Transparency and Consistency of Sentencing

Sarah Newton Excerpts

Thursday 2nd February 2012 Commons Chamber

[Sir Alan Beith]

The hon. Gentleman’s constituent has obviously had a terrible experience, but we should all resist the temptation, in this place and elsewhere, to comment on particular sentences when we do not know all the circumstances in which they were given. If the sentence in a particular case is not appropriate, the Attorney-General has the power to return to the courts and seek a longer sentence, a point that the Lord Chancellor made earlier.

The second purpose of sentencing is deterrence, but the effectiveness of deterrence is often exaggerated. The fact is that when they commit offences, most criminals, first, think that they will not be caught and, secondly, do not have much idea what the sentence will be if they are. Therefore, sentencing is not usually a matter that is firmly in criminals’ minds when they commit offences in the first place. There are many circumstances where the function of deterrence in sentencing is exaggerated. It is there, and it has a role to play. For example, after the public disorder last summer, there was a legitimate reason to believe that unless we made people realise that the offence of theft in the context of public disorder would be treated very seriously, there might be a failure to understand how the courts were going to deal with such matters. There was a deterrence aspect in that case, but there are many offences where deterrence plays no role at all, even though it is one of the legitimate purposes of sentencing.

That brings me to the third purpose of sentencing, which is punishment. Punishment is a wide concept, because it involves the community declaring that it rejects and abhors crime with all its harmful effects. We sometimes fail to understand that purpose of sentencing. One reason why people react as they might have done on reading in the newspaper about the case that the hon. Member for Peterborough (Mr Jackson) raised a moment ago is that they think the court has not demonstrated how seriously the community takes a crime of that kind.

[Sarah Newton (Truro and Falmouth) (Con)]

I could not agree with my right hon. Friend more. Does he agree that the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the other place, firmly demonstrates the Government’s commitment to that principle in relation to the crimes of sexual exploitation and paedophilia, by clearly saying that two thirds of a sentence must be served and that if somebody goes on to perpetrate another horrendous crime of that nature, they should receive a life sentence?

[Sir Alan Beith]

Yes, but there is also a public safety aspect to the kind of cases that the hon. Lady has described, in that they may involve criminals where the likelihood of their not reoffending is very low and where long, determinate sentences are therefore appropriate. However, the problem with this very necessary part of sentencing is that it can lead to a tension between society declaring very clearly that it will not put up with something and what would be likely to lead to that person not reoffending—I am not thinking of the kind of case to which she has just referred, but a much broader range of crimes.

Understandably, the public read about crimes and compare how different ones are treated by the courts; indeed, we all do that. We want to be sure that the worst crimes are taken the most seriously. Prompted by media reports in particular, the relative seriousness issue tends to be judged according to whether a sentence is a prison sentence and how long it is. Such sentences might not be the right answer for every case, however. The likelihood of reoffending could be greatly reduced in some cases by tackling a drug or alcohol problem, for example. If that is not done, it does not matter how long the person is kept in prison, because they will commit further offences when they come out, fuelled by their problem. The judiciary therefore has to bear in mind all the purposes of sentencing. Considerations of public safety, deterrence and punishment must all inform each decision.

In the light of those principles, we should also consider how the judicial processes work. We want them to enable the most effective sentences to be available and to be applied. As I mentioned earlier in a different context, however, we have a weak evidence base for allowing the judiciary to determine whether sentences have been effective. Few judges are able to tell how the sentences that they have passed have worked out in practice, or whether they have had the desired effect. The exceptions are those cases in which an offender comes back before the court. We need to deal with that evidence problem.

We have also seen a lack of effective management of sentencing and post-release provisions. The Government have set about improving that situation, and the Committee very much welcomes that. We have discussed in some detail the payment by results model and other ways in which the Government have sought to ensure that people coming out of prison have access to provisions that actually work. We cannot achieve that, however, if our prison system is in turmoil. A system in which people are simply shunted around in order to create spaces for other prisoners is the enemy of effective sentence management.

There is an institutional bias in the system in favour of the use of custody, regardless of whether it is the best option. If a judge or magistrate passes a community sentence, the first question has to be, “Are the necessary facilities available in this area?” That applies to residential provision for tackling a drug problem and to the various kinds of community disposal. We have to ask what is available. If a custodial sentence is passed, however, the prison van rolls up outside and the prisoner is taken away. The judiciary can be confident that that will happen, although it might not know where the prison place will be found. The system will find a place somewhere, however, and there is an institutional bias in the system in favour of such disposals.

Custodial sentences and non-custodial sentences are commissioned by different people. The commissioning of custodial sentences is a national function, carried out by the National Offender Management Service largely on a national basis. There is an attempt to provide prison places locally, but in practice, prisoners are often circulated and shunted around. Non-custodial sentences are commissioned much more locally. In the case of youth custody, we have seen how much more effective the process can be when it is handled locally. My Committee has regularly sought to interest this Government and their predecessor in the idea of more local commissioning of custodial and non-custodial disposals, so that a balance can be struck more locally. Clearly, there will still be a need for responsibility to be taken at national level for high-security prisons and other specialised services, but local commissioners could buy into that provision. In many areas, including the health service, this Government and the previous one have seen the value of a separation between commission and provision, and it seems strange that that is still not fully appreciated within the Ministry of Justice.

I want to refer to one of our Committee’s earlier reports, “Cutting crime: the case for justice reinvestment”, which was published not long before the general election in 2010. It was very well received and is still much quoted, which we find gratifying. The report identified a never-ending cycle of spending money on the punishment of offenders whose crimes we ought to have been able to prevent from happening in the first place. If we had spent the same amount of money on diverting young people away from criminality into positive activity, on education, particularly for those whom the education system has failed, on intervention to deal with problem families and on very early intervention for young children, we could have prevented some of the crimes. Instead, we are spending money on incarcerating the people who committed them.

I very much welcome what the Government are doing—particularly on the latter two issues I have mentioned thanks to the efforts of the Minister of State, Department for Education, my hon. Friend the Member for Brent Central (Sarah Teather)—in insisting that even in these straitened times, we must find money for early intervention and early access to education, especially for those in deprived circumstances. I welcome that commitment.

The theme of our report, which has sadly been overtaken in this respect by the circumstances in which we now find ourselves, was that there should be a real resources shift from the custodial system into crime prevention. On this issue, people often say, “You can’t do that because the crime has happened,” but if we do not start in some way to inject and invest money at the stages where people’s propensity to commit crimes begins, we will continue to have to spend more and more money dealing with the consequences of crime.

We had, of course, hoped that financial circumstances might allow the money to start that process moving to come from elsewhere, but they have not allowed that— except to the limited extent to which the Government have been able to invest in early years education. The Ministry of Justice has thus had to find from within its own budget money to spend on more preventive measures. It is not just a matter for the Ministry of Justice, because it also involves the Department for Education, the Department of Health and a whole series of Departments whose expenditure decisions will determine whether some of our constituents are victims of crime in the future. Only to the extent that they divert those most likely to commit crimes away from that course will we achieve the purpose of preventing crime and promoting public safety.

The purpose of the sentencing system, as viewed here from the perspective of parliamentarians, must surely be the protection of our constituents—keeping our constituents safe. We should spend public money on sentences that cut crime rather than on the grim and often devastating consequences of crime. That is the principle towards which I believe all Governments should work, and I hope that this Government will work towards it.