UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 637-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

Draft Sentencing Guideline on Assault

Tuesday 23 November 2010

John Thornhill, Diana Barran and Javed Khan

Evidence heard in Public Questions 1 - 35

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Justice Committee

on Tuesday 23 November 2010

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Chris Evans

Mrs Helen Grant

Mr Elfyn Llwyd

Yasmin Qureshi

________________

Examination of Witnesses

Witnesses: John Thornhill, Chair, Magistrates’ Association, Diana Barran, Chief Executive, Co-ordinated Action Against Domestic Abuse, and Javed Khan, Chief Executive, Victim Support, gave evidence.

Chair: Mr Thornhill of the Magistrates’ Association, good afternoon and welcome back to us. Mr Khan from Victim Support and Ms Barran from Co-ordinated Action Against Domestic Abuse, we welcome you all and we are very grateful to have your help this morning. I am going to ask Mr Buckland to begin.

Q1 Mr Buckland: Yes, thank you very much indeed, Sir Alan. The first questions that I want to ask are about the general approach taken to the new guidelines by the Sentencing Council. It is primarily addressed to Mr Thornhill as somebody who is a sentencer. I don’t know about you, Mr Thornhill, but as a fellow sentencer, as a Recorder in the Crown Court myself, I found it quite useful to look at the old guidelines, the existing ones, and the new ones-

John Thornhill: In comparison.

Q2 Mr Buckland: And to do a compare and contrast. I am glad you anticipated me. The first thing I wanted to ask you about was your view about the decision-making process. The old guideline decision-making process has eight stages that are fairly clear. The first stage in the old process was the identification of dangerousness. Looking at the new process, things have been rejigged somewhat. Dangerousness comes at step six, way down the agenda. There are other points as well where the order of things has been radically changed.

The point that I should emphasise at this stage of course is that the new guidelines, should they be adopted, will be a "must follow" set of guidelines rather than a "have regard" set of guidelines. The new Act has changed the criterion, to make these guidelines mandatory, if you like. I would be interested in your view, first of all, as to the change in order on the decision-making process-whether you think first of all this is a helpful way to do things and the order is right.

John Thornhill: The first thing I would say is that magistrates are quite used to using guidelines, as you know. It was Lord Justice Leveson who reminded me that the first guidelines were written about 50 years ago by the Magistrates’ Association themselves in relation to road traffic. Indeed, our guidelines on all other offences came into place about 12 or 15 years ago, so we are used to using guidelines. If you look at the current structure, the eight steps, many of those steps are already there: steps in relation to four, five and six, the issue of early guilty plea and the issue of taking account of time spent on remand. Many of the steps are actually there.

The real significance, as you rightly say, is the shift in the terms "harm" and "culpability" because previously the emphasis was on culpability. The emphasis in the new guidelines now is on the outcome of the offence-the harm that has been sustained or the harm that has been done as a result of the commission of that particular offence. That may accord or resonate with the views of the public that, in this sense, the impact of the offence is perhaps the more important thing. But it is right that within those guidelines it’s an inclusive "and", so when we are looking at whichever category to place the particular offence in front of us there, it says "must take account of the harm and the culpability and measure the balance between those two". It is always a balancing act.

In terms of having a structure, magistrates are quite happy to do that. We have always used a structure. The fact that there is a shift of emphasis is something that we need to look at. We think that we would like to see, from some of the comments that have come back already, a greater clarity in terms of the offence factors and offender factors. We find that in the second block they are mixed in, whereas currently they are separate. I think we would like to perhaps look at a greater use there. But we are happy that there is a structure. We believe that there needs to be a structure, a framework, in which to sentence.

You are absolutely right that it says we must follow, but if one reads the subsequent clauses of the Act one will see that if it is in the interests of justice to go outside the category range or even outside the whole offence range, and there are valid reasons for doing that, then the sentencer, the judge, can do that providing there are valid reasons and those reasons are given. We don’t feel in that sense that they are over-prescriptive but they are, after all, guidelines. I think it is in those circumstances that magistrates would say, "Yes, we are happy with the principles of guidelines." We need to discuss some of the issues that we’ve talked about, but I think many of the things that are in there we are used to dealing with. Dangerousness, for instance, is not something that we deal with significantly in magistrates’ courts, but we appreciate that in the higher courts dangerousness is a more compelling element in terms of how you deal with aggravation and mitigation.

Q3 Mr Buckland: The point is, do you need to assess whether an offender is dangerous before coming to a view as to tariff or level of sentence?

John Thornhill: Yes. It might be argued that in the higher court that particular factor is a factor that comes in earlier, and it is that part of the culpability factor that you would take into account.

Q4 Mr Buckland: Yes, it would be, wouldn’t it? Then culpability of the offender would relate to his or her circumstances as opposed to the degree of harm done. It could be argued that of course dangerousness is a test of future risk of serious harm to the public, so it is a bit of a mixed question, but you can see the point I am making. It is a fundamental determinant of level of sentence.

