Transparency and Consistency of Sentencing

Baroness Blackwood of North Oxford Excerpts

Thursday 2nd February 2012 Commons Chamber

[Mr Clarke]

That is what this debate is for. MPs, and everyone else, are of course perfectly entitled to make whatever comments they wish about the criminal justice system, which, like every part of the public service, is accountable to Parliament, and ultimately it is Parliament that determines the framework of law by which the whole thing is conducted. It seems to have become rather fashionable nowadays for a running commentary to break out about a series of cases, and I think that we should be more sparing. I also think that anyone who comments on this or any other matter should ensure that they have the full facts before going out and giving a considered opinion, rather than just reacting to something they read over their morning coffee.

[Nicola Blackwood (Oxford West and Abingdon) (Con)]

Will the Lord Chancellor give way?

[Mr Clarke]

I will, but then I really must make some progress.

[Nicola Blackwood]

I thank the Lord Chancellor, who is being extremely generous, for giving way. His points about press sensationalism, the separation of powers and not wanting to have a running commentary from politicians are well made. However, I think that the lack of public confidence is not just due to a thirst for punishment beyond reason, because there is also the fact that reoffending rates are high. The point about sentencing is that we want it to be an effective deterrent against reoffending. At the moment, 49% of all prisoners reoffend within a year of release, and for adults released from short-term prison sentences the rate rises to 60%. We have to convince the public that our criminal justice system is effectively deterring prisoners from reoffending, which is not an issue of sensationalism.

[Mr Clarke]

I could not agree more. In fact, in so far as I have brought anything into policy since taking up my current post, it has to put much greater emphasis on reoffending, which is the biggest weakness of our system, but covering the full range of reforms would be outside the scope of the debate. The system punishes first of all, but it would serve the public better if it also led to the reform of more offenders, so that we could get reoffending rates down to a more respectable level. My colleagues and I are trying to address that in everything that we do in the Department of Justice.

It is relevant to the debate to consider what is most effective in deterring reoffending. Some people have held the belief for years, quite understandably, that in order to cut reoffending we must deter people by sending more and more to prison for longer and longer sentences. My personal opinion is that the evidence completely refutes that view. That approach does not work, particularly if it makes prisons overcrowded and unresponsive places where prisoners toughen up and meet some rough friends before being released to fend for themselves in the outside world. We are making more intelligent use of the prison estate so that, in addition to the punishment of confinement, there is a process of reform based on a working environment that tackles drugs, drink, mental illness and all the other things in order to lead people to behave when they are released.

--- Later in debate ---

[Mr Slaughter]

That would be a good point, if it were true. My colleagues and I visit prisons and young offender institutions around the country, every week and every month, and see excellent education work, and vulnerable and damaged young people gaining skills. We also see YOTs at work.

[Nicola Blackwood]

“Rehabilitation of Prisoners”, a Home Affairs Committee report from 2004, states that

“47%...of prisoners…spent no time in education and 31%”

spent

“no time in prison work.”

[Mr Slaughter]

The young lady—the hon. Member—quotes statistics, but she fails to give credit for the steps that were taken and the resources that were put in. I think I had better stop on that point before I say something else I might regret.

As I was saying, the Youth Justice Board and YOTs together ensured that a child-centric approach was embedded in our youth justice system. The Labour Government correctly said that the right way to cut youth offending and the number of young people in the secure estate was to stop them turning to crime in the first place. Labour’s approach was incremental, evidence based and properly resourced.

The Opposition understand that the Lord Chancellor’s reckless promise to lead the austerity charge means 20% cuts to YOTs in one year, but up to 60% cuts to their preventive programmes. We puzzled at the wanton attempt, which was abandoned only at the last hurdle, to abolish the YJB. At least the Government did not seek to abolish the Sentencing Council. I do not know why they did not do so, because it is a recent Labour innovation, and it is transparent and effective, and it gives coherence and yet flexibility to a key area of public policy. I would have thought it was ripe for the chop.

It is worth recollecting the recent history of sentencing policy to see how far we have come in a relatively short time. I do not disagree with the Lord Chancellor on the current operation of the Sentencing Council, but I shall go over its history to show how it developed. Prior to 2004, sentencing guidelines were laid down by the Court of Appeal criminal division in the form of guideline judgments, and beyond that advocates and sentencers were reliant on practitioner texts, primarily Thomas. The texts were effectively sentencing decisions in individual cases accompanied by a more general judicial commentary on sentencing ranges for the type of offence under consideration. In the words of Professor Ashworth, former chairman of the Sentencing Advisory Panel:

“A guideline judgment is a single judgment which sets out general parameters for dealing with several”

variations of a certain

“type of offence, considering the main aggravating and mitigating factors, and suggesting an appropriate starting point or range of sentences…This kind of judgment was pioneered in the 1970s...guideline judgments...set out a fairly elaborate framework within which judges should determine length of sentence…These judgments acquired authority from the fact that the Lord Chief Justice laid them down: they were intended to bind lower courts, and were treated as doing so...the key element is that they were intended and accepted as binding, in a way that most Court of Appeal judgments on sentence are not.”

The Court of Appeal criminal division’s guideline judgments covered both a limited number of specific offences and more general overarching sentencing principles. Guideline judgments were, however, relatively infrequent and by the late 1990s covered only a small proportion of offences.

The Crime and Disorder Act 1998 created the Sentencing Advisory Panel to solve a problem with the Court of Appeal system. When drafting its judgments, the Court of Appeal was constrained by the material on which reliance could be placed. The Sentencing Advisory Panel, chaired by a distinguished academic lawyer, was established to draft and consult on proposals for guidelines and to refer them back to the Court of Appeal for consideration and, in that way, to inform the issuing of a guideline judgment. The Court of Appeal was not obliged to accept the panel’s recommendations, but in most cases did so, sometimes with modifications.

The important feature was that the laying down of guidelines remained under the control of the senior judiciary. The Sentencing Advisory Panel was launched on 1 July 1999 as an advisory non-departmental public body, its role being to promote consistency in sentencing by providing objective advice to the CACD to assist it in framing or revising sentencing guidelines. The panel consisted of 14 members, including sentencers, academics, those with recent experience of the criminal justice system and lay people with no connection with criminal justice. They reviewed the applicable law and statistics and any relevant research and consulted on proposals before formulating advice. In its first five years of operation, the panel produced draft guidelines on about a dozen offences, which were submitted to the Court of Appeal. The Court acted on all but one of those advices, issuing guidelines in a subsequent decision.

In 2001, the Home Office published the Halliday report, which examined the sentencing framework in England and Wales and concluded that we should go further and set up an independent body—either the Court of Appeal sitting in a new capacity or a new judicial body set up for that purpose. The Government took that recommendation forward in the Criminal Justice Act 2003, which established the Sentencing Guidelines Council. The council was established by the 2003 Act and came into effect on 27 February 2004.