The Justice Committee published its Tenth Report of Session 2022–23, Public opinion and understanding of sentencing (HC 305), on 25 October 2023. The Government Response was received on 3 January 2024. The Sentencing Council’s response was recieved 15 January 2024. The responses are published as appendicies to this Special Report.
The Government is grateful to the Justice Select Committee (JSC) for its Report on Public opinion and understanding of sentencing.
1. Our efforts to make sure the justice system is open and transparent are embedded into the working cultures, procedures, and practices of our courts and tribunals, and within our ambitions for reforming the justice system. As outlined in our written evidence of July 2022, His Majesty’s Government is committed to the principle of open justice, commonly defined by the axiom ‘justice must not only be done but must be seen to be done’. This principle is underpinned by Article 6 of the European Convention on Human Rights, and in common law. It is a shared endeavour between the Ministry of Justice (MoJ) (which sets the policy and legislative framework), the judiciary (who carefully balance the need for open justice against ensuring the proper administration of justice), and HM Courts and Tribunals Service (HMCTS) (which administers our courts and tribunals).
2. The Government is continuing in its efforts to rebuild public confidence in the justice system. The publication of judgments and the accessibility of sentencing remarks are key components of the principle of open justice, helping to build understanding and confidence in sentencing. The Sentencing Act 2020 provides a duty on the courts to explain how they have determined the sentence and what the sentence means for the offender. Case law has also emphasised that the key to the nature of sentencing remarks is the use of the terms ‘in ordinary language’ and the Crown Court Compendium (which provides guidance to judges) was updated by Judicial College in 2019 to reflect this.
3. Public opinion absolutely plays a pivotal role in shaping sentencing policy, and we recognise that this demands careful consideration and there are several ways that the Government actively engages on sentencing policy to ensure an inclusive, as well as robust policy making process (highlighted in this response). We are continually exploring ways to enhance current processes including ways to increasing public awareness of the existing avenues for engagement in sentencing policy discussions.
4. The Government’s efforts are complemented by the role of the Sentencing Council,1 an independent non-departmental (arm’s-length) public body, who develop the sentencing guidelines and monitor their use.
The Sentencing Council is also responsible for
a) assessing the impact of guidelines on sentencing practice. The Council may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government, and
b) promoting awareness among the public regarding the realities of sentencing, and publishing information about sentencing practice in magistrates’ courts and the Crown Court.
The Sentencing Council must also:
c) consider the impact on victims of sentencing decisions,
d) monitor the application of the guidelines, and
e) when developing guidelines, promote understanding of, and public confidence in, sentencing and the criminal justice system.
We will outline this work in response to the JSC’s conclusions and recommendations below.
5. The JSC has made seventeen recommendations with some interlinking with others. While the report makes recommendations for the MoJ (and its agency His Majesty’s Courts and Tribunals Service), a significant number of the recommendations are directed at the Sentencing Council. As the Committee will be aware, the Sentencing Council is independent of Government, and we understand that the Council will be responding to the Committee on those recommendations that apply specifically to the Council.
6. The JSC report also makes recommendations for the judiciary. Given the independence of the UK judiciary, is a fundamental principle that ensures the impartiality and autonomy of our legal system, it is right that the judiciary responds to the report separately should the judiciary wish to do so.
7. This is the Government response to the JSC’s conclusions and recommendations. The Government welcomes the Committee’s report and is grateful to all those who gave evidence in preparation of the Report.
8. There needs to be a step-change in the Ministry of Justice, the Attorney General’s Office and the Sentencing Council’s efforts on public legal education. HMCTS should develop a programme which enables secondary school pupils to be able to visit magistrates’ courts and Crown Courts to find out about the criminal justice system and sentencing. Education about criminal justice procedure, including sentencing policy and practice, should be incorporated into the National Curriculum for Citizenship Education. The Sentencing Council should look into producing a Massive Open Online Course (MOOC) on sentencing that could enable members of the public to learn about how sentencing works in England and Wales. Resources on sentencing and criminal justice could also be added to the Oak National Academy Online teaching resources. The Ministry of Justice and the Sentencing Council should consider producing a standalone public-facing website dedicated to providing the public with up-to-date information on sentencing trends in England and Wales. (Paragraph 37)
9. Public education: Since July 2022, television cameras have been allowed into Crown Courts for the first time to broadcast judges’ sentencing remarks. Allowing broadcasting in this way is intended to help the public better understand how our justice system works and see justice being delivered to build trust and confidence in the system. The public can access the Sky News (Courts) YouTube channel where all previous broadcast sentencing remarks are available to view. We have recently expanded the range of judiciary who can be filmed, to include Court of Appeal judges sitting in the Crown Court, who sometimes preside over the most high-profile and serious cases. However, not all sentencing remarks are filmed as applications to film are made by approved media parties and approval is at the discretion of the judiciary. Crown Court broadcasting of sentencing remarks built on the success of live streaming of cases from the Court of Appeal, which began in 2019. Most cases from the Court of Appeal (civil division) are live streamed on the judiciary’s YouTube channel.