John Thornhill: Yes, but it is absolutely right that there has to be a structure. The danger is that when you’ve got three magistrates sitting together, if we don’t work with a framework, then all factors are thrown in at different points. Whereas if you begin by saying, "What was the outcome of this offence? What was the impact on the victim?"-we’ve got to take account of victims-and then say, "Right, what was the culpability of the offender? What was their intention? What were their thought processes?", which is the mens rea issue that lawyers would talk about, they all have to be part of that balance. Because it says "and". We think it is vital that that "and" is there. It is those two components. The balance and weight you give to those will depend on the offence that you are dealing with and the offender that you are dealing with.

Q5 Mr Buckland: Yes. You will be aware of course that if you depart from these guidelines-some people would say they are tramlines-you have to be very clear and very, very explicit. The reasons that you have to give will have to be very, very, clear.

John Thornhill: Absolutely.

Q6 Mr Buckland: Because, frankly, you would be vulnerable to an appeal if you didn’t do that.

John Thornhill: Of course. Magistrates know that, and there is no doubt that when these guidelines are introduced there will need to be training for magistrates. That is right. We have always done that-we’ve always had training. It is interesting that if you look at some of the figures that were produced by the Ministry of Justice in relation to consistency of sentencing, which is very different from uniformity of sentence, it is about the approach to sentencing, not ensuring that we have the same sentence for like offences, because you will know that no two like offences are alike for a variety of different reasons.

Q7 Mr Buckland: I am very glad you said that, Mr Thornhill. That just brings me to the second point. The other thing that struck me about the difference between the two documents was that the new document does represent something more of an assault course for the sentencer. In other words, there are a lot of particular hurdles that the sentencer has to get over. The fear is that if the sentencer misses even one of those hurdles out they are vulnerable in terms of a challenge.

John Thornhill: Again, I come back to the point that some of those hurdles are already there, so that sentencers are taking these factors into account already. The two that I think are not necessarily there in the current structure that we have are the third step and then, as I said, the dangerousness step, which in many cases will not necessarily apply to offences that we deal with in the magistrates’ courts. It is right that there is a focus for how we move through the reaching of our final decision and the sentence that then becomes appropriate in the circumstances of the offence and the harm caused, and indeed what was in the mind of the offender when they committed that offence, or the factors relating to the culpability of the offender. The impact on the victim comes first, and I think that might resonate with what the public feel. That is a shift from what is there currently.

Q8 Mr Buckland: I am grateful. Starting points, for those who are unfamiliar with them, relate to a level of sentence based upon a person pleading not guilty and who is a first-time offender.

John Thornhill: In the current guidelines, absolutely, yes.

Q9 Mr Buckland: Doing the comparison, it looks as if all starting points are the same save for one, common assault, which is an area that magistrates will deal with more regularly than the Crown Court. The proposed new starting point is a community sentence, whereas custody was the starting point previously. What is your view of that and do you think starting points are really that useful when it comes to guidelines, bearing in mind their particularly narrow parameter?

John Thornhill: The response we’ve had from members so far is that they would like to retain the principle of having starting points, because it is an anchor, in one sense. This is where we begin and then we look at where the aggravating features come in and impact. We then look at any mitigating features that come in and impact. The sentence can then shift up or down according to the other factors that need to be taken into account.

On whether the starting points are at the right level, a number of members have expressed concern, particularly with common assault, that in category three the starting point is a fine. I think within that there is a belief that we need to reconsider that and maybe look at the starting point for any common assault as a community order at least. That then gives a great deal of flexibility. If you are going to deal with category three, where the starting point is a fine, to escalate that you have to find significant factors that aggravate the offence, to raise that up. I think in that particular one we are concerned about that level and would perhaps like to see that that is a community penalty.

Assault, whatever level of assault, is an assault against an individual. Therefore, taking this in comparison with other offences which are not necessarily against an individual-I am not suggesting that there is no victimless crime because there is a victim in every crime-if it is a crime against an individual, we have to take that more seriously. I think we would like to look at that particular starting point and maybe raise that to the community level, which would give greater flexibility.

Chair: I want to turn to Mr Llwyd because we have moved into an area that I was expecting him to want to explore.

Q10 Mr Llwyd: Can I ask you specifically, Mr Thornhill, about an offence of actual bodily harm or assault on a police constable with intention to resist arrest? The guidelines suggest starting points of community orders and fines respectively for the lowest level. What are your views on these proposals?

John Thornhill: Again, I think we have to look at this in the context of the nature of the offences. Assault on a police officer is a serious matter. This is an individual who has a public duty, an individual on whom we, as members of the public, rely to protect us and keep us safe. We think that maybe consideration ought to be given to raising again the starting point for that particular assault-assault on a police officer. Of course, those of you who are experienced advocates in the courts will know that assault on a police officer covers a wide range of offences from very strong words to a police officer, to shoving a police officer, to something that bit more serious. We have to have that wide range, but I think it is about looking at what is the common offence. Generally, most of us would agree that the common offence is pushing, shoving-a little bit of physicalness about it. Maybe then we are not treating that in the same way as we are treating an actual bodily harm offence. Maybe we need to look at getting the balance right on that one.

