Appendix 4
Reply from Professor A J Ashworth QC,
Vinerian Professor of English Law,
University of Oxford
Thank you for your letter about the constitutional
implications of the sentencing provision of the Criminal Justice
Bill. I will do my best to offer a few comments in response to
the questions you pose.
1. I have grave misgivings about the amendment
to clause 160 that includes a person with experience of "sentencing
policy and the administration of sentences" within the statutory
membership of the Sentencing Guidelines Council, if that description
is intended to apply to a Home Office civil servant. Such misgivings
can only have a secure foundation once the constitutional position
of the SGC has been determined, and that is a difficult matter.
It is not part of the legislative or the executive branch, I
would say, and must therefore rank as a quasi-judicial body.
It will certainly be expected to act in a judicial manner. This
suggests to me that it would be inappropriate to have a member
of the executive on the SGC, especially if (as your question rightly
implies) the civil servant would be expected to put forward and
represent the views of her or his government department.
It is not clear that the same objection would apply
to the other non-judicial members enumerated in the amended clause
160(4). Prosecution and defence lawyers may represent their organisational
views, but at least they have taken a professional oath when admitted,
and have a duty to the courts. The police are part of the executive,
but they are technically an independent organisation.
One might question the need for any of these non-judicial
members, on the ground that clause 163(8) requires the SGC to
consult the Home Secretary before issuing guidelines, and on the
ground that this non-judicial membership duplicates the diversity
in membership of the Sentencing Advisory Panel, to which I now
turn.
2. The SAP includes three judicial members and
a lay magistrate, three academics, three members of the public
with no prior criminal justice connections, and others with backgrounds
in probation, police, prisons and so forth. It has a statutory
duty to consult widely, with a list of required consultees and
a website that encourages (and receives) opinions from members
of the public. It also has a small research budget, and has commissioned
two research projects (on domestic burglary and on rape) whose
results have informed its advice. The Panel may now be said to
have established its credentials by producing a succession of
draft guidelines, most of which have been adopted by the Court
of Appeal without substantial amendment: see further the SAP annual
reports, available at www.sentencing-advisory-panel.gov.uk The
Panel's latest annual report will be launched next Wednesday,
25 June.
This considerable overlap between the membership
of the SAP and the new SGC (please forgive the acronyms) raises
the question about the need for both bodies. The first part of
the question must be whether there is a need for two agencies,
whoever they are. At present the SAP gives advice to the Court
of Appeal, and the guidelines then acquire their authority through
incorporation into a judgment which binds the lower courts. This
also creates a judicial filter, which was certainly necessary
in the early days of the SAP, before it had established a pattern
of working. It now seems that the higher judiciary is broadly
content with the results of the Panel's deliberations. It might
therefore be argued that, since the Panel has shown itself capable
of generating sensible and acceptable guidelines over a period
of some four years, it should be given the power to create definitive
guidelines without further reference. If it were thought that
this would risk a rift with the higher judiciary, why not reinforce
the existing SAP by appointing one or two senior judges to it,
rather than creating an extra tier in the shape of the SGC?
It may well be thought inappropriate to continue
with the system established by sections 80-81 of the Crime and
Disorder Act 1998, whereby the Court of Appeal lays down guidelines
as part of judgments on appeals by individuals or references by
the Attorney-General. Sentencing guidelines should not be located
in court judgments but should be collected and presented elsewhere,
since in reality they are a form of rule-making. It may therefore
be suggested that the idea of a collection of what the Bill terms
"definitive guidelines", presumably as a form of delegated
legislation, is a preferable format. The SAP could be given the
power to generate such guidelines, and the SGC would then appear
to be a fifth wheel on the coach, as it were. All the requirements
made of the SGC in clause 163 could be made of the Panel, including
consulting the Home Secretary and other nominated consultees.
It is evident, however, that the government has set itself against
giving further powers to the Panel, and has decided to press for
the creation of the SGC too.
3. The intended relationship between the SGC
and the SAP is unclear and under-documented in what has so far
been published by the government. If the aspiration really is
to produce comprehensive guidelines, the working practices of
those two bodies need to be considered carefully. At present
the Bill anticipates that the SGC can only act on the advice of
the SAP; and the SAP's obligations to consult and to take account
of various other factors mean that it tends to take 8 or 9 months
to deal with each subject on which guidelines are required. The
SAP meets once a month, and it seems that the SGC will meet less
frequently. Several administrative issues need resolution if
the operation is to be a smooth and productive one.
As for the intended relationship between the SGC
and the Court of Appeal, this is also unclear. The Bill repeals
the provision in the Crime and Disorder Act 1998 stating that
the Court of Appeal cannot create sentencing guidelines without
referring the matter to SAP, so it seems possible (in theory at
least) that the Court could give its own guidance or guidelines
if it thinks this necessary. It is more likely, however, that
definitive guidelines (in the sense used in the Bill) will be
applied by the Court of Appeal as if they were law; they are,
however, guidelines and not rules, and the Court has emphasised
on several occasions that guidelines do leave room for courts
to depart from them in response to unusual combinations of facts,
etc.
4. I find it difficult to say whether the work
of the SGC will "meet the public interest", since that
is so often defined in terms of the views of the media or of politicians.
The British Crime Survey demonstrates what the views of the public
are, but as such they are systematically ignored by politicians.
The term "public interest" is surely unhelpful in this
context, because it is so heavily contested. It cannot be regarded
as an objective standard.
I hope these few reflections are of use to you and
the Committee. Please contact me again if you think I can be
of further assistance.
17 June 2003
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