10. Education: children and young people: The MoJ Social Mobility Department organise several programmes including facilitating Work Experience placements for students from less privileged backgrounds, most of these take place in courts. HMCTS place around 400 students annually providing them with a wider understanding of the justice and court system as well as building confidence and aspiration. We continue to work closely with HMCTS to develop and deliver interventions that have a positive and lasting impact on those from less privileged backgrounds and we will consider the findings of this report in future conversations and activity.
11. As set out in our written evidence to this inquiry, the MoJ provides publicly available information on sentencing. Gov.uk provides general information on sentencing in a way that is as easy as possible to understand.2 There are pages on going to court, paying fines, appealing a sentence, jury service, tribunals, victim support, being charged with a crime, cautions, community sentences and prison sentences.
12. Press releases3 are issued by the MoJ on all departmental updates relating to sentencing, along with updates via our social media channels on Twitter, Instagram, Facebook and LinkedIn. Social media content might include a digital asset such as an infographic, slideshows, single image, video, or animation. Where possible we aim to include a suggested action for audiences – for example, to watch a video or click on the link to a press notice to learn more. These contain photography, illustrations, moving image or text designed to help audiences easily and quickly understand details of both sentencing in practice and of potential proposals. Content follows best practice for accessibility with consistent use of caption subtitles, voiceovers, and alt-text. Strategically, a key method that is regularly employed to engage audiences and show the impact of sentencing is partnering with authentic and relatable case studies and stakeholders (‘human-led’ storytelling). Each post is tailored for the relevant audience which varies between channels, where some channels require more detail like LinkedIn, others like Twitter need to be condensed. Social media content is also regularly re-published to build awareness amongst followers over time. Additionally, MoJ digital consistently innovates content formats for new features released by channels in order expand reach and engagement (e.g., Instagram Reels) and growing new channels (e.g., YouTube).
13. Explanatory Notes accompany all new sentencing legislation and are published on the relevant Bill page.4 Explanatory Notes explain the change in the law that each part of the Bill would produce and make legislation accessible to readers who may not be legally qualified or have specialised knowledge of the subject area. They can help members of the public to understand the law as it applies to them by putting a bill into context, explaining what is not apparent from the provisions of the bill itself, preventing misconceptions and giving examples of how the bill will operate in practice.
14. The Sentencing Council is considering launching a revised version of ‘You be the Judge’, an interactive, online tool that helps to educate the public about the sentencing process.
15. As regards this recommendation on public education and similar programmes—As the Committee will be aware, the Sentencing Council is independent of Government, and we understand that the Council will be responding to the Committee on the recommendations that apply specifically to the Council.
16. The MoJ should review its statistical releases on sentencing to ensure that they are presented in a format that is easily accessible and relevant to members of the public. Statistical releases should be accompanied by analysis and commentary. The MoJ should also revive the digest of criminal justice statistics and ensure that this reflects trends in sentencing and issues subject to public debate. (Paragraph 42)
17. The quarterly publication of Criminal Justice System Statistics has developed significantly in recent years to continue to address as many users’ needs as possible, in a far more flexible way than would be possible with a lengthy digest—for example, providing more detailed data tools that enable users to self-serve and cut data in a whole variety of ways, and through development of the raw data themselves. We continue to invite user feedback on all our publications and produce our statistics with focus on the code of practice for statistics, with a key focus on user needs. We also publish a comprehensive user guide that takes people through our data, providing commentary alongside our data tables each quarter. We will continue to consider options for broader visual/html-based presentations of our data and are ambitious for continual improvement without overwhelming users.
18. The Sentencing Council should provide independent and impartial analysis on significant trends in sentencing to inform public debate and government policy. (Paragraph 43)
19. As the Committee will be aware, the Sentencing Council is independent of Government, and we understand that the Council will be responding to the Committee on the recommendations that apply specifically to the Council.