We all know the difficult job that police officers have. If I admit to being out on the streets of Concert Square in Liverpool at three o’clock in the morning you’ll probably take it the wrong way, but we know that the police officer has a very difficult task. Certainly it is not an easy job and they need protecting. If they are protecting you and me as members of the public, they need the protection of the courts in those circumstances. That is not one of the simple offences in our view. It is an offence where we may need to look at the guidelines on that one.

Q11 Mr Llwyd: The new guideline appears to have shifted from encouraging sentencers to focus on the presence or absence of premeditation: so sentencing on the basis of the culpability and harm. Do you think this is an appropriate departure?

John Thornhill: The responses we’ve received so far are that they’re quite happy with that. Premeditation is there as one of the factors to take into account, so it can always be taken into account in the culpability. Again, as I said, it comes back to this mens rea issue-what was in the mind of the offender when they committed that offence. Clearly that is an important factor, but it should not be the lead factor. Therefore we think the broad view now of harm and culpability, which includes premeditation, is a better way of doing it than just focusing on premeditation in the first instance.

Q12 Mr Llwyd: Could you give us an example of a case where you think it might be appropriate for the sentencer to move above the guidelines and, secondly, below?

John Thornhill: This is very difficult. We have always been looking at this. I did say earlier that we could go outside the category range. I think if we put something into a category and we cannot find serious aggravating features, there may be examples when that might be the case. Certainly one of the concerns that many magistrates and the public have is the sentencing of female offenders. I think that is something particularly that we would need to look at.

It may be an offender such as one I had in front of me two or three weeks ago: a 32-year old female offender in very serious circumstances-in breach of a suspended sentence, in breach of community orders imposed in March this year-committing a minor offence of shoplifting. In its own right-£60 of cosmetics or something like that-it was not the most serious of offences. If you take the offence itself, it may end up in category three because the harm is less, the culpability is less, but in the context of that offender and then in the context of the pre-sentence report that one receives, which says, "This offender has mental problems", without going into detail, there is a situation where you might say it is appropriate that on the offence it would go into category three, but you might then wish to escalate that to another category, with the purpose, first, of punishing the continued flouting of the court orders and, secondly, recognising the situation that that defendant is in. She had mental problems and she was the carer of four children, the oldest being 14. When I asked was the 14-year old a typical 14-year old, her response in a proud scouse accent was, "No, much worse than a typical 14-year old". When you take that into account, there is an opportunity when, in the interests of justice-justice not just to the victims but justice here to the offender-it would be right to go outside that category. I think that would be a place where I would certainly use that argument, which is what we did.

Q13 Mr Llwyd: On the whole issue of going above the sentencing guideline, roughly how often do you commit to the Crown Court for sentence?

John Thornhill: There will be some figure somewhere which I don’t have to hand.

Mr Llwyd: Sorry. I didn’t mean to put you on the spot.

John Thornhill: No, I know you didn’t, Sir. Certainly from my recollection and in my experience, very, very rarely in the past. It is very rare that we commit to Crown Court for sentence. I know Mr Buckland may, from the other end, be able to give you some facts and figures, but I think it is rare. I don’t want to put you on the spot either, Sir.

Q14 Mr Llwyd: Do you support the removal of the distinction between the intensity of community sentence that should be considered, and do you agree with the Council’s view that it may be necessary to impose more demanding requirements to support rehabilitation even where the offence is not particularly serious? I suppose that links to the example you gave us of the woman in Liverpool.

John Thornhill: The point I have just been making. Yes, absolutely. Let me take the first bit. This is about high, medium and low levels of community order. There are mixed views on this. A number of magistrates have said they would be quite happy if it was removed. Other magistrates have said we ought to retain it.

There is a factor here that may well be worth taking into account. When we are looking for pre-sentence reports, to simply say to probation, "Consider the whole range of community orders" may well be quite demanding, whereas some guidance as to where we think community orders should be pitched might be useful in the writing of the pre-sentence report. That could take place if, as we often do in Liverpool, we have the opportunity to have a probation officer in the courtroom so that dialogue can take place with the probation officer and with the offender. As in the case of the young lady I was talking about, the dialogue was with the offender, her legal representative and the probation officer in court to say, "What is it that is most appropriate here?", recognising, as I said, that we do need to show the victim that we are taking some action.

It may be some indication of where we are talking about it. The difference between something like 40 hours of unpaid work, which would be at the low end, and a significant and intensive programme to tackle drug or alcohol abuse or an anger management programme is quite significant. It might be argued that if we have that debate with the probation officer in court so that they understand the thinking behind the sentencer’s thoughts at that stage in the process, that might be useful. But it is mixed on that particular issue.

