To be published as HC 1711 -i

House of COMMONS



Justice Committee

The Annual Report of the Sentencing Council

Tuesday 13 December 2011

Lord Justice Leveson

Evidence heard in Public Questions 1 - 65



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Oral Evidence

Taken before the Justice Committee

on Tuesday 13 December 2011

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Jeremy Corbyn

Nick de Bois

Ben Gummer

Mr Elfyn Llwyd

Yasmin Qureshi

Karl Turner


Examination of Witness

Witness: Lord Justice Leveson, Chairman, Sentencing Council, gave evidence.

Q1 Chairman: We are very glad to welcome you back again, Sir Brian. You have other rather public things that you are engaged with at the moment.

Lord Justice Leveson: That is certainly true.

Q2 Chair: We are following them with some interest, but today we are looking at one of your day jobs, which is on the Sentencing Council. We have looked at the Annual Report. We will also ask you something about the Ministry of Justice, with which you deal on a day-to-day basis, because we are also carrying out an inquiry into how the Ministry of Justice functions and how well equipped it is to do its job.

In the course of the last year and a half , what have you learned about sentencing guidelines and their d evelopment, and w ill the first year and a half have brought lessons which affect what you do from now on?

Lord Justice Leveson: Most certainly what we have learned will define, and has defined, how we have approached the task of creating guidelines. We did not walk into this with a blank sheet. The Sentencing Advisory Panel and the Sentencing Guidelines Council came before us, having done a lot of work on guidelines across a range of areas. One of our most important decisions was taken at the very start, when we thought that we would revisit the way in which guidelines were presented.

If you look at the guidelines issued by the SGC, for which I have a very great respect, there was a lot of text and a series of boxes, which tended to be activity-based: for example, in relation to assault, it described circumstances and prescribed or advised upon penalties. We were concerned that far too much attention was being paid to what was in the box and not enough to the text that surrounded the box and defined more accurately the circumstances in which the guidelines provided advice. We started from scratch to think about culpability and harm, which are the two statutory criteria, and to try to encapsulate guidelines within a much more confined space, so that in relation to each offence on assault-and indeed we have tried in relation to all the others-they are within two or three sides of paper. In that way, we identify the approach for judges for sentencing, for those who advise offenders, and also for the public. I believe that that approach, which we have followed through in each of the other guidelines we have created, has been extremely valuable. That is the first thing.

The second thing is that, although our statutory remit is not dissimilar to that which bound the Sentencing Guidelines Council, we have approached it rather differently in another way. I have taken the view that public confidence is an extremely important feature to which not enough attention has been paid. The result is that over the first 18 months of the work of the Council, we have done a great deal, or tried to do a great deal, to improve public understanding of the approach to sentencing. That has meant rather more attention to the media than I am used to in my other life.

Q3 Chair: Your previous other life rather than your present other life.

Lord Justice Leveson: My previous other life-all right. I recognise that the radio and television, which are not media with which I am very familiar, have been a very important part in providing the message. The upshot of that has been that when we have consulted on guidelines, we have tried to engage a much wider audience, and we have done that in three ways.

First of all, we have produced much more broadly-based consultation papers. We have focused a consultation paper on professionals, in which your Committee very firmly falls; we have focused a consultation on the public, so that those who are not engaged in the nitty-gritty of criminal justice can provide input; and we have also put a consultation online. We have been very pleased with the response online to our consultation papers as a different way of gauging public opinion. That is the first thing we have done.

Secondly, we have tried to involve the media by going on the radio, having briefings with journalists and going and doing media events or other events with the public.

Thirdly, we have used some research tools such as YouGov to seek to obtain public opinion on aspects of our work. All of that has served not only to improve the quality of our output-at least I hope it has-but, just as important, it has allowed a greater explanation of what we are doing and how we are trying to do it, to demystify the whole business of sentencing. That is the second strand of our development.

The third strand, of course, is the Crown Court Sentencing Survey, which has its own issues but which is a very important mechanism to try to learn whether what we are doing is working. It is no good adding two and two and making five, unless you have an answer in the back of the book to tell you that you are not doing the job correctly. I am not saying that the survey tells us whether we are getting it right or not, but it provides a very important feedback opportunity to see whether we are capturing the centre ground and whether judges are satisfied with the terms of the guidelines, which, of course, in one sense our directive must follow in the terms of the statute, but they must provide ultimately for the discretion of the judge in the interests of justice. I do not believe the guidelines are too constraining, but the survey does provide us with valuable feedback.

Q4 Chair: We are going to look at some of those individual issues that you have helpfully flagged up for us. To what extent do the guidelines require or depend on training?

Lord Justice Leveson: There is no doubt at all that we put a lot of effort into training. Whether the guidelines depend upon or require training are slightly different questions. There is no doubt at all that judges need to understand what the guidelines are and how they work, where they are intended to work and what they are not intended to do. They do not drive a particular sentencing decision. The judge or the magistrates who eyeball the defendant have to consider the case of the defendant, but the idea is that the guidelines provide an approach which ought to be followed to provide consistency of approach across the system. The consistency of approach is something that we have talked about before.

How do we do that? The Judicial College-previously called the Judicial Studies Board-has taken the issue of training very much on board. We now have a liaison magistrate within every single bench of magistrates. CrimeLine, the online resource for criminal practitioners, has also taken on board the issue of training. Members of the Sentencing Council Secretariat have gone round and done training events as and when requested. We have taken it very seriously.

It is not an accident that four members of the Council themselves have had a lot of experience in judicial training. Mr Justice Globe was on the Criminal Committee of the JSB; Anne Arnold is the district judge at the magistrates court involved in training; Katharine Rainsford has trained bench chairs; and Judge Alistair McCreath is similarly heavily involved in judicial training. We are absolutely on top of it and doing what we can to ensure that judges and magistrates understand the guidelines that we produce.