20. The Crown Court Sentencing Survey provided a rich dataset on how sentences are determined. It should be possible to use the Common Platform, the new case information system used in the criminal justice system, to produce a valuable dataset on sentencing without imposing additional burdens on the courts and the Sentencing Council. The Ministry of Justice, HMCTS and the Sentencing Council should explore how the Common Platform can be used to produce useful sentencing data that can be presented in a way that is accessible to the public. (Paragraph 48)
21. Common Platform, launched in 2016, is a case progression system that records certain aspects of a criminal court case’s journey. It has been integral to the HMCTS Reform programme, and is currently live in 226 courts, equating to 100% of all criminal courts. The Platform has handled over 536,000 criminal cases since its rollout.
22. As well as providing the functionality for the courts and parts of the wider criminal justice system to administer criminal case progression, it has significantly greater management information capability than preceding IT systems. That capability is and will continue to be central to driving continuous improvement of the effectiveness and efficiency of the system.
23. Provision by all public services of proportionate, comprehensive, and trusted datasets is crucial to ensuring transparency and maintaining trust and confidence of users, taxpayers and the wider public in whose name those services are delivered. This is especially true in the context of the courts and wider justice system. While sentencing remarks are not recorded on the Platform, the MoJ is continuing to explore potential data options that might provide valuable datasets on sentencing.
24. The Sentencing Council and the Ministry of Justice should work together to ensure that the statutory duty to publish information on sentencing in individual courts is fulfilled. We would ask that the Ministry of Justice and the Sentencing Council provide an update on what progress has been made on fulfilling this duty six months after the publication of this report. (Paragraph 50)
25. Section 129 of the Coroners Act places a duty on the Sentencing Council to publish and promote awareness of matters relating to sentencing. The Council will respond to this recommendation.
26. We reiterate our call for all sentencing remarks to be published (subject to the relevant legal restrictions). As a minimum, victims of crime and bereaved families should have ready and free access to sentencing remarks. It should be possible to use voice recording technology to ensure that remarks are recorded at minimal cost. The Victims’ Code should include a right for victims of crime to be provided with the sentencing remarks of the judge without charge. (Paragraph 58)
27. The Ministry of Justice places great importance on the principles of openness and transparency in the criminal justice system, recognising how important it is for victims to be able to engage with criminal proceedings in a way which helps them to recover. Some victims may choose not to attend parts of the trial, including the sentencing hearing, particularly victims of sexual offences, due to the nature of the terrible crimes committed against them.
28. For victims of such offences, the ability to request a full or partial transcript of a trial is helpful and can offer a way to process the outcome.
29. At Commons Report Stage of the Victims and Prisoners Bill, on 4 December 2023, we announced our commitment to running a one-year trial, which will enable victims of rape and other serious sexual offences to request a copy of the judge’s sentencing remarks in the Crown Court, free of charge. This extends the current provision of free sentencing remarks for family members of homicide victims, where the individual is convicted of murder, manslaughter, or offences of causing death on the road.
30. Furthermore, this recommendation refers to using voice recording technology to provide sentencing remarks at a reduced cost. We have looked at how we can lower the costs incurred when obtaining sentencing remarks, and whether technology can be used to bring about such savings. However, this remains a manual process due to the limited accuracy demonstrated by recent voice-to-text AI pilots. Technology will continue to be tested in the future in the hope and expectation that the rapid technological advancement will enable us to improve accuracy rates, and consequently reduce costs, down the line.
31. This recommendation also calls for the Victims’ Code to include a right for all victims of crime to be provided with the sentencing remarks of the judge without charge. We have looked carefully at this matter, including the cost to the taxpayer and trade-offs in diverting resources away from other routes to support victims. Offering free sentencing remarks to all victims of crime has significant financial implications to the taxpayer. We believe that the recently announced trial strikes the right balance between the importance of supporting victims of these horrific crimes in a way which has the most impact, and the burden on the public purse.
32. We can assure the Justice Select Committee that more widely, the Ministry of Justice is working to increase the number of court judgments and tribunal decisions published online—including Sentencing Remarks and Crown Court transcripts. We recently conducted a call for evidence on the matter of open justice and asked the public for their views on this project. A Government response is due to be published next year.
