Transparency and Consistency of Sentencing

Gareth Johnson Excerpts

Thursday 2nd February 2012 Commons Chamber

[Gareth Johnson (Dartford) (Con)]

It is an honour to follow my hon. Friend the Member for Shipley (Philip Davies). I do not agree with every word he said, but he made some pertinent and correct points about honesty in sentencing. Perhaps I may add a further scenario to his list. I worked for the Courts Service, where I found that, for example, somebody could appear before magistrates on a Friday and receive seven days’ imprisonment for a fine default. However, as the sentence was automatically halved, and as the weekend counted in their favour and they could not be released during that time, the prison van would throw them out before they even got to prison. A person can be sentenced to seven days’ imprisonment and not spend a minute inside, and it is such dishonesty that, as my hon. Friend pointed out, angers many members of the public.

We all want consistency in sentencing, but we must recognise that we will never completely achieve that because it is impossible. No two offences are identical and there will always be differences in approach. As long as courts have discretion, there will be variation in how they deal with similar matters. If we remove that discretion, however, injustices will inevitably occur.

Members of the public view similar offences in differing ways, and we should not be surprised that often the judiciary will do the same. We want our judiciary to mirror the public, and just as the public have differing opinions about different types of offences, such variation can be reflected in our court houses. We need some consistency of approach, some basic similarities in decision making, and guidelines to help ensure that courts treat similar aggravating and mitigating circumstances comparably. We should never, however, be tempted to adopt a system that lacks discretion, flexibility, or the freedom to differentiate.

We need a degree of certainty, but not an over-prescriptive approach that removes a court’s discretion. For example, a defendant who has entered a guilty plea can expect to receive a reduction in their sentence of about one third. The court, however, should be free to increase or reduce that discount, as it deems appropriate.

In the magistrates courts, the principle of local justice administered locally has served us extremely well for centuries. Some offences are frowned on more in one area than in another, and local justices of the peace are best positioned to clamp down on an offence that is prevalent in a particular area. Although that system inevitably leads to an imbalanced approach across the country, in such instances a variable approach can be a positive thing.

As my hon. Friend the Member for Shipley pointed out, justice must always be the primary goal in the judicial system. If we were to replace judges, magistrates and jurors with computers, we would have a more consistent approach—there is no doubt about that—but we would also have less justice. Whenever people deal with cases, there will inevitably be discrepancies in how they view the facts placed before them.

About 20 Acts of Parliament have changed sentencing practice over the past decade, and it is perhaps not surprising that our system is often confusing and unnecessarily complex. Perhaps an overarching approach is needed, not a series of ad hoc measures to amend the current system.

The system need not be unduly complicated. Sentences are normally straightforward, but the processes behind them are often baffling and confusing, and can lack the transparency that this debate is trying to find. The maxim that justice must be done and be seen to be done is as necessary now as it has ever been. Yet nowhere can the term “six months”, for instance, have so little correlation to that actual period as in a court of law. I have spent more than 20 years working in the criminal justice system, and I have lost count of the number of times I have seen defendants turn to their advocate as soon as they are given a term of imprisonment and ask, “How long is that? How long does that actually mean for me? I have been told it is 10 years, but how long does that mean?” Sentences should be closer to the term specified, and there should be far more transparency and honesty in sentencing. It undermines the courts, the police and victims if the sentence that a prisoner serves bears no relation to the term that he has been given in court.

There are so many early release schemes that I know of no lawyer who can accurately tell a defendant how long a sentence will equate to in actual time served. It is simply too complicated. When a formula is needed to work out how much of a sentence a prisoner will actually serve, we know that there is something wrong with our system. That is precisely what happens now. The discipline departments in prisons have to apply a formula to a sentence to work out what somebody’s earliest possible release date is. That highlights the problem in our current system.

Sentences are one thing, but there are many other things for the courts to consider. There is no merit in having an inconsistent approach to the enforcement of court orders. We should not have one criterion for enforcing community sentences in the midlands and another for the south, and fine defaulters should not be treated differently in one part of the country from another. Prison overcrowding in one area should not mean an earlier release for prisoners there than for those in other areas. However, for general sentences, we should allow some differences. We have to allow local courts to have a certain amount of flexibility. The message should go out from this House that this debate is not about controlling the courts but about delivering fairness for all. We should not micro-manage the courts but allow clarity to flourish more. Minimum sentences for gun possession have worked, not just because of the certainty and deterrence that they have provided but because courts retain an element of discretion.

In short, we need to get the right balance, and in doing so we need to strive for a court system that allows certainty in sentences, flexibility in process and fairness in outcomes to prevail.