Q15 Chair: One element that is introduced in these guidelines is this concept of maturity for 18-plus. This is an opportunity also for our other witnesses to comment. The idea came from Ms Barran’s organisation, didn’t it?

Diana Barran: Not knowingly, but anything is possible.

Q16 Chair: I am not trying to attribute any blame to you, or indeed credit. It is the idea, and it is obvious to anyone sitting in the courts, that many people have not reached what most others regard as maturity at the age of 20, 21 or 22. Is this a concept that you are going to find easier to apply?

John Thornhill: It is going to be a difficult concept because, first, how are you going to measure it; and, secondly, who is going to measure it and what specific information are you going to give the court in terms of black and white decisions as to the maturity of the individual in front of you?

Nevertheless, any factor that is relevant to the sentencing process is important to the sentencers, and it then has to be a matter for the sentencers as to the weight they give that particular factor. What we also have to come back to remember is that there are victims, and again that this individual has committed a criminal offence. If their state of mind was such that a charge has been made, then there may be less weight to be put on that particular factor than there would be at an earlier stage. If maturity was a serious factor, there may be a concern as to whether there was a charge laid in the first place. Don’t put too much emphasis on it, but I think again with all the other factors it is one that can be put into the balance and may have an impact.

It may have an impact, therefore, in determining-for instance, if it is a community order-the type of programme that might be relevant so that we can say, "Yes, this is a 24-year-old, but with the maturity of someone far less than that." Therefore the programme on domestic violence for a 24-year-old needs to be tailored to the thinking processes of an 18-year-old, which are less developed than perhaps, hopefully, the thinking processes of a 24-year-old. Again, it is achieving the balance.

Can I come back to the other point that Mr Llwyd referred to-if we are looking for rehabilitation, should we make the orders more onerous? This is a difficult one. We have to be careful that we don’t set an offender up to fail. We have to take that seriously into account in balancing what sentences we impose. Currently, as some of you will know, if an offender breaches, all we can do is make the sentence more serious. When I end up with someone who is on their fourth breach, I am thinking, "Why was the community order increased, increased, increased?" The one thing that that offender could not do was cope with the increasing of that community order, so we end up with an offender in front of us for whom we now have to find a sentence. Again, you put all the factors into the mixer, turn the handle and custody comes out at the bottom. But is that appropriate?

Q17 Chair: Would it have been better to have enforced the first order in the first place?

John Thornhill: Absolutely. If there is going to be a breach, do we then say, "All right, we need to look at giving probation officers greater discretion as to whether they bring it back to court or not"? Many years ago they had wide discretion. That created some problems because offenders were flouting court orders and really getting away with it. That then got narrowed, and like lots of other things we swung the pendulum too far the other way. What we need to do now is bring that back. We say, yes, just because there are two failing to attends does not mean it should necessarily come back to court. There needs to be a framework guideline for that, but give the probation officer that bit more discretion. But also give the magistrates and the judges the discretion so that we are not required just to increase the order, but we could say, "All right, we will impose a short fine. We will deal with it in a different way."

I think what is also important is, if it is a serious breach, why is that breach there in the first place? Very often we are left thinking, "Why did this young lady fail four times to comply?" I need that information in court as a sentencer, because that then is a personal offender factor. If I can take that into account, where I set that in terms of the guidelines may again be an occasion when I might go outside that guideline because in those circumstances that is what is needed. I think our concern is that if it is about rehabilitation, it is about saying, yes, it should be onerous because it should be challenging. In many cases, the reason will be that we’ve gone for a rehabilitative sentence rather than a custodial sentence. There has to be therefore, in terms of the public’s perception, a measure of punishment.

One of the things we like to see in dealing with a community order-I believe this; I certainly do it and I encourage my colleagues to do it-is to say in court, "You need to be punished because of the nature of the offence", etc., and give the reasons. "The punishment element will be this, but we also appreciate it is important, if we can, to stop you reoffending. You’ve told us certain things", etc. "So we are going to tackle those issues by imposing this community order with this programme requirement to attend. It is for your good and your benefit in that case, but we’ve also recognised the need to punish." We don’t want to make it too onerous because, as you rightly say, Sir Alan, they will then fail.

Q18 Yasmin Qureshi: I want to explore the issue of the impact of the new guidelines on resources for prisons and probation services. I want to take up a couple of things that have been discussed in the media quite a bit. First, what is your view about short-term sentences, especially for low-level offences, and whether they work or not?

John Thornhill: This is a very interesting debate and I think you will know there are lots of debates going on on this one. You will know I am involved in a "Make Justice Work" project, where we are taking evidence around the country about this view. We’ve visited two intensive alternatives to custody programmes.

There is an issue here, isn’t there? What do you do with the offender who persistently refuses to comply with non-custodial orders of the court? Experienced lawyers in the room will have seen many of these offenders. Is there a place for short-term custodial sentences?