33. The Victims’ Code sets out that victims of crime are entitled to be given information about the outcome of the case and any appeals. The Government should ensure that victims of crime and bereaved families receive tailored information about sentencing during the court process. The Government should amend the Victims’ Code to make clear that victims be entitled to ready access to information about how sentences are determined for offences relevant to the victim’s case, including average sentence lengths. When a sentence is handed down, victims should have ready access to information about how the sentence works. The Government should ensure that where they are eligible, victims of crime and bereaved families should automatically be referred to accurate and clear information about the Unduly Lenient Sentence scheme in a timely fashion. The information should make clear the deadline for making an application under the scheme. These changes should be made before the Victims and Prisoners Bill receives Royal Assent. (Paragraph 65)
34. As noted by the Justice Select Committee, the Victims’ Code currently sets out the information that victims and bereaved families are to be provided with following an offender’s conviction under Right 9. This details the entitlement for victims to be told about the sentence the offender has received and information about the meaning and effect of that sentence by the Witness Care Unit (WCU). This includes the provision of information about the Unduly Lenient Sentencing (ULS) Scheme where appropriate.
35. Where there are questions from a victim that the WCU are unable to answer, victims are entitled to be referred to the Crown Prosecution Service (CPS) for further, more specific information about their case. Bereaved families are eligible for enhanced entitlements under the CPS’s Bereaved Families Scheme and are entitled to a meeting with the CPS after the offender’s conviction to provide a thorough explanation of what this means.
36. We recognise the importance of clear and timely information being given about the ULS Scheme, particularly given the time limits that apply to referrals being made. Once the Victims and Prisoners Bill has received Royal Assent, the MoJ will be publicly consulting on an updated Victims’ Code. As part of that consultation, we will consider the information in the Code itself on the ULS Scheme to ensure it is as clear as possible.
37. The Attorney General’s Office (AGO) clearly advertise the scheme on GOV.UK. According to the AGO, the number of referrals from members of the public has increased, suggesting that awareness of the Scheme has been improving.
38. There are also other avenues for victims to access information about what they can expect from the criminal justice process, and through which they can navigate to specific parts of the process that they are interested in getting more detail on.
39. It is important that offenders understand the sentence they are to serve. Offenders should have ready access to information about the sentencing process, including information about pre-sentence reports at the earliest possible stage. Following sentencing, they should have ready access to information about what their sentence will look like in practice. Offenders, including child defendants, should be given a hard copy of their sentencing remarks. We look forward to the outcome of the pre-sentence reports pilots and encourage the Government to increase the proportion of cases that have access to pre-sentence reports. (Paragraph 71)
40. Section 32 of the Sentencing Act 2020 sets out the position in relation to disclosure of pre-sentence reports. Defendants/ Offenders would generally have access to written pre-sentence reports, except a complete report need not be given where the offender is under 18 and the court is satisfied that disclosure of the report to the offender, or to their parent, or guardian, would likely create a risk of significant harm to the offender.
41. The Probation Service is working to increase both the volume and quality of Pre-Sentence Reports (PSR). This is being tested through a ‘Pathfinder to Improved Pre-Sentence Advice’ (PIPA) project which launched in Autumn 2023 in 9 magistrates’ courts and 7 Crown Courts in the South-Central Probation Service region.
42. The PIPA model will assess the impact that changes to various elements of service delivery can have on driving performance outcomes. These include early identification of cases that may benefit from a PSR; an improved PSR assessment template based on feedback from judges; clearly defined roles for different grades of probation staff in court; and optimal timescales for the completion of reports when cases are adjourned to complete the PSR.
43. The Sentencing Council’s Imposition of community and custodial sentences guideline aims to provide more comprehensive guidance on PSRs, and provides an opportunity to explore other relevant factors.
44. Given the potential importance of public opinion in influencing sentencing policy, the Government should consider adopting a structured engagement plan to gather information on the public’s views on sentencing. Whilst we recognise the value of public polling exercises, we recommend caution be exercised in relying exclusively on the findings of ad hoc polls as an evidence base for sentencing policy decisions. The MoJ should conduct regular, structured, deliberative engagement exercises with members of the public as part of its policy development process. The Sentencing Council should also consider whether it could use structured deliberative engagement exercises as part of its public engagement work and as part of its consultations on draft guidelines, including a full range of offending scenarios, such as violent and sexual offending, if relevant. (Paragraph 81)
45. As referenced in our evidence to the Committee for this inquiry there are several mechanisms by which Ministers use the views of victims, stakeholders and the wider public to help them make decisions and develop sentencing policy. Some of these mechanisms include manifesto commitments; the views of MPs, representing their constituents; victim-focused campaigns; consultations; and via e-petitions on parliament.uk.
