Annex A
Letter from the Chair of the Justice
Committee, Rt Hon Sir Alan Beith MP, to Lord Justice Treacy, Chairman
of the Sentencing Council, 9 July 2014
The Justice Committee welcomes the opportunity
to consider the draft Theft Offences Guideline, and thanks the
Sentencing Council for its work in producing the draft Guideline
and liaising with us in our scrutiny of it in our role as statutory
consultee under section 120 of the Coroners and Justice Act 2009.
In particular we are grateful to the Council for its agreement
that, as with the previous sets of draft guidelines we have considered,
we could submit our views after the conclusion of the formal consultation
period.
The draft Guideline is split into separate
guidelines for different types of theft: (i) Theft from a shop
or stall, (ii) General theft, (iii) Abstracting electricity, (iv)
Making off without payment, (v) Handling stolen goods and (vi)
Going equipped for theft or burglary. In scrutinising the draft
guidelines we have focused on four specific issues, which appears
to us to be the most appropriate and effective way the Committee
can materially assist the Council's consultation process.
As you know, we held a seminar on 1 July 2014
to discuss the guidelines with representatives from organisations
and institutions with an interest in this area. I am grateful
to Elfyn Llwyd MP for chairing the seminar on this occasion. We
are also grateful to HH Judge Sarah Munro QC for representing
the Sentencing Council at the seminar, and to our other invitees
for their assistance in our scrutiny of the guidelines and agreeing
to provide us with copies of their submissions to the Sentencing
Council. We do not repeat arguments contained in those submissions
here, unless they were discussed in depth in the seminar, as they
will already have been considered by the Council.
The two-stage approach to the assessment
of harm
As with the Fraud Sentencing Guideline, to
which this draft Guideline is closely related, and in line with
the Council's overarching approach to sentencing, the harm caused
to the victim of the theft as well as the financial loss incurred
are given greater weight. Again, we welcome this change in approach
from that of the Council's predecessor body: it puts the impact
on victims at the heart of sentencing decisions, where it should
be.
Financial categories
The financial categories set out at Harm A
in the two-stage approach to the assessment of harm are relatively
broad, reflecting, as the Sentencing Council have noted, the variability
of financial loss caused by different offences of theft. The individual
Guideline 'Theft From a Shop or Stall' has, as Category 3, its
lowest category of financial loss 'up to £250' with a starting
point of £125. We understand thiscategory would cover around
90% of all shop theft. We heard some criticism of this approach,
firstly, that it could give a signal to police, prosecutors and
victims that thefts under £125 do not matter when they may
have a significant, and cumulative, effect on a business and,
secondly, that, the category was so broad it banded very low-value
offences with those of a distinctly higher value and harm leading
to disproportionate sentencing for offenders at the very bottom
of the category. An examination of the draft guideline shows that
sentencing for a Category 3 offence, together with the lowest
level of culpability, ranges from an absolute discharge up to
a low level community order. It is difficult to conceive of a
lower sentencing range, particularly given the problems offenders
may have in paying fines, which would be required if a financial
harm 'Category 4' were added to the Guideline. In our view, the
draft Guideline gives sentencers appropriate flexibility in sentencing
offenders committing low-value thefts.
Aggravating and mitigating factors
The 'General Theft' guideline includes
'blame placed on others' as an aggravating factor. We understand
this to have been included with an offence of theft from an employer
in mind, where the guilty party seeks to focus suspicion on an
innocent party within the workplace. In our view, this factor
could usefully be added to the other guidelines, particularly
'Theft from a shop or stall' and 'Handling stolen goods' where
it is easy to imagine scenarios in which blame could be placed
on an innocent party who suffered reputational and other harm
as a result, in effect creating another victim of the original
offence.
We note the difficulty in giving guidance
to sentencers on the correct approach to "recent", "persistent"
and otherwise relevant offending. Those committing theft, particularly
the offences often referred to as 'shoplifting', frequently have
extensive previous convictions of a similar kind. We agree that
this is an area where the variability of circumstances means suggesting
a time limit, such as convictions within the last six months,
or a specific number of convictions that would constitute an aggravating
factor, would overly fetter the discretion of sentencers and flexibility
in this area is therefore desirable. We are otherwise in agreement
with the suggested aggravating and mitigating factors across all
the separate guidelines but would suggest some areas in which
clarification would be welcome.
Short custodial sentences
Those serving a prison sentence for theft constitute
a very high number of prisoners serving short custodial sentences.
Bearing in mind Parliament's approach to custodial sentencing
as set out in the Criminal Justice Act 2003, the Sentencing Council
usually avoid starting points of less than six months custody.
However, given that the average custodial sentence served for
those convicted of theft is eight weeks, such a guideline would
very significantly alter sentencing for theft.
Short custodial sentences are generally undesirable.
They cost the taxpayer a significant sum and serve little rehabilitative
purpose while potentially causing immense disruption in an offender's
life. However, custodial sentences for low-value and low-impact
offences are only handed down when all other sentencing options
have been exhausted, sometimes on repeat occasions, as the draft
Guideline makes clear. Removing them from sentencing for theft
would leave sentencers with nowhere to go when all other avenues
have been exhausted. In addition, the prospect of prison can carry
a deterrent effect when other approaches have failed and, in the
case of offenders who steal low value items but who target the
same victim on repeat occasions, give the victim some respite.
We believe short custodial sentences need to remain available
for theft, while cautioning that sentencers must be sure that
they have no other option.
We would, however, repeat our previous warning
that the introduction of supervision for under 12 month sentences
should not be seen as a reason to impose a custodial sentence,
where a community sentence would be adequate, merely as a way
of getting an offender access to supervision.
Restorative Justice
The draft Guideline makes no mention
of Restorative Justice, an area in which the Committee takes a
close interest. Restorative Justice, when victim-led and appropriately
undertaken, has significant benefits for both the offender and,
more importantly, those who have been the subject of crime. While
not a sentence in itself, an exercise in Restorative Justice may
influence a sentencer to look more leniently on an offender given
the mitigation of the harm caused to the victim a successful session
will have. Unfortunately, access to Restorative Justice across
the country is in its early stages. We are aware, however, of
very successful local initiatives which have made a real difference
to their communities. We would like, therefore, a prompt to appear
at the very head of the Guideline, encouraging sentencers to consider
whether Restorative Justice is available and, as importantly,
whether the victim is willing to participate.
We wish the Sentencing Council well
in its deliberations on the Guideline and look forward to seeing
the results of those deliberations on publication of the definitive
Guideline.
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