Written evidence submitted by Nicola Padfield
DRAFT SENTENCING
GUIDELINE ON
ASSAULT
1. am a Senior Lecturer at the University of Cambridge,
a Fellow of Fitzwilliam College, Cambridge and I also sit as a
Recorder in the Crown Court. (I am also the legal adviser to the
Independent Hate Crime Scrutiny Panel, set up by Cambridgeshire
CPS, which is composed of representatives of minority communities,
in order to review CPS hate crime files, and Editor of Archbold
Review).
2. I am answering the questions that you specifically
ask, before raising some broader questions in my conclusions:
3. What are the strengths and weaknesses of the
existing guideline?
Strengths: Guidelines have been hugely useful in
focusing attention on relevant starting points and sentencing
ranges for a broad range of offences. I also think the "decision-making
process", exemplified particularly clearly on page 11 of
the current Assault guideline, has been very helpful. Of course
sentencers benefit from having "anchors".
Weaknesses: not all offences have been covered by
guidelines (a notable exception is drug offences) and some need
some fine-tuning (the SC is wise to remove some of the references
to pre-meditation in the OAPA offences whose mens rea is
recklessness). The emphasis on a custody threshold remains unhelpful
(see conclusions).
4. Is the simpler structure for the guidelines
designed to make them more accessible to the public appropriate?
I cannot see that what is proposed is simpler. It
seems much more complicated to me. Individual guidelines are much
longer, and more difficult to follow. I like the current format:
words, and then a one-page guideline. (It maybe, of course, that
I simply like what I know - see my comments on research below).
Why has the assessment of dangerousness slipped down
the decision-making process?
5. Is the movement from an offender-based to an
offence-based starting point helpful?
I do not understand this question. Where is the movement
identified?
6. Does the guideline strike the right balance
between harm and culpability?
This is always a subtle balancing act, and it is
difficult to understand the 'balance' in theory as well as in
practice. It would be interesting to know the extent to which
the draft has been 'road tested' on practitioners: has the SC
analysed how both the existing and proposed guideline would be
applied in individual hypothetical scenarios (see my conclusions
below)?
7. What is the likely impact of the guidelines
on victims and the reduction of re-offending?
The new guideline is unlikely to have any impact
on victims: having guidelines may well be helpful in explaining
sentence decisions to victims (and to journalists), but this proposal
appears to me to be unduly complex? I am sorry that the emphasis
on compensation seems to have disappeared.
In relation to the reduction of re-offending, I find
it difficult to see what impact the guideline is likely to have.
A reduction in re-offending is unlikely to be affected by a sentence
guideline without a radical overhaul: a rethinking of the sentencing
process, as a whole, is necessary, including what goes on during
a sentence, the release of prisoners from custody, and the supervision
and support of offenders in the community. Suspended and deferred
sentences seem to be a little invisible here? The emphasis on
the "reduction of re-offending" is deeply unhelpful
if there is no recognition that re-offending can be both serious
and minor: desistance from crime is a difficult and complex process.
8. Conclusions
The SC is to be congratulated by the speed with which
it has leapt into action. A Sentencing Council is an important
body. However, I am surprised that the focus is not on evaluating
current guidelines before proposing dramatic change: has there
been qualitative research on how guidelines are currently being
used? What is the evidence base for change? (There is a captive
audience of those being trained as Magistrates/Recorders/Judges
for the first time: their use of guidelines in training could
be researched and analysed). I wonder whether the resources of
the JSB are being used as much as they might be: I would hope
that as well as the largely quantitative survey recently launched
(about which I have concerns), the SC is carrying out observations
and perhaps semi-structured interviews with sentencers. Judges
and magistrates should be encouraged (again and again) to make
use of a "hotline" to the SC on how they perceive the
current guidelines to work, and these responses should be analysed.
The consultation mentions research on the psychology of decision-making:
it would have been useful to see a paper/annex both on this research,
and on how it fed into the creation of this guideline. Indeed,
the SC could usefully provide a compendium of all research on
which it bases its decisions.
9. As well as focusing on collecting and analysing
research evidence, I would hope that a SC priority would be public
education: it should seek to lead public opinion, and not simply
to reflect it. Judges and the public need much more education
on the penal system: sentencing is a complex process, not a one-off
event. A small start would be to update the Guideline Judgments
Case Compendium, which could perhaps be done together with the
JSB?
10. Some of the SC's challenges have been created
by unduly complex legislation: I do not think the concepts of
offence range, offence category and category range are helpful.
The definitions in Annex A are, to me, counter-intuitive (eg an
offence range is "a range of sentences" not a range
of offences, as its name suggests). But I realise that this is
based on section 121 of the Coroners and Justice Act 2009. I have
long argued that the concept of the "custody threshold"
reinforced in this guideline, is misguided (and is not necessarily
required by legislation, even section 152(2) of the Criminal Justice
Act 2003). Perhaps the SC could be asked to advise on legislative
simplification?
November 2010
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