46. It is expected that the Sentencing Council will respond separately on this recommendation.
47. The Government should review the statutory purposes of sentencing to consider whether greater emphasis should be placed on achieving justice for the victims of crime and their families. (Paragraph 85)
48. The statutory purposes of sentencing are punishment, crime reduction, reform and rehabilitation, public protection and reparation. When deciding what sentence to impose, courts must consider the circumstances of the case, including the culpability of the offender, the harm they caused or intended to cause, and any aggravating and mitigating factors. The courts also have a statutory duty to follow any relevant sentencing guidelines, developed by the independent Sentencing Council.
49. The courts’ role is to sentence on behalf of the wider public and sentencing must be proportionate to the offence committed. Maintaining this is critical and ensures that no victim is responsible for a sentence imposed and avoids the risk of threats being used if a victim were to be perceived as having an impact on the severity of a sentence.
50. Victims are given an opportunity to be properly involved in the process of sentencing. A victim can make a Victim Personal Statement (VPS). A VPS will help the court assess the immediate and possible long-term effects of the offence on the victim, as well as the harm caused, whether physical or psychological. Further, the statutory factors listed above that the courts take into consideration, all contribute to a balanced and just approach to sentencing that takes into account the protection of future victims.
51. The MoJ should establish an independent advisory panel on sentencing to consider proposed changes to sentencing policy and to provide advice to ministers. The independent panel should bring together academic experts, the voluntary sector, and, importantly, representatives of victims of crime and their families. It is vital for the legitimacy of the independent panel that it should contain a diversity of opinion and a range of perspectives on sentencing. The panel should also conduct structured public engagement as part of its work. Its findings and advice should be publicly available. The MoJ should also instruct the independent advisory panel to conduct regular reviews of the statutory minimum and maximum tariffs for sentences to determine whether sentences are proportionate and consistent across different types of offence. (Paragraph 95)
52. The MoJ currently uses a multi-faceted approach to policy development involving consultations with a broad range of experts, organisations, and individuals. This inclusive process aims to consider various viewpoints and ensure that policies are well-informed and effective. Furthermore, government policy, proposed new laws and topical issues are held to scrutiny via debates in both Houses of Parliament enabling a rigorous process of challenge, governance, and oversight.
53. The suggestion to include representatives of victims and their families is valid and aligns with our principles of inclusivity. As highlighted above, our Ministers use the views of victims, stakeholders and the wider public to help them make decisions and develop sentencing policy. Some of these mechanisms include manifesto commitments; the views of MPs, representing their constituents; victim-focused campaigns; consultations; and via e-petitions on parliament.uk.
The Sentencing Council is responsible for
a) assessing the impact of guidelines on sentencing practice. The Council may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government, and
b) promoting awareness among the public regarding the realities of sentencing, and publishing information about sentencing practice in magistrates’ courts and the Crown Court.
The Sentencing Council must also:
c) consider the impact on victims of sentencing decisions,
d) monitor the application of the guidelines, and
e) when developing guidelines, promote understanding of, and public confidence in, sentencing and the criminal justice system.
54. The Council comprises judicial and non-judicial professionals, including representatives of the police, Victim Support, probation service, and academics, who all have expertise in various areas related to criminal justice.
55. We are continually exploring ways to enhance current processes including ways to increasing public awareness of the existing avenues for engagement in sentencing policy discussions.
56. The Sentencing Council should be empowered to do more to encourage public engagement with its consultations on draft guidelines. For example, it should explore whether it could use the approach of using online questionnaires adopted by the Sentencing Guidelines Commission in the Netherlands to encourage more responses from the public to their consultations. Online questionnaires would appear to be a more accessible form of engagement than a simple call for written evidence. We would also recommend that any expansion in the scale of public engagement also includes the use of deliberative engagement tools similar to the public dialogue used as part of this inquiry. (Paragraph 100)
57. As the Committee will be aware, the Sentencing Council is independent of Government, and we understand that the Council will be responding to the Committee on the recommendations that apply specifically to the Council.
58. The Government should conduct a review of the terminology used in sentencing and should consider whether the terminology used for life sentences could be made more accessible to the public. (Paragraph 112)
59. We share the objective of having sentencing terminology that is accessible and comprehensible to the public. We recognise the importance of ensuring that we are using clear and simple language that is easily understandable by the public. This could involve, for example, avoiding unnecessary jargon and providing explanations for complex terms in the explanatory notes that accompany legislation.
