Select Committee on Constitution Seventh Report

Appendix 5

Reply from Dr D A Thomas QC, Institute of Criminology, University of Cambridge

Thank you for your letter about the constitutional implications of the Sentencing Guidelines Council proposed in the Criminal Justice Bill.

In relation to the propriety of the appointment of a civil servant to membership of the Council, I have the gravest doubts whether this can be considered constitutionally appropriate. I am not familiar with the strict rules governing the behaviour of civil servants, but I cannot imagine that any civil servant appointed to the Council would be free to express any personal opinion on any matter with which the Council was concerned. It seems to me that he would be constitutionally bound to convey and to reflect the views of his minister. Even if this were not so, I would have no doubt that it would appear to be so, and that any civil servant appointed to the Council would be seen by others, rightly or wrongly, merely as a spokesperson for the minister. If it is desirable to appoint to the Council a person with the knowledge, experience and perspective that a civil servant might be expected to have, then the obvious solution would be to appoint a recently retired civil servant who would be familiar with the civil service perspective, but no longer obliged to express the departmental or ministerial view.

The relationship between the Sentencing Guidelines Council and the Sentencing Advisory Panel has in my opinion changed substantially as a result of the amendments made to the Bill at Report Stage in the House of Commons. The original version of the Bill as introduced proposed a Sentencing Guidelines Council which would have consisted entirely of members of the judiciary, including lay magistrates. It made sense in that scheme to preserve the Sentencing Advisory Panel, as a more broadly based body with a duty to consult widely on any advice that it was inclined to give. The Sentencing Advisory Panel would thus be in a position to place before the Council views derived from the general public and the various bodies or individuals consulted. It might be thought that a Council composed wholly of members of the judiciary would not be in the best position to carry out this function, which the Sentencing Advisory Panel is accustomed to perform.

The change in the composition of the Sentencing Guidelines Council to include a number of non- judicial members appointed by the Secretary of State seems to me to make the retention of the Sentencing Advisory Panel as a separate body unnecessary. If the Sentencing Guidelines Council, in the form in which it is at present proposed, is provided with an adequate secretariat, there seems to me no reason why the Council should not take over of the function of consultation which the Panel has until now performed. While I would regret the passing of Panel, which has established itself as an important contributor to the sentencing system, I find it is wholly irrational to create a system in which one body will advise another essentially similar body on what advice should be given, in the form of guidelines, to the judiciary. The process contemplated by Bill in its present form is obviously unnecessarily cumbersome and time consuming.

The relationship between the Sentencing Guidelines Council and the Court of Appeal is one of the most curious features of the proposal. Under the Crime and Disorder Act 1998, the Court of Appeal is prohibited from giving any guideline judgment without first consulting the Panel and considering the advice which the Panel gives in response to the court's request. Obviously there is some uncertainty as to what exactly constitutes a guideline judgment. The Criminal Justice Bill makes no reference to the Court of Appeal Criminal Division in connection with the Sentencing Guidelines Council. It seems to assume that the Council will provide guidelines on every conceivable aspect of sentencing within a relatively short period of time, and that the courts will take them into account as the primary source of guidance on sentencing. In this perspective, the influence and role of the Court of Appeal Criminal Division would be substantially reduced, perhaps to interpreting the terms of the guidelines and discussing the question of when a sentencing judge may properly depart from the advice given by the Sentencing Guidelines Council. What I find significant is that the restriction on the Court of Appeal giving its own independent guideline judgments, which is contained in the Crime and Disorder Act 1998, seems to disappear in the Criminal Justice Bill. The Court of Appeal will be free to give its own guideline judgments (perhaps calling them something different) on its own initiative whenever it considers it necessary to do so. To that extent, it may be that the Criminal Justice Bill will give back to the Court of Appeal the freedom which was removed from it by the 1998 Act. In practice it will probably be many years before guidelines formulated by the Council will cover a wide range of sentencing questions, and it will be necessary for the Court of Appeal to give guidance, albeit on an interim basis, on those issues on which the Council has not yet had time to pronounce. In practice I would expect that sentencing judges would be more influenced by decisions of the Court of Appeal than by guidelines promulgated by Council, and the real effect of the legislation would be to restore, albeit in an unintended way, the Court of Appeal as the primary effective source of sentencing guidance.