I hope that it will become easier as time passes. The first great problem was to change the approach, which was, as I say, activity-based, taking an adult offender of previous good character, whereas we now make no assumptions about character at all. That, having been a big exercise for assault, I hope is becoming easier as we develop more and more guidelines.

Q5 Chair: After the riots in August, although the consultation had closed, you took the decision to amend the burglary guidelines to take account of public disorder. Does that mean you felt that there was a real gap there beforehand?

Lord Justice Leveson: First of all, it is quite interesting that, after the riots, there was very real public interest in whether we were going to do something immediately to affect the sentencing of those who had committed offences of riot or associated offences. That misunderstands our function. We are not in any sense reactive. That is the job of the courts and, indeed, the Court of Appeal Criminal Division, which did issue a judgment dealing with half a dozen riot cases in September, but that was to provide a check on the sentences that had been passed.

We discussed the riots in our September meeting-you are absolutely right, Chairman-after the consultation paper had closed. We felt that there was room to identify the context of public disorder in the guidelines for non-domestic burglary, which we had not previously identified; but it is very important to underline that we were being very non-specific, not least because a riot or disturbance, a public disorder, can take many different forms, from the large-scale disorder that we saw in August to much smaller disorder that we sometimes see, where perhaps the features are rather different. We have identified it as a potentially aggravating feature, but that is not in any sense to prevent the courts from taking the view that the range for ordinary crime does not fit the events which have actually taken place.

That allows me to make a more general point that is relevant to a number of the concerns that I know the Committee has expressed, which is to describe what the guidelines do. If one takes a range of sentences as fitting a bell curve, the guideline is not intended to deal with the most extreme on the right, of serious offending, or the most extreme on the left, which is the very unusual, heavily laden with mitigating circumstances. The interests of justice always permit a judge to go outside the guidelines if it is appropriate to do so. We are trying to capture the middle ground. I think most people would probably say that the sort of riots that we saw in August do not fall within the middle ground at all, but we have reflected the possibility that they may by creating that single aggravating feature.

Q6 Jeremy Corbyn: Lord Justice Leveson, I have two points. While you have frequently used the word "riots", so far as I am aware, no one was charged with riot during the disturbances.

Lord Justice Leveson: No.

Chair: I think I said "riots" as well.

Lord Justice Leveson: It is a shorthand form. Actually, a number of people were charged with incitement to riot; that is right. I do not know whether anybody has been charged with riot as an offence. Public disorder is a much better way of describing it, and it is how we describe it in the guidelines.

Q7 Jeremy Corbyn: The second point I wanted to raise was that, in the light of comments made by Ministers and many others, magistrates and Crown courts put in very severe sentences, often for what would normally be seen as minor misdemeanours, and the implication for many of those young people is that they have sentences or criminal records, which is extremely damaging to their lives for ever, but where do we go from here? If we are routinely to imprison somebody for stealing trainers for three months, or three years in some cases, then is this to be the norm for the future? I am not alone in believing that many of the young people were stupidly, wrongly and naively drawn into a situation that was not of their making, and that one should try to deal with it appropriately, so that the real perpetrators of crime are dealt with accordingly but the peripheral people are dealt with to a lesser extent. The word on the street is, "If you go anywhere near those situations, you get a sentence," so you are all in it together, in that sense, which does not do any good for future criminal justice.

Lord Justice Leveson: Could I unpick several bits of what you have just said? First of all, it is very important to emphasise that political and other pronouncements about how the courts should sentence did not, as far as I understand it, drive a single sentence. In other words, I do not believe there is a judge in this country who would have said, "Because X said do this, that is why I must do it." Judges approach the task of sentencing very much with the concepts of culpability and harm-the statutory framework-in mind and their perception of the public interest. Exactly the same thing happened in the Court of Appeal.

I take the point that you make about criminalising young people and imposing what, on any showing, were severe sentences for offences which, if committed in a different context, would not and shall not in the future receive such condign penalties. The sentences passed following the August disturbances are not indicative of what happens and what will continue to happen for small-scale, commercial burglary. However, I think the view was taken by judges-and, indeed, it is reflected in the decision of the Court of Appeal that analysed those cases-that those who permitted themselves to get caught up in what was large-scale disturbance, whatever you want to call it and however you want to characterise it, had to learn that you got involved in that activity at your peril, and taking advantage of public disorder to commit crime would be seen as extremely serious. It may be that at some stage we will get on to guidelines in relation to public disorder. I am perfectly happy for the Council, at an appropriate time, to pick up that topic, and then how one defines the appropriate levels of sentencing for disorder can be considered.

If one looks at the sentences passed in previous analogous situations, they similarly were severe against the normal run of sentences. I am also very concerned about the impact on the lives of young people who, in moments of stupidity, have done things which they bitterly regret doing. I have no doubt, though, and it is part of the Chief Justice’s judgment, that the message had to go out that the one thing you did in these circumstances, if you did not want to get involved, was turn around and walk away.

Q8 Nick de Bois: Turning to the sentencing surveys briefly, you clearly put a lot of value on them, but it would appear from some of the levels of returns that not all the Crown court judges agree with you. We have seen some rather low response rates in parts of the country, although I accept that the average is around 70%. First of all, is it voluntary to respond to these surveys?

Lord Justice Leveson: Is it voluntary? Yes, but there is some language around all that.

Q9 Nick de Bois: The basic premise is that it is voluntary. If you think that the present levels are not going to improve-you may, and feel free to elaborate on that-should you not be considering making it compulsory if you place so much value on it? Presumably you would know whether the judges do place a value on it but just can’t be bothered to complete them.

Lord Justice Leveson: I think "can’t be bothered" probably is not the right characterisation. There are undeniably some judges who are concerned that their responsibilities should not extend to filling in forms.

Q10 Nick de Bois: It was 70%, though. In Bradford, you only got a 30% return rate.