60. We note that the JSC report highlights the Sentencing Academy’s work to review the terminology of sentencing and that the JSC is awaiting the Academy’s findings. The Government also eagerly awaits insights from the Sentencing Academy’s work, anticipating that these findings could contribute to broader initiatives or proposals in this domain.
61. In order to improve the quality of information in the public domain on sentencing, the judiciary should consider whether the model of press judges, as used in Finland and the Netherlands, could be used. The changing nature of the media landscape means that there is a strong case for taking a more proactive approach to providing information to the public on judgments, including sentencing. (Paragraph 116)
62. In the UK it is a fundamental constitutional principle that, outside judgments on appeal, judges do not comment publicly on the decisions of other judges. We consider this to be an important principle of judicial independence. Any consideration of the approach used in other countries is not for government but a matter for the judiciary.
63. We would encourage the Ministry of Justice and the Sentencing Council to promote and disseminate the latest data and analysis on sentencing trends, including local data, to the media. (Paragraph 117)
64. Publication and release dates are pre-announced in advance on the statistics release calendar and in preceding publications, including planned changes to these outputs. These data, both in terms of publication documents and tables are accessible to all, accompanied by transparent user guides to maximise the user experience.
65. The Sentencing Council will respond separately.
66. The Sentencing Council should be provided with additional resource to expand its communications work across both traditional and social media. (Paragraph 120)
67. In line with regular practice on funding with regards to Arm’s Length Bodies (ALBs) such as the Sentencing Council, the MoJ reviews the requirements of ALBs periodically and across the Spending Review period. The MoJ keeps funding allocations under review, adjusting budgets where necessary to reflect changes in policy, legislation, or other key priorities—whilst being mindful of the wider departmental budgetary position.
68. This Government, and its successors, need to think carefully about how to engage with public opinion on sentencing. There are important choices to be made about how to ascertain public opinion and the extent to which policy should be responsive to public pressure. In our view, the Government should seek to actively engage the public on sentencing policy but should do so in a structured and methodologically rigorous fashion. It should ensure that both traditional polling and deliberative methods are used, and that exercises occur at regular intervals. Finally, policy proposals on sentencing should be subject to independent evaluation, so that the resourcing implications are evaluated before they are enacted. (Paragraph 131)
69. Public opinion absolutely plays a pivotal role in shaping sentencing policy, and we recognise that this demands careful consideration. As mentioned in the above recommendation (Paragraph 81), there are several ways that we engage on sentencing policy to ensure an inclusive, as well as robust policy making process. We are continually exploring ways to enhance current processes including ways to increasing public awareness of the existing avenues for engagement in sentencing policy discussions.
70. The Government is grateful to the JSC for its report. As outlined in this response, we have delivered, or are delivering, several initiatives aimed at strengthening public confidence in the justice system and to support the transparency and accessibility of our justice system.
The Council welcomes the Justice Committee inquiry and subsequent report into Public Opinion and Understanding of Sentencing. The Council’s response to the various recommendations which relate to it are set out below.
It is worth making the point that public confidence in sentencing is dependent on a wide range of factors that cut across the activities of a range of bodies and agencies within the criminal justice system. Many of those factors will be out of the Council’s control and/or its remit. The Council welcomes the report’s recognition of the challenges that can be faced in promoting public confidence in what can be a complex and changing political, social and legislative landscape.
The Council is committed to doing what it can to address those matters for which it is responsible and has considered the Committee’s report in detail. This response outlines the Council’s views on the specific recommendations that relate to its work.
It is also important to note that, while the Council is committed to promoting public confidence in sentencing, its duties are broader than just ensuring confidence in sentencing. The Council must ensure that all of its statutory duties are properly considered and that any guidelines that it produces, or activities which it undertakes, reflect legislation as set down by Parliament, and that sentencing practice is proportionate, coherent and consistent.
We welcome the Sentencing Academy’s work reviewing the terminology of sentencing and we look forward to its findings. We encourage the Government to work with Sentencing Council and the judiciary to explore whether sentencing terminology can be simplified and made more accessible. The example set by the judiciary in the Netherlands and their project ‘plain language’ provides a useful model of how this could be done. (Paragraph 30)
Every judge has a duty under section 52 of the Sentencing Code to give reasons for and explain the effect of any sentence in ordinary language. It is not part of the Sentencing Council’s function to give guidance to the judiciary on how that duty should be discharged. Since the duty involves the exercise of an independent judicial function, it is not a matter for Government either. Any steps in relation to how judges pass sentence must be a matter for the judiciary whether via judicial training or some other means.