The Bill does not oblige sentencing judges to apply the guidelines proposed by the Council. The position will be that a sentencing judge will be required to have regard to them in imposing sentence. I have no doubt that relatively soon after this legislation is in force the Court of Appeal will rule that the duty to have regard to the guidelines does not amount to a duty to follow them slavishly; guidelines are guidelines, not tramlines, as has often been said. There will be a growing case law on the question of when it is proper to depart from the guidance set out by the Council. I have no doubt that the Court of Appeal will adopt the position that while the guidelines must be paid appropriate respect, a sentencing judge must give priority to doing justice in the circumstances of the particular case before him, and that if it is necessary to depart from the guidelines in order to achieve this result, the sentencing judge is free to do so. This position seems to me to be entirely consistent with the provisions of the Bill. While it is undoubtedly the object of the legislation to suppress the position of the Court of Appeal and transfer its influence to the Council, in practice I expect that the opposite will be the case, and the modest diminution in the importance of the Court of Appeal which has followed the creation of the Sentencing Advisory Panel will be reversed.

So far as the extent to which the Sentencing Guidelines Council will meet the public interest in sentencing policies is concerned, I have no doubt whatever that the proposed Council is wholly unnecessary within the framework of the English sentencing system. I have a reasonable degree of familiarity with the sentencing systems of other English language jurisdictions, and I would argue that the English system, centred on the Court of Appeal, and based on concrete guidance developed in relation to real cases, is superior to any other system in the English language world. The idea of Sentencing Guidelines Commissions or Councils originated in the United States in the late 1970s and early 1980s, as a consequence of the abolition of the indeterminate sentence as the central element in American sentencing practice. In the days of the indeterminate sentence, appellate courts had no real function in sentencing, and the abolition of the indeterminate sentence, which left the sentencing function effectively in the hands of the Parole Board, led to a vacuum and the need to put some guidance in place very quickly. It is noticeable that no Commonwealth jurisdiction using a scheme based on the English system, in which an appellate court plays the central role in sentencing policy making, has departed from that model and adopted a version of the American Sentencing Commission model. Sentencing Councils or Commissions in the United States have met with mixed success and in many cases have attracted enormous criticism.

The only reason for introducing a Sentencing Guidelines Council at this stage seems to be a desire to give the Secretary of State a degree of influence over the details of sentencing policy which he has not previously had. Until recently, the clear convention has been that Parliament sets, by legislation, the parameters of judicial sentencing discretion and judges formulate the details of policy and practice within those parameters. For the last ten years, there has been an increasing drift towards a mandatory sentencing system, but always by legislation. Under the Sentencing Council in the form proposed by the Criminal Justice Bill, the Secretary of State will have a number of opportunities to involve himself in the details of sentencing policy. Under clause 163, the Secretary of State may propose to the Council that guidelines be framed or revised; if he does so, the Council must consider the proposal. The Council, all of whose members will have been appointed by or after consultation with the Secretary of State, and may include a civil servant answerable to him, will in due course, after consulting the Sentencing Advisory Panel, publish its guidelines as draft guidelines. It is then obliged to consult in particular the Secretary of State. When this process has been completed, the Council, after making any amendments which it considers appropriate, may publish the guidelines as definitive guidelines. It is difficult to read these provisions without gaining the impression that the Secretary of State intends to exercise a high degree of influence over the process of developing sentencing guidelines from inception to completion.

What will happen as a result of the enactment of these provisions is a matter of a speculation. Political fashions in sentencing change with increasing frequency, and what was of crucial importance yesterday is soon forgotten. In 1997, Parliament passed the Crime Sentences Act, creating the automatic life sentence; the proposals were hotly debated in both Houses, carried into law and brought into force by the present administration. The automatic life sentence will be repealed by the present Criminal Justice Bill, in a provision tucked away at the end of the Bill which has attracted no attention so far as I am aware. In 2000, it was considered an urgent necessity to provide for mandatory terms of imprisonment for offenders found to be in breach of community orders. Provisions to this effect were included in the Criminal Justice and Court Services Act 2000. They have never been brought into force, and the new scheme for community orders included in the Criminal Justice Bill indicates that they will never be. How long the Sentencing Guidelines Council will exist is difficult to guess. The Sentencing Advisory Panel is being sidelined after four years, despite achieving a significant measure of success. It would surprise me if the Sentencing Guidelines Council lasted any longer.

18 June 2003

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