Lord Justice Leveson: Bradford is quite a difficult example. The recorder of Bradford-the senior resident judge-was extremely ill over a period. I do not know how many full-time as opposed to part-time judges were there and how much effort was put into pressing judges.

Let me explain what I mean. I put value on the survey because it is an important feedback to identify, first of all, whether we think we are getting the guidelines about right and, secondly, to demonstrate the approach to consistency across the country. The Lord Chief Justice takes exactly the same view, and we do put a lot of effort into persuading judges of their value. I hope that as we have now started to produce some results-of course, we could not do that until we got a sufficient number of months, and the Annual Report was delayed so that we could analyse the first six months and include it within the Annual Report-judges will see their increasing value. Some judges find them extremely valuable as an aide mémoire to ensure that they say everything they want to say when passing sentence. Some judges, however, take a different view. I recognise that, and it is a job, I would hope, of persuasion.

Q11 Nick de Bois: What is your benchmark? Can you say that your key performance indicator is that in six months you will have no area submitting less than 70%; otherwise there must come a point when you decide whether it is worth doing them or not?

Lord Justice Leveson: I would be very keen to get it as high as I can, and what I do is this. Where courts are not returning, resident judges get an extremely pleasant letter from me.

Q12 Nick de Bois: That must worry them.

Lord Justice Leveson: I have a number of other potential signatories to letters in my armoury. I have gone to the resident judges; I have sometimes gone to the presiding judges. Don’t get me wrong: in the main, the resident judges, who are the managers of their courts and who are responsible for the administration of their courts, are extremely supportive, almost universally; but there are some judges of an old school who feel that running the court is what they do and this is not part of the job. I believe very firmly that it is, and in these days of increasing financial stringency, when judges have to do more and more with less and less staff, I understand their frustration. I am working at it and I will continue to work at it. Do I have a KPI? No, I do not. I want to get as many judges doing this as I can.

What we do is this. We identify the performers that are not doing as well as other courts. We identify good practice-one could take Wales as an example, where the courts have achieved some remarkably high figures-and we provide information as to how it can be done. We look to see where there is some administrative failure. In one court we found that judges were filling in the forms, but somehow they were not being sent off. There are all sorts of areas where the information can fall between the cracks.

Q13 Nick de Bois: Just to conclude, at the end of the day, you do not have the power to do it; you have to coerce and persuade. That is what I want to understand.

Lord Justice Leveson: Yes, I have to persuade. I do not think I can use the word "coerce". It is moral persuasion.

Q14 Nick de Bois: These are highly paid, respected individuals. If they do not see the value of it, I wish you luck, but I am beginning to worry if you will get the returns you need.

Lord Justice Leveson: I am not displeased with 70%. It is statistically significant. They won’t see the value until they have seen the results.

Q15 Nick de Bois: That is a fair point.

Lord Justice Leveson: I hope that, as the results come through, they will see the value and how they compare to other court centres, not just in returns but in approach to sentences. The idea of the material is to provide areas, and ultimately courts, with information about their sentencing patterns compared with other courts. They can then see the advantage, I hope, but I take the point.

Chair: Do I see a supplementary point from a recorder coming forth?

Q16 Mr Buckland: You do-a reality check. Having filled in the forms, Sir Brian, and sat in Birmingham, which is one of the best examples, it is quite simple: the clerks make sure that the forms are on the file so that you cannot forget to fill them in because it is part of the exercise. Simple bureaucratic administrative measures like that to remind recorders in particular, who perhaps are not in the weekly mindset of doing it, achieve huge results. I was interested to see that Birmingham was the top-placed court centre for the return of those documents.

Lord Justice Leveson: No doubt, in no small measure, as a result of your contribution.

Q17 Mr Buckland: I did fill mine in.

Lord Justice Leveson: It demonstrates that in a very big court centre, it can be done. Nobody said to me that the information is not necessarily valuable. Much more the argument from those who are reluctant has been, "I don’t see why I should do it." That is a job of persuasion. We take on good practice in places such as Birmingham in order to try and persuade those other courts which are doing less well to improve.

Q18 Ben Gummer: Sir Brian, I would like to talk about money. I understand that the Council spends relatively little of it, but it is still an amount. In June, you said to my colleague Elizabeth Truss that the budget for the Council for 2011-12 was £1.62 million. In the report for 2010-11, from what I can make of the totals-there is not a total given, but from adding up the numbers on page 31-it comes to £1,439,000. That would suggest that there is a nigh-on £200,000 increase in the budget between 2010-11 and 2011-12. Does that sound right to you?

Lord Justice Leveson: No. The budget for 2010-11 was originally set at £1.78 million. The budget for 2011-12 is split between administrative expenditure-salaries, training, travel and the like-of £1.7 million and programme expenditure on research and analysis, communications and so on of £0.45 million. That is your £1.62 million. Our budget for 2012-13 is predicted at £1.54 million. For 2013-14 it is £1.58 million, and for 2014-15 it is £1.63 million. We are making savings of £240,000 between 2010-11 and 2012-13, primarily by reducing staff numbers in the office by three posts.

Q19 Ben Gummer: That might be the case, but in your financial report, which I imagine constitutes part of the MoJ’s-

Lord Justice Leveson: No question of accounts.

Q20 Ben Gummer: -that does not seem to be the figure for 2010-11. It might just be something you would want to clarify.

Chair: You can give us a note about this subsequently if that would be helpful.

Lord Justice Leveson: Yes; I would be happier to do that than trying to do this on the hoof. We will deal with it in that way.

Q21 Ben Gummer: I will take the figures because they are itemised for 2010-11 and accept they are the ones that the Council has given and put in the public domain. The office staff cost is £983,000. You claimed in your evidence in December 2010 that there were about 19 people working in the Council, which gives an average salary of about £52,000. That seems rather high for a public body.

Lord Justice Leveson: First of all, I anticipate that salaries will also include that which is paid to members of the Council who are not public servants.