Of course, the argument is that they do not work. What do we mean by "they work"? Is it, for instance, that they work because we’ve taken the offenders off the streets for a short period of time? That could be an argument. Or is it really about rehabilitation? We know that the Prison Service has difficulty in providing adequate programmes when they are in prison for a short term. One of the problems is the churn. That is this constant coming in every day and going out every day. Even if the prison has a three or four-week constructive programme, actually getting somebody to do the whole of that programme is difficult.

We had a suggestion from one of our colleagues in terms of those people who fail to comply with the non-custodials. Should it be that we have, say, a four-week intensive programme which begins the first Monday of every month, so that we can put a block of those people not necessarily in a custodial establishment but they could monitored by electronic monitoring? There could be a punishment element there. There could be a curfew. The attendance could be electronically monitored and there is an intensive programme that gets them to tackle the underlying causes of why they are failing to comply and why they’re offending. Could we look at early intervention programmes? I think we don’t do that. We often fine at an early stage-the first or second offence of shoplifting, for instance. There is a reason for it. Should we tackle that reason immediately? Maybe we could then make better use of short-term custodial sentences where they are appropriate.

The other issue is that a lot of people-public and colleagues-will say, "Well, the clang of the prison door is a salutary lesson as they go in." I think some people will have heard me say that sometimes I am more concerned with the clang of the prison door at the other end, when they are put out on to Hornby Road in Liverpool with a sum of money in their hands and no actual through-care programme. We need to look at it in a broad view. To just say short-term custodials don’t work without looking at all the other issues is something we have to take into account.

If we are saying, "All right, let’s use intensive alternatives to custody", they are challenging. I don’t know if any of you have seen any of these programmes, but you will know that in those programmes they have to attend two or three days a week. For many of the offenders that you will have met in your court or represented that is a very difficult task for them.

Q19 Chair: We have had offenders in front of us who said they found it so arduous that they committed offences to get back inside again.

John Thornhill: Yes. To be fair, there was a gentleman who stood in front of me a couple of weeks ago and said, "Just send me back, Sir. At least I’ll get my three square meals a day there and I’ll have structure in my life." It is always a balancing act. Therefore just to say, "That doesn’t work"-it will work in certain contexts. Those intensive alternatives to custody are strong, are challenging, are effective, as we know, but the plug is going to be pulled on them next year and that is our concern. If you are going to go to non-custodials we have to have the funding and the variety of programmes available to us as sentencers. I am sorry, I interrupted you; I apologise.

Yasmin Qureshi: No, it is fine. Please finish.

Chair: We need the questioning to move on a little.

Q20 Yasmin Qureshi: Do you think the new sentencing guidelines will allow more consistency in decision making to take place?

John Thornhill: The association will say the reason why we introduced guidelines 50 and 20 years ago was to ensure that there was consistency in the approach to sentencing. I think that is the most important issue. For instance, representatives of defendants, the public and victims will see that there is a structure, and that across the country similar offences will be tackled in the same way, but I do not believe it is right to try to ensure uniformity of sentence. I think that is the important issue.

Q21 Yasmin Qureshi: Talking about the public aspect of it, do you think the sentencing should take into account the issue of public confidence in sentencing, or should that not really be an issue for magistrates to take into account?

John Thornhill: There has to be public confidence in the justice system, absolutely. There has to be confidence, therefore, in sentencing. The difficulty is that those of us in this room who have been in courts know that individual sentences need to be crafted for the individual. That is the focus of these particular guidelines-that it matches the harm, the culpability and all the other factors. We have a programme called Local Crime: Community Sentence, which the association has developed, as well as our magistrates in the community programme, where magistrates go out to the public. In Local Crime: Community Sentence, magistrates and probation go out. It is fascinating to see that in the second one you give them a press cutting-"Lock them up, throw away the key" is a general view. But once you start talking about the effectiveness and the strength of, say, community sentences, a significant number of the public change their minds. The analysis that has been done in a review of this programme by King’s College London shows that a good 54% will change their mind and recognise the value of community penalty. Instilling information in the public is vital.

Chair: I would like to move on quite quickly if I could. I move to Helen Grant.

Q22 Mrs Grant: My questions are for the whole panel, if we could start with Diana please. I want to ask about the impact of sentencing on victims. I would like to know what effect you think imposing a sentence for assault on a particular offender has on a victim. Is there a big difference perhaps if the victim has had an intimate relationship with the perpetrator, whether the victim has been assaulted by someone during his or her employment or whether the victim is simply a man or woman in the street?

Diana Barran: I think that there are real differences where someone has been in an intimate relationship or has some family or other link, the most simple being obviously their ongoing safety. The impact of sentencing will have a wholly different implication for someone you live with, have lived with or might live with again, and who definitely knows where you live even if you don’t still live with them, than a stranger assault, for argument’s sake.

