We are once again embarking upon another phase of developing a consistent sentencing regime in courts up and down the country.
The latest important work began in April 2010 when Lord Justice Leveson accepted the position of Chairman of the new Sentencing Council. As the new Chairman put it in his article “Consistency & confidence” (Counsel September 2010 p 29): “we have already started work on the first major survey of its kind to examine the factors which influence sentencing in Crown Courts.” To this effect, a survey will compile information to be used “for all high volume, high impact criminal cases.” (For more information see “The Sentencing Survey” on p 31.)

Public confidence

Not surprisingly, a key concern of this survey and ultimately the driver for development of any new sentencing regime is, as expressed in the article, “public confidence”. But if, as must be accepted, public trust in sentencing within the Criminal Justice System (“CJS”) is an important element, two further questions arise: do we accept that public confidence is really that low?  In any event, what does the public really want?

Lord Justice Leveson observes in his article that “people have low levels of confidence in the criminal justice system – according to the British Crime Survey, only 24 per cent of people believe that courts are effective at giving punishments which fit the crime”.
All the more important then that the imminent consultations with the public provide, as promised, full information about sentencing so that a complete understanding can be achieved.

The use of statistics

The article does not state which British Crime Survey Lord Justice Leveson is referring to when he cites the 24 per cent statistic. But from a consideration of the 2009 Survey it is important to note that 59.4 per cent of people were confident that the CJS as a whole was fair and that 40.7 per cent were confident that as a whole it was effective. (See Survey p 122.)

The use of statistics – particularly in isolation – can be misleading. For instance, in the Home Office document Public Attitudes to the Criminal Justice System (Home Office Online Report 64/04), the author concluded that the more the public were informed about how the CJS worked and understood its dynamics the more they were satisfied that the process was fair. As that document stated (p 12): “Simply engaging people with the topic of Crime and Criminal Justice results in increased confidence.”

Indeed, as Professor Martin Wasik eloquently put it in his paper “Going Round in Circles? Reflections and Fifty Years of Change in Sentencing” ((2004) Criminal Law Review 253): “sentencing levels are ‘talked up’ by politicians who portray the public as insatiably punitive, although numerous research studies show that this is not the case at all”.

As former Chairman of the Sentencing Advisory Panel, Professor Wasik is well positioned to comment, emboldened as he was by a government White Paper leading to the Criminal Justice Act 2003 (“the 2003 Act”) observing that “the public are sick and tired of a sentencing System that does not make sense … there is no real clarity for magistrates and judges in sentencing and the System is so muddled the public do not always understand or have confidence in it”. (See Justice For All (Cm 5563).)

The 2003 Act contains 159 sections and 38 schedules which concern various aspects of sentencing. It created the dangerous offenders regime (significantly amended only a few years after it began), and in Sch 21 set out “appropriate starting points” for minimum sentences in mandatory life sentence cases. The latter was inserted in the middle of the Bill’s passage when the House of Lords held to be incompatible the Home Secretary’s ancient right to revise the sentencing judge’s recommendation on the grounds that the Home Secretary was not an independent tribunal established by law as guaranteed for a fair trial by art 6 of the European Convention on Human Rights (as set out in Sch 1 to the Human Rights Act 1998). The taste of the Act had a distinctly retributive element to it. It sought to speak in the name of the public, but again seems to have got it wrong.

In their paper “Public Attitudes to Sentencing Purposes and Sentencing Factors: An Empirical Analysis” ((2009) Criminal Law Review 771), Roberts, Hough, Jacobson and Moon again confirmed Professor Wasik’s findings of 2004, and their extensive research counters “the stereotypical view of the public as punitive sentencers concerned almost exclusively with punishment and focussed on the offence at the expense of any legally relevant offenders’ characteristics”.

In fact, their 2009 findings established that respondents displayed an interest in the particular circumstances of offences and did not make categorical judgment based on crime seriousness alone. The position is therefore more complex than a simple assertion that “only 24 per cent of people believe the courts are effective at giving punishment which fits the crime”. 

Consistency across the board

The 2009 British Crime Survey also acknowledges that there is a disparity between the perception of the likelihood of being a victim of crime and the actual risk (see Survey p 109). It follows from this that whatever perceptions the public have about the CJS, and in particular sentencing, must also be weighted by any unrealistic fears or anxiety that they have about the state of criminal justice enforcement in this country. 

What cannot be contradicted is that, on any analysis, the public have concerns about the sentencing regime, but that can be harnessed into one word – consistency.

Perhaps future reform of sentencing matrices should in fact be far more radical than has been proposed to date. Consideration in the past has been subject specific. Helpful and regular guidelines were received from the Sentencing Guideline Council upon a range of sentencing approaches, confined and considered within closed categories of subject headings, understandable and consistent within their own discipline and creating a compelling internal logic for all who considered and applied them.

This resulted in a schedule of the tariffs – for instance cases of causing death by dangerous driving, say involving deliberate decisions to ignore or flagrant disregard for the rules of the road, causing death, attracting between 7-14 years in custody with a starting point of 8 years (Guidelines 2008) – sitting alongside drug sentencing parameters which at a serious level can result in defendants being sentenced within a 15-20 year range even on a plea of guilty.

It is these and other inconsistencies across boundaries that do not chime with 21st Century approaches and beliefs which ultimately undermine our sentencing regime.

It is not argued that serious drug importation is not to be the subject of anything other than condign punishment, but it is perhaps time to consider whether any public lack of confidence in the sentencing procedure might be borne of the way sentencing policy has developed in a compartmentalised, subject specific way in the past eight years and posits the question whether a broader view of sentencing within the CJS is required to make tariffs consistent in comparison to each other rather than in splendid isolation.

This wider, root and branch approach does not seem to be on the agenda.

The first guidance to be issued by the new Sentencing Council will be confining itself to assault and guilty pleas. There is absolutely no doubt that the formidable calibre of the working at the Sentencing Council will produce some insightful work, but if it is to be based upon public confidence, as it must, it is essential to understand the very people it seeks to assist.

John Cooper QC is a barrister at 25 Bedford Row and Consultant Editor of CL&J


The Sentencing Survey

The Crown Court Sentencing Survey, which commenced on 1 October 2010, is an ongoing data collection exercise of sentencing decisions made in the Crown Court. All judges (or other sentencers) sitting in the Crown Court should complete a form every time a sentence is passed.

The form

There are nine different survey forms that cover different types of offences. Offences have been grouped together where there are similar mitigating and aggravating factors. The form needs to be completed in respect of the principal offence for every sentence passed. The forms record details of the factors relied on by the sentencer in deciding the sentence which will have been stated in court. They do not record any additional information.

Publishing the findings

The findings will be published on an annual basis. It is anticipated that the first set of results from the survey will be published in either July or August 2011 and will relate to the data collected during the period 1 October 2010 to 31 March 2011.

For further information visit: www.sentencingcouncil.org.uk/facts/430.htm