Q22 Ben Gummer: That comes under Council members and advisers’ fees, which is separate.

Lord Justice Leveson: This is why I have to be careful. The other issue one ought to bear in mind is that we do have within the Council probably a higher number than in other departments of comparatively senior staff, because of the expertise that we require. We have economists, statisticians, lawyers-always expensive-as well as policy people. Therefore, I would have thought that, if you looked at the comparatively small staff, we are probably more skewed to senior non-SCS staff than other parts of Government. I am happy to provide the information.

Q23 Ben Gummer: That is a reasonable point. None the less, £983,000, which is 68% of the cost of the Council, as you said in your evidence in 2010, goes on staff, and 15% on analysis and research, with the remainder made up of IT, training and the rest. I understand and know your own commitment to research and how important it is to the Council, but do you not think that the amount spent on research should be a little higher and the amount on staff costs rather lower?

Lord Justice Leveson: Some of the research is actually done by our staff because it is cheaper that way. For example, in-house we did a fair amount of research on drugs-we did some work with Hibiscus on drugs mules in-house. So some of the research we do ourselves. As we have costed getting outside bodies to do research, which of course requires an enormous exercise in fair tendering, as against our doing the work, it is rather more satisfactory to do it ourselves. There is no doubt at all that we are extremely conscious of making the best use of the resource we have because we are very conscious of the constraints on public finance. The balance is not always easy to work out. We try to do it on the basis of best use of money.

Q24 Ben Gummer: I was not casting aspersions on the Council. It might be easier for the public and the Committee to try to understand the costings of the Council if it was split out as administrative costs, so that you would understand what that component was. You could then see whether staff costs would go elsewhere in future years. That is merely an observation.

On the issue of research and its interaction with the Ministry of Justice, it has its own research unit which looks at the effect of sentencing changes on prison places and such like. You do similar research commissioned by the Lord Chancellor. How does your research function with that of the Ministry of Justice?

Lord Justice Leveson: Our research has the advantage that, because we have close links with the judiciary whom we have used to help develop guidelines, they will help us provide material which is probably more difficult for the Ministry to obtain. We were asked by the Lord Chancellor under section 132 of the Act to do an assessment in relation to suspended sentences, and we used our links to do that work. I do not think we were duplicating anything that the Ministry were doing. Our researchers work closely with the analytical team in the Ministry, not least to make sure that our approach is validated and statistically sound. There is a link between our statistician and the expertise within the Ministry to ensure that we are approaching issues appropriately. I have no doubt that we are not duplicating. I would be very concerned if I thought we were doing something that duplicated something that was happening in the Ministry, but I do not think we are.

Q25 Ben Gummer: That is very useful. May I ask a final, naughty question? Why couldn’t the research functions within the Ministry of Justice which inform the decisions made by the Ministry-for instance, in the LASPO Bill, the assessment of the changes judged by the Ministry of the Bill on prison places-be given to the Sentencing Guidelines Council for the Council to give an independent view on the changes made by the Ministry, in much the same way as the analytics function of the Treasury has been given to the OBR?

Lord Justice Leveson: We did some research under section 132, which we were asked to do in relation to suspended sentences.

Q26 Ben Gummer: But why not the full range of the changes made? Would it not fit better with your function?

Lord Justice Leveson: It may do, but, on the other hand, I would be reluctant to accrete more of this work, which inevitably would have to be done at the expense of the preparation of guidelines, which is the primary function of the Council. You have talked about the cost of the Council and the numbers that we employ, but there is a lot to do, and doing section 132 work will inevitably distract from the preparation of guidelines, which is absolutely our job. I am not unwilling to take any request that the Lord Chancellor makes of us extremely seriously. I am happy to do it and then we will publish it independently, but I am concerned about the balance of the work that we are asked to do.

Q27 Jeremy Corbyn: Could you tell us about the effectiveness of the public and behind-the-scenes support that the Ministry of Justice gives you?

Lord Justice Leveson: As you are probably aware, the Lord Chancellor has an observer on the Council. Until the reorganisation, that was Helen Edwards, the director general in charge of crime policy. After I had been consulted, the Lord Chancellor changed Helen Edwards’ responsibilities and gave her a far wider remit. Now, the director of crime policy, Helen Judge, is an observer on the Council, which I personally find very valuable, not only because she comes to all our meetings and provides us with up-to-date information about what is going on in the Ministry, but also because she can take our thinking back to the Ministry and impart that to those who are considering policy issues in the Ministry. I believe that works well. In addition, there are close links-I have mentioned the analytical links-between the Council and the Ministry, also at policy level and between the head of the office, Helen Judge and others. There are good lines of communication which do not impact on our independence. That is absolutely critical for me and for the Council as a whole. I believe it is working well. I have not had a concern about it. If I did have a concern about it, I would not be shy about making that concern very clear.

Q28 Jeremy Corbyn: Have you ever had to make any concerns known to the Ministry of Justice about excessive pressure being put on the Sentencing Council?

Lord Justice Leveson: No. No excessive pressure has been put upon us at all. The Ministry are perfectly able to make their concerns known, and they do. I have no problem about that.

Q29 Jeremy Corbyn: How do they make them known to you?

Lord Justice Leveson: They can make them known informally or formally, actually. To date I think they have been entirely informal.

Q30 Jeremy Corbyn: Were there any informal talks during the period of the sentencing after the disturbances in August?

Lord Justice Leveson: No.

Q31 Jeremy Corbyn: Of no type whatsoever?

Lord Justice Leveson: Not that I know of. You ought to be aware that during the course of August I was not in London.

Q32 Jeremy Corbyn: But there are phones.

Lord Justice Leveson: It was one of those odd times that I was supposed to be on holiday.

Q33 Jeremy Corbyn: So were we all.

Lord Justice Leveson: I am not sure that my wife would have agreed with that. There was no pressure put on the Council in relation to riot sentences.