Terminology within guidelines reflects statutory language determined by Parliament who pass legislation, and existing legal terminology. While the Council intends guidelines to be accessible and understandable, it is imperative that they are reflective of legislation and case law.
To facilitate understanding and ensure guidelines are universally accessible, the Sentencing Council website currently includes a dedicated section for members of the public on ‘How Sentencing Works’. This section uses simple language to explain a range of criminal justice matters such as types of sentence and the purposes of sentencing.
The Council is of the view that any fundamental revision to terminology would best be initiated and led by Government who would be responsible for bringing forward any legislative proposals to amend the terminology currently in use. Were this to be something that the Government wished to consider the Council would be willing to engage with it in support of any work it may wish to undertake.
There needs to be a step-change in the Ministry of Justice, the Attorney General’s Office and the Sentencing Council’s efforts on public legal education. HMCTS should develop a programme which enables secondary school pupils to be able to visit magistrates’ courts and Crown Courts to find out about the criminal justice system and sentencing. Education about criminal justice procedure, including sentencing policy and practice, should be incorporated into the National Curriculum for Citizenship Education. The Sentencing Council should look into producing a Massive Open Online Course (MOOC) on sentencing that could enable members of the public to learn about how sentencing works in England and Wales. Resources on sentencing and criminal justice could also be added to the Oak National Academy Online teaching resources. The Ministry of Justice and the Sentencing Council should consider producing a standalone public- facing website dedicated to providing the public with up-to date information on sentencing trends in England and Wales. (Paragraph 37)
The Sentencing Council has previously contributed to and supported a number of public legal education initiatives, including a MOOC developed by the Judicial Office for England and Wales, and contributes to and reviews content for the Young Citizens programmes for use in secondary schools. The Council considers that supporting external initiatives such as these is the best use of its limited resources; it does not itself have the resources or expertise to offer a full public legal education programme.
To support public understanding of sentencing the Council has also been working in partnership with the Judicial Office to develop a new, up-to-date version of ‘You be the Judge’, which uses short video stories to help explain to the public how sentencing works. We know that the original version was a highly effective public education tool and we are confident the enhanced, updated tool will facilitate greater public understanding of the sentencing process.
Due to its independence the Council does not consider it would be appropriate to produce a standalone website in partnership with the Ministry of Justice to provide up-to-date information on sentencing trends. A further response to the latter point, as it relates to what the Sentencing Council might do in this area, is included in relation to other data-related recommendations.
It is vital that the public has access to current data on sentencing practice so individual cases can be understood in their broader context. The MoJ should review its statistical releases on sentencing to ensure that they are presented in a format that is easily accessible and relevant to members of the public. Statistical releases should be accompanied by analysis and commentary. The MoJ should also revive the digest of criminal justice statistics and ensure that this reflects trends in sentencing and issues subject to public debate. The Sentencing Council should provide independent and impartial analysis on significant trends in sentencing to inform public debate and government policy. (Paragraph 43)
The Sentencing Council currently signposts information on relevant statistical publications on its website and will consider what more can be done subject to resource considerations. While there may be potential for more information to be published, the Council considers that providing analysis of trends in sentencing could conflict with the non-political status of the Council. The choices of what data are included or what trends are to be analysed, or conclusions reached as to significant causal factors, could be interpreted as taking a view one way or another on the merits of any legislative initiatives which might have had an effect on those trends. The Council considers the academic community is likely a better provider of any such analysis.
The Crown Court Sentencing Survey provided a rich dataset on how sentences are determined. It should be possible to use the Common Platform, the new case information system used in the criminal justice system, to produce a valuable dataset on sentencing without imposing additional burdens on the courts and the Sentencing Council. The Ministry of Justice, HMCTS and the Sentencing Council should explore how the Common Platform can be used to produce useful sentencing data that can be presented in a way that is accessible to the public. (Paragraph 48)
The Common Platform will not (and was never intended to) collect all the guideline-specific information the Council needs for analytical purposes, which includes information relating to culpability, harm and aggravating and mitigating sentencing factors, which vary considerably across guidelines.
Collecting the detailed guideline-specific data required by the Council via the Common Platform would still require sentencer input as this is not data that has ever been collected other than via the Sentencing Council’s own data-collections. To do this via the Common Platform would require significant changes to both the Common Platform and the court processes related to it. It is also unlikely to be any less resource-intensive for courts than the current approach used by the Council for its bespoke surveys and may even be more resource-intensive. Both HMCTS and the Council are keenly aware of the need to avoid placing greater administrative burdens on the system generally, but particularly at present given the current pressures on the system whilst it deals with the current caseload.
