Transparency and Consistency of Sentencing

Debate between Rory Stewart and Robert Buckland

Thursday 2nd February 2012 Commons Chamber

[Mr Robert Buckland (South Swindon) (Con)]

I refer the House to my entry in the Register of Members’ Financial Interests.

The sentencing process will always be imperfect and flawed because it comes at the end of a process that starts with a crime being committed, a wrong being done, resulting in damage, death or injury, and whatever the sentencing process contributes, that wrong can never be put entirely right: the family of the victim of somebody who has caused death by dangerous driving, sitting in court, will never be able to recover what they have lost; the partner and children of a householder murdered in the course of a burglary will never be able to recover what they have lost; the victims of a household burglary, examples of which we have heard today, will never be able to recover what they have lost.

It is wholly wrong, therefore, for legislators, judges or anyone else involved in the process to claim too much of the sentencing process or suggest that it can right the social ills of our country. It can never do that. As my hon. Friend the Member for Penrith and The Border (Rory Stewart) reminded us, its function is more limited but still important, bearing in mind the duty of the state and the Government to protect the public. That is one of the functions of sentencing. The others are to punish offenders; where appropriate, to offer the hope of rehabilitation to offenders; to reduce reoffending; and to deter others. Those are the functions of sentencing, and we lose sight of them at our peril.

To be fair to the previous Government, they enshrined those principles in law, through the Criminal Justice Act 2003, which was perhaps one of the few wise decisions that they took. It seemed to me, and many others involved at the heart of the system, that many of the previous Government’s decisions were based on precious little evidence or analysis. I listened carefully to my hon. Friend the Member for Witham (Priti Patel) as she explained, as she always does, the case for victims of crime. As someone who was part of the system, as a lawyer and part-time judge, I know that it is easy to overlook victims in the process, because it is the state taking action against the individual, with the victim a mere player—a witness, if you like.

Those old nostrums no longer stand the test of time, which is why there is much merit in what my hon. Friend said about the voice of victims. Hence, I am a passionate supporter of restorative justice. Having seen the limitations of the court system and understood the lack of control that victims feel, I see in restorative justice a chance for those victims to regain control of the situation. Only a few months ago, I heard from the victim of a double rape, who told me and a rapt audience of about 100 people in my constituency about the first time she gained control of the situation. Having been brutally raped, she gave evidence in a trial that resulted in a successful conviction, but—understandably, perhaps—she was told at the end of the trial, “Thank you, you were a brilliant witness. That’s all.”

It might have been all for the criminal justice system, but it was not all for her, because she had to live with the consequences of what had happened—her job over, her family broken up, her life changed utterly. She said that when she met the perpetrator of the rape in prison, for the first time she had control over events. She felt that she was in the driving seat, that she was dictating the process and that she, although never being able to obtain full closure, was for the first time able to explain to the perpetrator of this dreadful crime the effect it had had on her. That is why I believe in restorative justice, and why I am delighted that the Government are committed to rolling out and enhancing this aspect of our system.

The Sentencing Council has come in for a degree of criticism today, and rightly so. My hon. Friend the Member for Penrith and The Border reminded us, most eloquently, that to reduce sentencing to a desiccated calculating exercise would be wholly wrong. Judges have to bring with them that element of humanity that is part of the human condition. When you sit in judgment on your fellow man or woman, Mr Deputy Speaker, you have to look them in the eye and judge them as one human being over another. Anyone who tries to rationalise that or limit those decisions to mere rationality does the system a disservice; indeed, they put it in danger. That is why we must never reduce sentencing to mere algorithmic calculation. However, that is the danger of the formulae that have been used in a number of guidelines issued by the Sentencing Council.

I enjoyed challenging Lord Justice Leveson about such matters when I described the new assault guidelines as the judicial equivalent of that game show “The Krypton Factor”—you may remember it, Mr Deputy Speaker, from some years ago—where hapless contestants had to crawl through an assault course and be challenged in a range of activities that seemed to baffle them and the presenter. My challenge was rebuffed, but I renew it in the Chamber today, because I firmly believe that the danger of guidelines is that because departing from them without proper explanation is a ground for appeal, they effectively fetter the discretion of sentencers. I have no problem whatever with trying to achieve a consistency of approach; and, to be fair to the right hon. Lord Justice Leveson, he agrees with that. He would be horrified if he thought that the courts system was somehow being reduced to mere arithmetic and calculation. However, the danger remains that with an over-emphasis on the guidelines—let us not forget that the court must, not “may”, have regard to the guidelines—we become over-prescriptive in sentencing.

[Rory Stewart]

Just to expand on that point, does my hon. Friend agree that, as the US Supreme Court found in the case of Booker and Fanfan, the distinction between mandatory sentencing guidelines and purely advisory guidelines is misleading and dangerous? As he is implying, what appear to be simply suggestions operate in practice as mandatory sentences.

[Mr Buckland]

That is absolutely right. We are often told that guidelines are not tramlines, but my worry is that as we develop the system, that will increasingly become the case, which is a matter of legitimate concern to us all. My hon. Friend rightly reminded us earlier about the historic role of the jury. In fact, it is interesting to remind oneself that in addressing juries, counsel will be enjoined not to talk to them about the likely sentence that may be passed on the offender, because that is to trespass not only on the function of the judge, but on the function of the jury. My hon. Friend is quite right to introduce into the debate that element of realism, common sense and public experience that juries bring to the court system. That is why they are there, why the system works and why we as parliamentarians support it, and vigorously so.

Having criticised some of the Sentencing Council’s functions, let me commend its research work. One of the better things that it has done is to start the process of looking at the decisions that are made in our Crown courts up and down the land, and to commission research on the attitude of the general public to sentencing. There are two reports in particular that I think the House would be interested to hear about, one of which I referred to in an intervention on my hon. Friend the Member for Shipley (Philip Davies). The report commissioned by the Sentencing Council and published in May last year by Ipsos MORI conducted a survey of just under 1,000 members of the public and interviewed offenders and victims of crime. Perhaps inevitably—but for the first time based on empirical evidence—the report quite rightly pointed out a number of key things, including that the public perceive the system as being too lenient, but that some of their concerns are allayed once they have a greater knowledge of the workings of the sentencing system. The points that have been made about greater transparency and awareness, and about the televising of proceedings, are all founded on the research that has been carried out. It is plain and simple: if we give the public a greater understanding of the system, they will give the system greater support.

I was fascinated by the public’s view on the reduction of a sentence in return for a guilty plea. They feel that we, the lawyers, are getting it back to front. They would understand and appreciate the system better if, instead of reducing sentences and giving people credit for pleading guilty, the court were to give longer sentences to those who plead not guilty and string the process out, only to be convicted at the end of a trial. They do not like the notion that offenders are somehow being rewarded for having admitted their guilt. That was a fascinating insight that we, as legislators, should bear in mind. Indeed, the Sentencing Council should also take it into account when it reviews the system of credit being given for a guilty plea.