I will give you an example of interplay between the Council and the Ministry. We were doing some research, as I am sure you are aware, preparing to consult on a guideline for discounts for guilty pleas. Once the Government intimated that they were minded to consider legislating on guilty pleas, my line very clearly was that we must stop and that Parliament took absolute precedence. If Parliament wanted to get involved in the policy of discounts for guilty pleas, that was a matter for Parliament. Nobody suggested we should carry on. It was a decision that I made, which was supported by Council, but we had undertaken some research in relation to guilty pleas and we debated long and hard whether, in accordance with the practice that we adopt, we should publish that research even though we were no longer doing the work. We took the view that we should publish the research, and we did publish it. It was not entirely in keeping with what was then the concern. Nobody told us, "You can’t publish it; you must not publish it." We were asked to consider it carefully and we did consider it carefully, but that is the extent of it.

Q34 Chair: Can I get that right? You were asked to consider it carefully. That sounds like a nice letter, in the terms you used earlier.

Lord Justice Leveson: I am not even sure that it was a letter. Nobody suggested we should not do what we felt it was appropriate to do.

Q35 Chair: I can just envisage the conversation, which begins, "You must of course do what you think to be right. However…."

Lord Justice Leveson: I am not even sure it goes quite that high. Let me make it clear that I am not in any sense critical of the concern that we would be publishing research which impacted on policies which the Government were contemplating. I think that was entirely legitimate. Equally, I believe that what we did was the right thing to do in the circumstances and I was never criticised at all for doing it.

Q36 Jeremy Corbyn: I have two quick points. During the disturbances, because I am interested in this period, did you or the Council at any time have any formal or informal discussions with the Ministry of Justice, the Home Office or the Prime Minister’s Office about what sentences may or may not be meted out by courts?

Lord Justice Leveson: My immediate answer to your question is absolutely not-from my own knowledge, not. I was of course aware of what was going on in the country. My Blackberry never stopped and I responded to all the communications that I received, but none of them were saying that we should do anything and none of them were saying that we ought to respond in some way, not least because we simply could not do it for a very good reason. If we publish a guideline, the guideline is not in force until we have published it. Although the legislation permits us to publish a guideline without consulting, we can do that and so we could have done it, but it was utterly unrealistic to say in mid-August that we should publish a guideline which could then impact on sentencing for riots, because our guideline would only come into force once we had published it. It is not retrospective. The exercise could never be undertaken in the way that you have postulated inferentially in your question.

Q37 Jeremy Corbyn: Are you not intrigued by the similarity of the sentences handed down across the whole country?

Lord Justice Leveson: No, I am not intrigued. I think there are some very good reasons for that. I make it clear, although you are probably aware, that I was a member of the court which sat in the Court of Appeal Criminal Division that dealt with the appeals from the riot sentences, with the Lord Chief Justice and the then Lord Justice Thomas, now President of the Queen’s Bench Division. I know what happened.

A number of cases very quickly came to Manchester Crown court. The recorder of Manchester, His Honour Judge Gilbart QC, did an enormous amount of work and sentenced a number of offenders. He provided a range of sentences across the potential offending spectrum. Those sentencing remarks were published on the judicial website and were picked up very quickly by other resident judges in other courts, all of whom made it clear that they were exercising their own independent judgment but were aware of what Judge Gilbart did.

The Court of Appeal took the view-I am merely recounting what happened and absolutely no more-that Judge Gilbart’s contribution was extremely significant. He had done an enormous amount of work to provide assistance for other judges in the Manchester area. He made it quite clear that he had identified a number of judges in his region who would do the cases coming from Manchester and discussed all the ranges with them to try to ensure a consistency of approach. The Court of Appeal was concerned that first instance judges had to be very careful about setting down guideline-type ranges. That was not a job that the Court of Appeal would do for offences not before it, and there was a limit beyond which first instance judges should go. We were not in any sense undermining the enormous effort he had made. For that reason, electronic communication works even in the law.

Q38 Jeremy Corbyn: It worked in the disturbances as well, didn’t it?

Lord Justice Leveson: Yes. There were sentencing remarks of various judges. There was certainly Judge Gilbart, then Judge Chapple, the resident judge at Inner London Crown court, and other judges added to the material that was available in the public domain about how they were sentencing rioting. Other judges could then read this and make up their own minds. I am not entirely surprised. Consistency is important. You may take the view that they were consistently too high, and that is your prerogative.

Q39 Jeremy Corbyn: I do.

Lord Justice Leveson: That is entirely your right.

Q40 Jeremy Corbyn: Do you not think we are going to pay a social price for this 10, 15 or 20 years down the line?

Chair: That may not be a question you feel obliged to answer.

Lord Justice Leveson: Everybody will be paying a social price, and society has the responsibility of considering the comparative cost of public disorder to businesses, homes and livelihoods, on the one hand, and to those who commit crime on the other. None of this is cost-free.

Q41 Mr Llwyd: I have one peripheral point, Sir Brian. You sat in the Court of Appeal. How many of those cases were varied on appeal?

Lord Justice Leveson: A couple, I think. I cannot remember whether it was two or three. I think they were the handlers, but I have not re-read that decision for the purpose of coming here today.

Q42 Mr Llwyd: I do not mean to put you on the spot. Just as a ballpark figure, of the cases that came to the Court of Appeal, roughly, you say, two or three, perhaps, were varied?

Lord Justice Leveson: I cannot remember. Quite a lot has happened to me since September.

Mr Llwyd: I do read the papers.

Lord Justice Leveson: There were maybe six, seven or eight that were appealed. In the main, the appeals did not succeed.

Q43 Mr Buckland: I want to develop the point you were making about consideration of a guideline looking at credit for guilty pleas. Is the Council going to resume any work on considering that guideline now that it is clear it is not going to be part of any primary legislation?

