Select Committee on Constitution Seventh Report

Appendix 2

Reply from the Home Secretary, the Rt Hon. David Blunkett MP

Thank you for your letter of 16 June concerning the composition and functions of the Sentencing Guidelines Council, as laid out in clauses 160 to 166 of the Criminal Justice Bill.

As you will know, the background to the clauses as they are now is the concern which was raised in the House of Commons that there should be a greater role both for Parliament and the wider community in the production of sentencing guidelines. Following the debate in the Standing Committee on the Bill (21st and 22nd sittings, Thursday 6 February), the Government decided that the best way to meet these concerns would be to widen the composition of the Council. The proposals in clause 160 are aimed at ensuring that the Council will include people involved in the key areas associated with sentencing and the implementation of sentencing decisions. We believe that this will add enormous value to the process.

It is not unprecedented for civil servants to sit on bodies that are classified as independent. It is often done because they can provide expertise in practical considerations which are relevant. In this instance they could inform discussion with knowledge, for instance of new forms of non-custodial penalties. In addition, it is proper for the Council to be aware of sentencing policy in relation to areas under discussion to inform the debate without in any way exerting pressure on the Council. The position here is no different from that for all the members who will sit in their own right not as representatives of their organisations, but will each bring their own perspective, knowledge and insight to bear.

The Council's independence will be protected by its composition. It will be chaired by the Lord Chief Justice and will have seven judicial members as well as five non-judicial members. We have in mind that only one of these - the one with experience of sentencing policy and the administration of sentences, at 160(4)(e) - will be a civil servant.

We will be making it clear that the non-judicial members, including the civil servant member, will be acting in their own right rather than as representatives of their organisations. They are being appointed for the expertise they bring, not to consult within their organisation and convey views. This is underlined by the fact that no substitute will be able to attend meetings in their place.

The Judicial Studies Board, while not a statutory body, is an independent body with some analogies. Its members are appointed by the Lord Chancellor. Its independence is set out in its Memorandum of Understanding. Its function is to decide and, in many cases, to provide, the training required by judges. It has civil servants on both its main board and its sub-committees. This is a long-standing arrangement which the judiciary have found satisfactory.

In response to your second question concerning the relationship between the Council and the Sentencing Advisory Panel, we do believe that both bodies are needed. The SAP will continue its present role - though its remit has been expanded to cover all offences and general matters affecting sentencing - of providing advice on proposed guidelines, informed by research and a thorough consultation. It will provide this advice direct to the Council, which will be the body responsible for taking the final decision on draft guidelines, of issuing them for consultation in draft, and finally of publishing them. These I believe are quite distinct roles. The SAP will inform the decisions of the Council, who will not have the time nor the capacity to undertake the work themselves, but the Council will be the decision-maker.

As regards your third question, we intend to repeal sections 80 and 81 of the Crime & Disorder Act 1998 which confers statutory functions on the Court of Appeal in relation to sentencing guidelines, when the Sentencing Guidelines Council is constituted. However, we have made transitional provision to ensure the continuing validity of existing guidelines issued by the Court of Appeal, until the SGC is in a position to issue its own guidelines. In drafting its guidelines, the Council will clearly take into account any existing guidelines in relevant areas issued by the Court of Appeal. Under the new arrangements, the Courts will be required to take into account the guidelines issued by the SGC (which will apply to all criminal courts). However we do recognise that the role of the Court of Appeal (and the House of Lords) in interpreting and re-interpreting the law may well require the Council to respond to judgements with new or revised guidelines.

Finally, we do strongly believe that the work of the Council will meet the public interest in sentencing policies. One of the key aims of our sentencing reforms is to increase the transparency of sentencing - both of the sentencing process and the sentences themselves. The current sentencing framework is relatively inaccessible: the result of a large volume of statutes (at least eight since 1991) most of which amend each other, and an equally large volume of case law. On top of this, an interested enquirer would be directed to the Magistrates' Courts Sentencing Guidelines. The Council will be responsible for drafting what will eventually be a consolidated set of sentencing guidelines applicable to all criminal courts. They will be required to publish these guidelines in a way which is transparent and accessible to the public. They will also be required to publish an annual report, giving details of their activities during the year. Their guidelines will have been informed by a wide-ranging consultation - first in the SAP's initial consideration of the matter (they often consult the views of the public) and then by the Council itself who will be consulting Parliament, via the mechanism of the Home Affairs Select Committee. We do not therefore anticipate - as the proposals currently stand - that the creation of the Council will affect the legislative work of Parliament.

I hope that this is helpful, and look forward to receiving your report on this matter.

24 June 2003

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