The other key implication relates to the use of fines. The panel will be well aware that when fines are used in cases of domestic assaults, all too often the person who suffers is actually the victim or, even more seriously perhaps, the children. I think those need to be an exception-if they have to be there at all.

Javed Khan: From Victim Support’s point of view I would agree with that, but I think I would make a more fundamental point. The millions of victims that we come into contact with every year tell us clearly that they really don’t understand sentencing well enough, or it isn’t explained to them with any great importance. These guidelines are a good example, I think, of where a decent attempt has been made to explain this much better to Joe Public. From our point of view, it still reads like lawyers speaking to lawyers, and is impenetrable to most members of the public. In that sense it hasn’t achieved what it’s meant to achieve, and more work needs to be done.

If you follow that through in terms of answering your question, victims just don’t understand the logic behind sentencing. Therefore, that affects and damages their confidence in the criminal justice system and the sentencing approach in general. They tell us many things, and we are conducting more and more research. In a few weeks’ time we will be able to publish this, and you might find it helpful if we send it to you.

Chair: We would be glad to see that.

Javed Khan: Some of the headlines to date are that victims generally tell us they don’t understand sentencing. They want justice to be done of course, like everybody else, but they want to be kept informed of the progress of the case that they are involved in. That doesn’t always happen. They believe that punishment and public protection are the main purposes of sentencing, so no surprise there, but they also don’t want offenders to reoffend. They want everything possible done to stop that reoffending. They believe that custodial sentences are not the only or most effective punishment, and cost should not be the only issue in individual sentencing. That is a really important point that they are putting across to us.

Some don’t like short sentencing. They don’t like it because they think that the sentence needs to reflect the severity of the crime, and they don’t think it always does, or if it hasn’t done then it hasn’t been explained to them. A common example we often hear is that somebody is sentenced to eight years in prison, but nobody explains to them that actually in practice that might only mean four years with a licence order afterwards. That is never explained to the victims or, indeed, some of the witnesses. Those are some of the general headlines that are coming out.

Q23 Mrs Grant: That is helpful, thank you. John, did you want to briefly comment?

John Thornhill: I would agree with both my colleagues. There is a need to explain sentencing more carefully. I think maybe we have a need in the court, if the victim is in the court-that is often the problem; we don’t have the victim in the court-to explain why the sentence that we are imposing balances out the need to punish, balances out the need for rehabilitation or protection of the public where necessary. The sentence will have done that, but it is the issue of then translating that sentence from the Bench to the public sitting in the gallery, if the public are there, and particularly the victim.

Q24 Mrs Grant: These guidelines propose more severity where the victim is vulnerable. Again, this is a question for everyone on the panel. What is your definition of a vulnerable victim, because certainly in the case of domestic violence usually there is an imbalance in the relationship in most bad DV cases? Does that mean all domestic violence victims are vulnerable? Diana, please.

Diana Barran: I am not sure that all domestic violence victims are vulnerable. I think it is more helpful to have some criteria that you would apply consistently. It may well be that a higher percentage are, but I’m not sure that all are. Clearly issues in relation to vulnerability would include personal issues such as drug and alcohol problems, disability, etc., and external issues such as financial independence, security of accommodation and cultural norms. Those would be some of the things that I think could be taken into account in looking at vulnerability.

Javed Khan: I think the only way to address this issue is to look at the use, or often the lack of use, of victim personal statements in sentencing. We would strongly argue that this needs a fresh focus on behalf of the criminal justice system, and perhaps Victim Support has a role to play in that as well which we are interested in looking at.

The victim personal statements are very infrequently used. Less than 50% of victims are even given a chance to explain the impact that the crime has had on them. I think if we were to look at that in a much more focused way, it might help answer the question that you are talking about. There are also huge regional variations in how they are used. At the moment less than 50% on average get the chance, or are even offered the chance, to present their view of what impact the crime has had on them. I think that is the crux of the challenge that you’re trying to guide us towards.

John Thornhill: I would agree that certainly in terms of the victim personal statements, very often magistrates say, "Has a victim personal statement been taken on this occasion? Is it available to the court?" Nine times out of 10 the answer is, "No, it hasn’t been taken", and sometimes if it has, it is not available to the court. I think that is a real issue. These are factors, again, that we build in and weigh in crafting the sentence.

In relation to vulnerability, I think the issue-I would agree with Diana-is that it does vary from one particular case to the next. This is the problem with guidelines: they cannot ever be tramlines. It must be down to the individual sentencer to measure the level of vulnerability on factors provided to them. That is something on which I think many magistrates would say, "We are often not given sufficient information to make that decision." It is not about victim personal statements at this stage but about the relationships between the offender and the victim. I think that is something that needs to come into play.

Q25 Mrs Grant: A last question if I may, but a very quick one. How are fines and community sentences for violent offences explained to victims, offenders and the general public?