Lord Justice Leveson: I am sure that the Council will come back to it. I think we will wait to see what ends up on the statute book first. I am sure we will come back to it because it is one of the few areas where, by statute, we are required to look at it, and we shall do so in due course.

Q44 Mr Buckland: You are not able to give us a time scale?

Lord Justice Leveson: No.

Q45 Mr Buckland: You mentioned the media in your opening remarks and the way in which decisions relating to guidelines are portrayed by the media. Perhaps I summarise it unfairly, but you suggested that, certainly before your involvement in the inquiry that we are all familiar with, you were a bit of a media ingénue, and therefore it was a learning process not just for you but for other members of the Council as well in terms of how decisions on guidelines were presented. Clearly, things have changed for you in recent months. You have been at the centre of a very public inquiry with a huge amount of media attention. What lessons are you able to draw upon from your own experiences now that could assist the Sentencing Council in its work in presenting clearly to the media what it is all about and what it is doing?

Lord Justice Leveson: The first point to make is that I am not giving press conferences in relation to the inquiry. What I am doing there is all done in the inquiry room, whereas the engagement with the press for the Sentencing Council is much more interactive. One of the consequences of the inquiry is that I am not going to be engaged in promoting the work of the Council in the same way as I have to date. Other members of the Council will promote the publication of the consultation papers and the guidelines that we are about to produce, as indeed some have already. In relation to drugs, there is Mr Justice Globe and Mr Justice Treacy. We are shortly to issue a consultation paper in relation to dangerous dogs. District Judge Anne Arnold and Magistrate Katharine Rainsford, who have been heavily involved in that, will do that. I am very comfortable that other members of the Council do the work as well.

The immediate impact is that I will not be going on the radio or on television to talk about the Council’s work while this inquiry is going on. That I have had some experience of the media may be one of the reasons that I was asked to do this. That is not for me to have decided.

Q46 Mr Buckland: Perhaps I was being a bit unfair when I described you as an ingénue, so forgive me, Sir Brian. It is clear, isn’t it, that at times some of the headlines relating to the draft guidelines and then the full guidance have been rather frustrating, to say the least, for you and the Council?

Lord Justice Leveson: I think "frustrating" is a very good word. I am extremely concerned when some of the headlines seem to misunderstand the point. I will give you two examples. When the Court of Appeal revisited sentencing for domestic burglary in the case of Saw and others, the decision was widely supported in the press. When we simply reflected Saw in our burglary guideline, it was criticised in the press. We published a draft consultation paper on sentencing for drugs offences, and in particular the example given was supplying offences, where inevitably there are ranges of quantity and responsibility. More than one article focused on the top of the range of quantity suggesting that they could receive the lowest range of sentence, which is simply not realistic. It is just not right; it is a range. Obviously the higher the quantity of drug, inevitably the further along the range the sentence passed. To suggest that we were recommending non-custodial outcomes for those who had substantial quantities of drugs which they were selling simply was to fail to understand what the guideline was doing.

We did not exclude non-custodial sentences for supply. The best example that I could give, and I did give, was somebody who acquired a small quantity of cocaine for themselves and their friends, at the request of all their friends, and shared it out having got the money, so only one person bought it. When it was suggested to me that that was not supply, I was able to say it absolutely is supply. That is what supplying a controlled drug is. There has to be an option, not twice but perhaps the first time, for not sending such a person into custody. I believe that is not an unreasonable outcome, but, once you are supplying drugs for money in quantity, of course you are going to lose your liberty. Again, a non-custodial outcome may be possible for those who have demonstrated a real wish and intention to address their offending behaviour. Then it is perfectly appropriate, as the guideline will make clear, for drugs rehabilitation sentences to be imposed because we want people to stop offending. We do not want to lock people up unnecessarily. Although Mr Corbyn’s eyebrows might raise a little bit-

Jeremy Corbyn: They already have risen.

Lord Justice Leveson: I was conscious of that.

Chair: He is not the Governor of the Bank of England. His eyebrows don’t have the same significance.

Q47 Jeremy Corbyn: Surely, Lord Justice Leveson, there is a point here. You are talking of somebody convicted of supplying cocaine who does not get a custodial sentence. A 16-year-old who inappropriately takes a pair of trainers gets three years in prison. Hang on, where is the justice here? Where is the similarity of sentencing here?

Lord Justice Leveson: I can only go back to the concern that has consistently been expressed over many years, not just recently, about offending in the course of wide-scale public disorder. The courts have always taken a very serious view of it. It may be that we should think about public disorder, consult and think about what we should do about it. I have no problem about doing that, but, if you analyse the decisions not just from this year but from past years, I do not think that you will find the approach has differed. Some people will think that is fair. I recognise that some people will not think it is fair. It is always a balance, and nobody said the task was easy.

Chair: We are still dealing with the media presentation of the Sentencing Council. Yasmin Qureshi has a point to raise.

Q48 Yasmin Qureshi: Sir Brian, I normally never venture to make any observations on judges’ decisions because, on the whole, I think they probably have very good reason for any decision they have come to. As a former practising lawyer, I do not think it is right for me to comment and I think it is wrong for politicians to comment on judges’ decisions.

I want to talk generally about the issue that Jeremy has mentioned about the sentencing differentials. I know that part of the sentencing process is deterrence. I do not want a judge to take a sentencing decision because he thought some politician said a defendant should be more seriously punished, but the media in our country are certainly gunning for most of these people to be dealt with really severely. The media tried to suggest that somehow the whole country wanted everybody to be punished in a really severe form. That may have caused the judges to think the public want it. Surely , proportionality has to come in as part and parcel of our sentencing process. If you have somebody dealing in drugs getting nothing , and some young person who takes a pair of trainer s , even if it is a public order matter, getting such a severe sentence, would you not agree that proportionality is relevant?

