Online Only: Sentencing at the Hard End

Local magistrates are losing powers of discretion in sentencing

From 4th August magistrates throughout England and Wales will be obliged when sentencing to follow a rule book produced by the Sentencing Guidelines Council. Many years of judicial discretion and common law precedents are to be jettisoned in favour of a handbook produced behind closed doors. Its offensively condescending style is likely to annoy experienced magistrates who know what sentence will be acceptable to the public in a particular town or district.

Some of the guidelines are surprising. Possession of a bladed article is lumped together with possession of an offensive weapon, although in law the offensive weapon is clearly a more serious offence. Fewer burglars will go to prison. Only criminal damage to a value of over £5000 attracts a custodial sentence and people who steal their neighbours’ cars can now expect only a Mickey Mouse fine.

On the other hand, failing to turn up at court is now to be treated severely. Many offenders lead chaotic lives. They have problems with drugs or alcohol, their accommodation is not secure, they lose their charge sheets and cannot remember court dates. Now, if their solicitor will have to advise them that they are at real risk of a prison sentence, they are not likely to surrender to the police. What planet, one wonders, do those who wrote these guidelines inhabit?The introduction of these prescriptive guidelines is not, however, surprising. The Sentencing Guidelines Council was set up by the Criminal Justice Act 2003 to frame guidelines to promote consistency. In December 2007 Lord Carter, having produced a detailed report on criminal legal aid (which was then expertly and savagely dissected by a House of Commons committee) published his review of prisons “Securing the Future”. He advocated the establishment of a Sentencing Commission whose role would be to prescribe a sentencing framework which would reduce the prison population, provide a means of predicting any increase and match the custodial sentences imposed to the prison places available.

By the summer of 2007 prison numbers had reached 81,000. Lord Carter recommended that the building programme should be expanded so that by 2014 there should be 96,000 places, and that so-called Titan prisons should be built with a capacity of 2,500 inmates each. (Lord Carter is obsessed with size: his review of legal aid recommended chivvying solicitors into forming large firms.) Since June 1995 the prison population, he said, had increased by 60%, more than 30,000, and the choice was to continue with prison expansion or to plan so that custody was used less frequently.

However, as a proportion of sentences passed in all courts there has been only a 1% increase in prison sentences over the 10 years 1995-2005. More people, it seems, are going through the courts. Probation officers can no longer exercise their discretion about whether a person should be summoned to court for breaching an order. Unsurprisingly, from 180 people in prison for breaches in January 1995 the number rose to 1,200 in August 2007. Similarly 150 people were in prison for breach of prison licences in January 1995; in August 2007 there were 5,300. Add to this the longer sentences now prescribed by law, giving the judge little discretion, for firearms, “third strike” burglaries and people categorized as “dangerous offenders” and the increase in prison population is predictable.

In January a little publicised Sentencing Commission working group was set up and a consultation paper was produced inviting responses by 2nd June. A summary of responses is expected in September. The Commission advocates the introduction of prescriptive guidelines which courts would be obliged to follow. They suggest that a framework for sentencing should be imposed by the Commission who would work with “a set of planning assumptions” covering 4 or 5 years ahead. The behaviour of judges and magistrates would be monitored to ensure compliance and possibly departures from the guidelines would be publicised. Not only would the guidelines prescribe the range of sentences available but also the factors which could be taken into account as mitigation would be reduced to “fewer and more readily available criteria”.

The guidelines could, they suggest, be presented to Parliament for approval, but only as a package which could be rejected in its entirety but not amended (like the Lisbon Treaty). For some reason which is not explained “…it could not be subject to amendment without creating insuperable difficulties for the position of the Commission and its judicial member”; or perhaps making changes and amendments could be done by secondary legislation; or even better, difficulties could be avoided by the guidelines not being presented to parliament at all but simply published by the Commission with a requirement in law for all sentencers to adhere to it. Justice decided behind closed doors.

Sentencing practice has been developed over many years, with the possibility of appeal against sentences when the judge or magistrates have gone wild. Only after everything else has been tried will a person be locked up for a minor offence. What is missing from Lord Carter’s review and from the Sentencing Commission is any evidence that sentences are inconsistent. Lord Carter notes that the average length of custodial sentences in the magistrates’ courts has remained constant at 3 months between 1995 and 2006.

This government has two priorities: to look as if it is being tough on crime and not to spend any money. It also does not like independent professionals and will seek to reduce discretion wherever it can, whether it be that of doctors, dentists, academics or lawyers. Its aim is to control.

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