John Thornhill: If we are looking at fines, for instance, we will very rarely have the victim in court because it will have been considered a low-level offence. The victim will not be there so it is never explained. In most magistrates’ courts nowadays we very rarely see members of the public, to be fair, and only in rural areas do we see members of the media. I think there has to be an explanation of why a fine has been imposed in these circumstances: a first offence or a minor assault in the totality or the continuum of assaults that we would deal with.

Javed Khan: All I would add to that is I think that exemplifies the challenge we have. If we really want to put victims at the heart of the criminal justice system, and we believe that is important as the Government have been speaking and we welcome that, there is a really good example of how important it is to convey the sentencing outcome and the reasons for it to victims so that they can have confidence in the system.

Diana Barran: Can I just add one tiny point in terms of fines and community orders? I am not sure whether it ties in exactly here, but one of the experiences for victims of domestic abuse is conflicting orders from the family courts and the sentences in the criminal courts. That is a very serious issue around, particularly, the safety of children. Being aware of what is going on in the family courts in coming to sentencing decisions is, I think, crucial.

Q26 Chair: Conflicting in what sense? Can you clarify that?

Diana Barran: Particularly around contact with children.

Q27 Chair: Contact being created or offered by the family court?

Diana Barran: Actually, more often the other way round: the family court saying that contact with children can only be supervised or indirect, for example, and the criminal sentencer not taking that into account.

Q28 Chris Evans: The Daily Express, when the guidelines were published, carried the headline: "Violent thugs must not be sent to jail, say top judges. Thousands of yobs who carry out violent assaults will be allowed to walk free from court", while the bastion of liberalism in this country, the Daily Mail, said: "Send fewer thugs to jail and save £20m a year, judges and JPs told." Would you agree that these headlines are often the only information people have about the guidelines? If so, how does that affect public confidence and what can be done to address this? This is for all three of you.

John Thornhill: You are absolutely right. This is always the problem: the judiciary are tried by the media. The opportunity to explain the decisions and the background for those decisions is just not there. That is the reason, as I said, why we’ve got the three community engagement programmes, because we do believe that certainly at our level it is right to go out and talk to members of the public. We would welcome greater opportunities to do that. We believe that when we have that opportunity members of the public do understand. They may not necessarily always agree, but at least then the disagreement is there in an informed situation, and they are informed. We do have a responsibility, certainly at our level in the courts, to go out and explain how we reach those sentences.

In most cases what we do is to take out sentencing examples and let those we talk to explain them. We’ve always tried to explain this to the media, but we have to recognise that the majority of the work that is done in the courts, certainly by the judiciary, is not attractive news, because they want to sell papers. But that is no reason why we shouldn’t make every attempt to redress those imbalances because, as you rightly say, that is what the public read and that is what the public see sentencing is about.

Javed Khan: I think it is a really good example. Touching on what I said earlier, given the convoluted language that is used to explain sentencing, and often not explained at all to the victims and the witnesses, it is not surprising that they turn to the media headlines. Given the readership of those newspapers, that is the only place where they get a simplified-often over-simplified-assessment of what has happened within the criminal justice system, so it is no surprise. Just to reinforce the point, if we really want victims to have confidence in the system, we’ve got to explain it in a way and in a language that they understand, recognising the linguistic challenges for the people that we are talking about and the cultural differences in language norms. All these factors have to be taken into consideration.

Q29 Chair: I want to quote you an interesting piece of evidence from National Pubwatch: "It’s not necessarily the length of a sentence that will improve public confidence but the feeling that the offence has been treated seriously and that the offender has had to face up to their responsibilities, whatever the final sanction."

John Thornhill: I think that comes back to the explanation that is given for the sentence, as you’ve rightly said, Javed. Those explanations will be given in court in the majority of cases. Of course, the media is not there to report them. I think that is the real difficulty. That is a gap that we have-to ensure that we explain to the public what it is we are doing. How we do that is not easy.

Q30 Chris Evans: Obviously there is a big gap between media headlines, what the general public think and what those who have been through the system themselves think. Are there massive differences-I am making an assumption here-between people who are reading those headlines, who would think, "This is across the board", whereas those who have been through the system and been a victim of an assault would think, "It’s not really like that"? Could you elaborate further on that point?

Javed Khan: It is difficult to answer that in any exact science type of answer. What we do know is that those victims that have been supported by Victim Support, by and large, have much more confidence in the criminal justice system, and in the work of the police in particular, because of the support they’ve had. That suggests to us that alternative approaches to explaining what is going on within the process of the court case have a massive impact on the opinion that they have rather than simply being left to appearing at the court-with great respect to everybody and all the work they have done. Victim Support uses 6,000 trained volunteers up and down the country and perhaps that is the crux of what we are talking about here. Maybe in terms of explaining the sentencing challenge, to offer a solution, Victim Support needs to get more involved in helping explain, and we train our volunteers to play that role in addition to everything else that they do.