Lord Justice Leveson: Consistency of sentencing is extremely important. Of course I would not disagree with the proposition that it is important to ensure that differing crimes are appropriately sentenced not only within the crime itself but also as against other crimes. I believe, as I have said, that the sentencing in relation to the riots, about which it would be inappropriate for me to comment too far, took account of previous Court of Appeal decisions in these types of cases.

I want to say something else as well. Our judiciary prides itself on its independence. I have sat in judicial office for nearly 27 years in part-time or full-time capacity. Some of my decisions have been roundly criticised; some of them have been applauded. I do not take the plaudit any differently from the way in which I take the criticism. The job that I did, and I swore to do, was to try everybody according to the laws and usages of the realm without fear or favour, affection or ill-will. I know you know this.

Q49 Yasmin Qureshi: I am not for one moment disagreeing with that.

Lord Justice Leveson: My point is that, therefore, I have never been affected by what the press have suggested my approach should be, and I do not believe that anybody who holds judicial office in this country would be so affected.

Q50 Yasmin Qureshi: May I just explain that I for one would not cast any doubt on the independence of judges for one minute? I said right from the beginning that I have never been one of those people. What I was trying to say was that the media may have given the impression-

Chair: This is a question, is it?

Yasmin Qureshi: I am trying to clarify what I was saying, which was not that judges were affected by what the media says, or the Daily Mail says, but they may have given the impression that this is what the public want when we are thinking about deterrents to prevent crimes occurring. I am thinking about it in that context. There is nothing to suggest that, because the Daily Mail said people should be treated harshly, the judges decided to do that. I would not suggest that for one minute. That is all I was saying.

Lord Justice Leveson: I take the distinction. I have no doubt that the television images of what happened on our streets will have impacted on judges. Equally, and I think legitimately, community impact statements were prepared by the police-I saw a number of them-to describe the effect of what had happened in different parts of the country. Judges paid attention to that. It is nuanced to ask whether judges, who of course have to be mindful of public opinion, are getting it from what they see themselves or from what is asserted in the press. I would hope and believe that they are sophisticated enough to recognise the difference and to act accordingly. I believe so.

Q51 Mr Llwyd: Sir Brian, in a previous evidence session I asked you whether you thought it would be a useful idea if judges, when sentencing, prepared a précis for publication. Do you recall that question? You have been through a lot recently, I understand.

Lord Justice Leveson: Yes.

Q52 Mr Llwyd: Paraphrasing your response, it was that they have already got enough to do, but what we find now with the disorder cases is that that is exactly what did happen and to good effect.

Lord Justice Leveson: Yes. I would distinguish between two types of case. When I was a trial judge trying a high-profile serious crime, I never sentenced without preparing sentencing remarks, which I then put into the public domain. The great value of that was that they were then impossible to get wrong in the reporting of them, and copies would be available. We have seen many examples of sentencing remarks being published on the judicial website. For a certain number of cases, that is absolutely possible and extremely valuable. My response was aimed at a different sort of case.

Q53 Mr Llwyd: A run-of-the-mill case.

Lord Justice Leveson: A judge has 12 run-of-the-mill pleas-burglary, minor assault and less serious drug offending. He just has to march through them all. The papers are not available, as you well know, until 9.30 in the morning. The judge has to read the pre-sentence report, make sure that he or she has assimilated all the material and formed a view as to sentence, and then has to do it. To require the judge then to write it out in every single case would be extremely burdensome. It might be that Mr Buckland would agree with that, or not. I would be interested to know. It was those cases that I was really addressing. I would very much welcome the ability to publicise what judges actually say as opposed to what it is sometimes said they say.

Q54 Mr Llwyd: That is the point.

Lord Justice Leveson: The greatest misreporting tends to be in cases where a judge has not passed sentence on the basis that it is then reported the sentence reflects. For example, a man is charged with wounding with intent with all sorts of aggravating features. The Crown accept a plea or the jury only convict of unlawful wounding, which clearly means that the intent has not been established and, therefore, many of the bells and whistles of aggravation are not present. The judge passes sentence on the basis of the crime of which the defendant has been convicted, and then it is reported with the bells and whistles as an outrageously and unduly lenient sentence. Had it been on that basis it would have been, but it was not.

What we can do to correct that is incredibly difficult, particularly as the pressures on the press are such that there is now no longer a reporter in every court. The information that the press can obtain about the facts is so much more difficult to obtain. That is an incredibly difficult problem which I am prepared to mention, even though it does cross other issues that I am presently considering.

Q55 Mr Llwyd: Could I take you to another difficult area? Practitioners fully understand the principle of totality of sentencing. The public find it difficult, though. I do not know what can be done about this. You recently had submissions as a Council on this subject of TIC guidelines and also on allocation. Did the responses that you received underline the fact that the public do not seem to grasp what totality of sentencing is about? Are you of the view, which is expressed by some academics, that TICs are open to misuse?

Lord Justice Leveson: There are a couple of questions. First of all, we did not do the same consultation exercise in relation to allocation, TICs and totality, because it is a very esoteric issue that requires a detailed understanding of how the system operates. I do recognise-

Q56 Chair: Perhaps I should just say, as you are talking in abbreviations here, that we are referring to offences "taken into consideration" and we are also talking about concurrent and consecutive sentences.

Lord Justice Leveson: You are absolutely right; thank you.

Q57 Mr Llwyd: I am sorry-I should have made that clear.

Lord Justice Leveson: I should have picked up the same point.

Q58 Mr Llwyd: We understand each other; perhaps the public don’t.

Lord Justice Leveson: And that is part of the problem.

Q59 Mr Llwyd: That is the point; yes, indeed.

Lord Justice Leveson: There is no doubt at all that there is more than one way to structure a sentence. When a judge is sentencing an offender, he is sentencing the offender for the totality of his offending. It can be expressed as x plus x concurrently, or x over two plus x over two consecutively, all to make x. The message that we have to get across is that it is sometimes not possible to disaggregate the total and then to suggest that this particular offending has not been sufficiently penalised because it looks too small compared with the wrong committed. One has to consider the thing in context. There are rules which govern which offences should be sentenced consecutively and which concurrent, which are themselves complex and which is within the consultation paper and the guideline.

