
as a potential factor reducing seriousness or reflecting personal
mitigation. It is not clear whether this includes mental ill health
and disability, but the CJA would support an approach where even
if a mental health problem is not responsible for the commission
of an offence, it could be taken into account as a personal mitigating
factor in the sentencing process, if appropriate. However, measures
would need to be introduced to prevent "double-counting".
Conclusion
The Criminal Justice Alliance welcomes this Inquiry.
Parliamentary scrutiny of new sentencing guidelines is an important
step in developing sentencing that has widespread political support
and legitimacy. Overall, the CJA welcomes the proposed new guideline.
While ensuring that sentences remain fair and proportionate, the
proposals would halt the drift towards longer sentences and protect
scarce resources in the prison and probation services. Clear guidance
like this can also promote consistency in sentencing, helping
to make sure that offenders receive the sentence that they deserve.
November 2010
1 Although the CJA works closely with its members,
this submission should not be seen to represent the views or policy
positions of each individual member organisation. Back
2
p 1: Sentencing Council (2010) Consultation stage resource
assessment
http://www.sentencingcouncil.org.uk/docs/Assault_Guideline_Resource_Assessment.pdf Back
3
Ministry of Justice (2010) Compendium of reoffending statistics
and analysis
http://www.justice.gov.uk/compendium-of-reoffending-statistics-and-analysis.pdf
Back
4
p 76: Ashworth, A. (2005) Sentencing and criminal justice,
Cambridge: Cambridge University Press. Back
5
p 128: Halliday, J. (2001) Making Punishments Work: A Review of
the Sentencing Framework for England and Wales, London: Home Office. Back
6
Doob, A and Webster, C (2003) "Sentence Severity and Crime:
Accepting the Null Hypothesis" in M Tonry (ed.)
Crime and Justice: A Review of Research, 30: 143-195. Back
7
Von Hirsch, A, Bottoms, A, Burney, E and Wikstrom, P-O (1999)
Criminal Deterrence and Sentencing Severity: An Analysis of
Recent Research, Oxford: Hart Publishing. Back
8
House of Commons Justice Committee (2009) Cutting crime: the
case for justice reinvestment, First Report of Session 2009-10,
London: The Stationery Office Limited. Back
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