Q31 Chris Evans: Ms Barran, seeing headlines like that, especially on domestic violence, do you think this is affecting people who are coming forward to report those types of crimes?

Diana Barran: There is obviously a risk of that, but I think that we can head off some of that risk by the kind of specialist support that is offered to victims of abuse. We need to think in terms of a kind of pincer movement. We need specialist support from agencies like Victim Support and from the independent domestic violence advisers we train, who can really explain in detail to a victim what’s really going on. Then we want the universal services where victims might identify themselves, which is everything from A&E to the GP. We just need to get that person to connect with the specialists. We need to link in better.

Q32 Chris Evans: One last question: is the media damaging to your work?

John Thornhill: That is a very interesting question. It is certainly damaging in the context that it may give the public an impression of the work that’s done in the courts that is very different from what is actually happening in the courts, yes. But we are never going to get a media that will fully explain what it is we actually do in the courts and the effectiveness of what we do. What we have to do is work through those who come into contact with the courts so that their experience as victims or witnesses, or families of victims and witnesses, is, "Well, yes, we don’t necessarily agree but at least the story was listened to; at least there was a reasoned argument as to why that decision was taken." I think that is the best we can do. Then there is work with the community engagement programmes that the association already has, and hopefully we would like more support to develop those.

You are absolutely right: the media is always damaging when it doesn’t tell the full story and doesn’t present both sides of the picture, because it gives an imbalanced view of what is happening. We have to recognise within the justice system that that is one of the facts of life that we live with, and therefore we must find ways of counterbalancing that. We are certainly open from our association and our perspective to wider engagement with the public and indeed with our colleagues in organisations who work with those who come into our courts. It does not in any way impinge on our judicial independence or our judicial discretion. We are quite capable of managing both those in the context of talking. It seems to me that we need to be more open so that we have a different level of transparency-that there is transparency not just about the actual decision but about the process leading up to that decision.

Javed Khan: Mr Chairman, I would strongly support John’s comments there. I think they would be greatly welcomed by victims up and down the country as well. We must add a tinge of realism to the challenge that we face with supporting victims, to understand the reality of what goes on within sentencing and not just rely on the headlines. Of the billions of pounds that we currently spend on the criminal justice system, less than a penny in the pound is actually directed towards victims and witnesses. It really is the crumbs at the table that we dedicate towards this end of the challenge, yet there are millions of people who are walking away from the criminal justice system with a lack of confidence in the services that we are collectively providing.

Q33 Chair: This document is described expressly as a "Professional Consultation". There is another version of it-a shorter public consultation paper. Do you think you can apply the same concept to the guidelines themselves at the end of the day, or would it be misleading and dangerous to do so?

John Thornhill: I think there is a danger that if we simplify the guidelines too much we then leave out what are important elements, and the public then get a different view of sentencing from the view that the sentencer has in terms of the guidelines. It is a balance. We were talking about this before we came in, weren’t we? These are difficult documents for the public. We accept that. We would be concerned that if they were too watered down it might actually create less confidence in the justice system than if we were to try to explain them in a simple way. I think we would be concerned about having two sets of guidelines because then it is, "Which one are they actually working to in the courtroom?" It might exclude very important factors that are relevant to the decision-making process on the particular day for that particular offender.

Q34 Mr Llwyd: But it is essential that you have a certain discretion at the end of the day, isn’t it?

John Thornhill: Absolutely, yes.

Mr Llwyd: I remember when unit fines were the big thing.

John Thornhill: Don’t we just?

Q35 Mr Llwyd: I remember a chap in Dolgellau Magistrates who was charged with a minor careless driving. The calculator came in to work out what he was being fined. It was just incredible.

John Thornhill: I will share that concern, because it was £1,900 or something 20-odd years ago. We know what that means in current money. I sat there and I think my jaw actually bounced off the desk, I might say. I won’t tell you what my colleagues and I did because that might put me in a difficult position, but I think you appreciate the point that both Mr Llwyd and I are making. That discretion must be there.

Diana Barran: I just wanted to add on the point about two sets of guidelines. Clearly one doesn’t want to have two sets of guidelines, but I think what you are also hearing very clearly is that this is potentially an opportunity to explain the principles underlying a single set of guidelines to the general public in language that makes sense to them. I would imagine this is an opportunity to do it. As long as there is complete transparency, so that if somebody has the interest and wants to read the whole deal it doesn’t feel like a secret document just for those involved in the criminal justice system, I think that is a healthy thing to do.

I suppose for me the only bit that might be amplified-I don’t know whether for magistrates and judges, but certainly for the public-is section seven, the reasons for sentencing, giving a bit more human common-sense interpretation of a sentence-the balance between punishment, rehabilitation and safety of the victim, etc. I think if that could be pulled out a little bit it would be something that would be useful for the public to have.

Chair: Thank you very much indeed. We are very grateful to all three of you for the help you have given us this morning.