"Offences taken into consideration" is a system that has been in existence for over 100 years. There is no doubt that in the past-I hope not any more-it was a system open to abuse. The importance of allowing defendants to admit other offences which have not been brought to book against them is that they avoid the risk of serving a sentence, walking out of prison and then being arrested for something else for which, by some chance, the evidence has then emerged. It permits them to say, "Look, I have done these three burglaries, but I have done four others."

The concern is always that you then get a list and it looks as though it is quite difficult to see how the offender could remember every single one of the offences that they then purport to admit. Judges are very alive to that possibility. It should not be thought that taking offences into consideration does not affect the sentence. It does affect the sentence. It might affect the type of sentence that somebody gets and it might affect the length of the sentence, but the mechanism has been in existence for a very long time. I believe some sort of mechanism must remain to avoid the arrest at the prison gates.

Q60 Mr Llwyd: On the allocation point, Sir Brian, you will know that over the past few years the "either way" offences going up to the Crown courts have increased substantially from 310,000 in 2007 to 353,000 in 2010. Does the Council have any research to explain the increase?

Lord Justice Leveson: It is quite important to identify several things at play here. The first is that at the moment the law requires the magistrates, when deciding whether to accept jurisdiction, to take the prosecution case at its highest. Our consultation paper recommends a different approach, which is to take a balanced view of the case before deciding whether to accept jurisdiction. Taking the case at its highest at the time the matter is put before the magistrates might be when assumptions being made about gravity are subsequently found to be unrealistically high. In that way, I hope and believe that magistrates will be more prepared to accept jurisdiction. It is quite difficult to research it because we do not have a mechanism at the moment where magistrates take a balanced view of the case. They take the case at its highest.

The other driver for sentences going to the Crown court, of course, is elections for trial. It has to be borne in mind that it is the right of any citizen, for the most trivial shoplifting allegation, to elect trial by jury. That is their constitutional right. We know about the numbers of elections for trial. I have little doubt that, if the magistrates take a more balanced view of their decisions to accept summary jurisdiction, there is likely to be an increase in those who then elect trial by jury. There are lots of reasons why somebody might elect trial by jury which might reflect upon a cynical approach to criminal justice because it is undeniably equally true that a large number of the people who elect trial by jury subsequently go on to plead guilty, but it has the great advantage of delaying everything.

I feel that we all have to do as much as we can to make sure that cases are tried at an appropriate level. I would like to move some of our cases from our very expensive and pressed Crown courts to our less expensive but underused magistrates courts. There are constitutional principles embedded into all that which are absolutely not for me to consider.

Q61 Mr Llwyd: Of course over 90% of cases are dealt with by the magistrates anyway, aren’t they?

Lord Justice Leveson: Yes.

Q62 Mr Llwyd: I come at this question not being in any way antipathetic toward Crown court trial. I think it is absolutely fundamental that we retain it. My question was about the very substantial increase, but you have answered the question and we can all speculate about that, I suppose.

Lord Justice Leveson: The one thing we cannot do is measure gravity of offending.

Q63 Mr Buckland: I just want to come back to offences taken into consideration, if I may, Sir Brian. You are quite right to say-and I think you implied this-that some of the awful malpractice belongs to the history books. Is there not a pressure on the system-an incentive, if you like-driven by the need for the police to seek to achieve as many clear-ups as possible with defendants? Is that not leading to the potential misuse of the TIC system, in shorthand, that could cause problems not just for the courts but for the whole system?

Lord Justice Leveson: I cannot deny that it could, but it is an issue to which considerable attention has been paid over recent years. When I was the senior presiding judge, I issued guidance on the care that had to be taken in relation to offences to be considered in order to ensure that the significance of admitting crime was not underplayed in this area. Can I say today that nobody has admitted an offence which they did not actually commit? Of course I cannot. I can only hope that the integrity of the police and the exercise of dialogue between advocate and defendant when these lists of TICs are presented is sufficient to prevent that potential problem arising.

Q64 Mr Buckland: It can be difficult, where a court is presented with a large ream of TICs, for counsel to go through each one in turn, because these documents are often only presented on the day of the hearing and there are constraints of time.

Lord Justice Leveson: I understand, but my practice when I sat at first instance, particularly with big lists, was to say, "It creates a suspicion. What has happened here? How was this done? How has this exercise been gone through? Have you found out? Have you checked with your client?" These were the questions I used to ask.

Q65 Chair: Finally, I want to come back to Mr Llwyd’s earlier point. Two of the declared purposes of sentencing depend upon a degree of public understanding of what is going on. If deterrence has any meaning, then people have to understand that a particular type of sentence is likely to result from committing an offence. If sentencing declares in relative terms those things which society is particularly anxious to prevent and express disapproval of, then there has to be some public understanding of what the sentences mean. Does not that put a particularly strong requirement on the sentencing guidelines process to move toward a system in which people will have a greater understanding of what the offence was, what the sentence for it was, and not have that understanding blurred by things like concurrent sentencing, where it might appear that they decided only to sentence him for one offence and let him off on all the others or, indeed, have taken into consideration a list of offences, which on the face of it do not appear to have affected the sentence?

Lord Justice Leveson: I understand, and the more that can be done to improve public understanding of sentencing the better. I believe that very strongly, as I think I have said consistently before this Committee, but the system has to be practical and it has to cope with a wide variety of different circumstances without, on the one hand, generating sentences that multiply up to unreasonably high levels or, alternatively, causing the system to collapse through an attempt to equate every single offence with a specific sentence. Not for the first time this morning I say, "Nobody said it was easy."

Chair: Sir Brian, thank you very much indeed. Nor is your other task easy and we will watch that with interest too.

Prepared 21st December 2011