The Council and HMCTS have been discussing for some time what potential there may be to link sentencing surveys to the Common Platform in a more seamless way that may reduce burdens on the courts. The Council is also continuing to explore what additional data may become available via the Common Platform in the future and to what purpose it could be put. It will continue to consider and conduct other research exercises to gather sentencing information in the meantime.
Data on sentencing in individual courts will help the public to understand sentencing trends in their local area and is likely to help to stimulate local media interest and reporting. The Sentencing Council and the Ministry of Justice should work together to ensure that the statutory duty to publish information on sentencing in individual courts is fulfilled. We would ask that the Ministry of Justice and the Sentencing Council provide an update on what progress has been made on fulfilling this duty six months after the publication of this report. (Paragraph 50)
The Council has considered how it can fulfil this duty on a number of occasions in the past. Presenting outcomes at Crown Court locations, or at local criminal justice area levels in a meaningful way is inherently complex as sufficient data is not available to control for all the relevant factors that are taken into account in sentencing. Without the additional context of these factors, statistics cannot be interpreted meaningfully and are likely to be misconstrued, potentially undermining rather than improving public confidence. This presents a significant tension between promoting awareness of sentencing at a local level and increasing public confidence.
The Council is continuing to explore how these challenges to delivering the statutory duty in a meaningful way can be addressed. The Council has already made a specific commitment to explore this as part of its current five-year strategic plan, which is still in the process of being delivered.
Given the potential importance of public opinion in influencing sentencing policy, the Government should consider adopting a structured engagement plan to gather information on the public’s views on sentencing. Whilst we recognise the value of public polling exercises, we recommend caution be exercised in relying exclusively on the findings of ad hoc polls as an evidence base for sentencing policy decisions. The MoJ should conduct regular, structured, deliberative engagement exercises with members of the public as part of its policy development process. The Sentencing Council should also consider whether it could use structured deliberative engagement exercises as part of its public engagement work and as part of its consultations on draft guidelines, including a full range of offending scenarios, such as violent and sexual offending, if relevant. (Paragraph 81)
The Sentencing Council seeks to understand public opinion through a number of mechanisms and in addition to its public consultations in relation to each guideline has undertaken research with members of the public on matters such as public knowledge and attitudes to sentencing. As noted earlier in this response the updated ‘You be the Judge’ tool which will be available shortly will also facilitate greater public understanding of the sentencing process.
We can see how deliberative engagement exercises may have value in identifying broad opinions and understanding of topics such as sentencing policy and the role and purpose of sentencing. However, it is not immediately apparent that this approach would benefit the technical consultations the Council undertakes where the Council is seeking views on specific proposals.
The Council will consider, as part of its ongoing work to encourage a greater range of responses to its consultations whether structured deliberative engagement exercises, or similar, may be of benefit.
The Sentencing Council should be empowered to do more to encourage public engagement with its consultations on draft guidelines. For example, it should explore whether it could use the approach of using online questionnaires adopted by the Sentencing Guidelines Commission in the Netherlands to encourage more responses from the public to their consultations. Online questionnaires would appear to be a more accessible form of engagement than a simple call for written evidence. We would also recommend that any expansion in the scale of public engagement also includes the use of deliberative engagement tools similar to the public dialogue used as part of this inquiry. (Paragraph 100)
All Sentencing Council consultations are now available as online questionnaires. As part of one of the objectives the Council set itself under its five-year strategic plan to make consultations more accessible they are now accompanied on our website with introductory material written specifically for public audiences.
We will consider the Netherlands model as part of our commitment to exploring other ways we communicate and engage with the public.
We would encourage the Ministry of Justice and the Sentencing Council to promote and disseminate the latest data and analysis on sentencing trends, including local data, to the media. (Paragraph 117)
As noted earlier in this response (in relation to paragraph 43 of the report) the Council already publishes statistical information and bulletins, and resource assessments for guidelines. As was also noted above, the Council believes that there are risks with the Council providing analysis of such data.
The Council feels it is important that any such approach would need to consider how such trends and analysis could be presented neutrally to avoid undermining, rather than improving, public confidence in both the Council as well as sentencing more generally.
As noted earlier in this response, the Council will keep the recommendation at paragraph 43, along with the recommendation above, under review and look again at whether there are sentencing trends that the Council could usefully bring to the wider public and/or media attention in a non-contentious, impartial manner.