Posts Tagged ‘Sentencing Council’
A Smarter Approach to Sentencing: the Government’s White Paper, 2020
Devising effective sentencing policy is hard. Ministers are often under great political pressures to deal with matters of public concern, which leads to frequent changes in sentencing law. This in turn can make the law hard to find and apply. The Sentencing Act 2020 is about to get the Royal Assent. Once in force it will provide a Code – an uptodate framework available online – within which new policies and changes to the law can be set.
Even before the ink has dried on the new Code, changes are in the pipeline. The Counter Terrorism and Sentencing Bill 2020 is well on its way through the Parliamentary process. (See https://martinpartington.com/2020/07/22/counter-terrorism-and-sentencing-bill-2020/)
More radical change is now promised by the White Paper on Sentencing, A Smarter Approach to Sentencing, published in September 2020.
It is a substantial document – reflecting a number of commitments made by the Conservative party in its election manifesto 2019 – on which the Government will be consulting over the next 12 months. A Bill is not anticipated until 2021.
The White Paper states that it is seeking to address three issues of public concern:
- Automatic Release: Sentences passed by judges and magistrates in the courts are criticised, often not for their overall length, but for the shortness of the time offenders actually spend in custody. The blanket use of automatic early release has, in the Government’s view, undermined confidence in the system. Too many serious and dangerous offenders are still released too early from custody; this risks public safety, and means the time spent in prison does not always properly fit the crime. The Counter-Terrorism Bill mentioned above deals with some of the issues; the White Paper argues for a more general policy to apply to all dangerous offenders, not just terrorists.
- Improving Confidence: Confidence in non-custodial sentencing options is low. The Government wants to gain greater confidence in the delivery of community sentencing. This is essential to reduce the prison population. Sentencers and the public need to be sure that there are effective non-custodial options, particularly for low-level offenders. The Government also wants to ensure that a wider range of non-custodial sentencing options are available to the courts, by capitalising fully on Electronic Monitoring technology, alongside enhanced community supervision delivered by a reformed National Probation Service and an expanded use of existing non-custodial conditions.
- Addressing the Causes of Offending: The Government wants to do more to address the causes of offending, particularly where it is driven by drug and alcohol misuse. In 2018/19, 28% of men and 42% of women entering prison reported having a drug problem. These issues are associated with offending, particularly low-level, repeat offending. Whilst there have been routes available to help treat and manage these needs in the justice system, as well as mental health needs, there have been too few options available to sentencers, and not enough confidence in the quality of these services.
The changes proposed in the White Paper are numerous. They include:
1. Introducing whole life orders for child killers, as well as allowing judges to hand out this maximum punishment to 18-20-year olds in exceptional cases to reflect the gravity of a crime. For example, acts of terrorism which lead to mass loss of life.
2. Introducing new powers to halt the automatic release of offenders who pose a terrorist threat or are a danger to the public.
3. Reducing the opportunities for over 18s who committed murder as a child, to have their minimum term reviewed – ensuring they cannot game the system and torment victims’ families further.
4. Ending the halfway release of offenders sentenced to between four and seven years in prison for serious crimes such as rape, manslaughter and GBH with intent. The Government proposes that they should have to spend two-thirds of their time behind bars.
5. Increasing the starting point for determining sentences for 15-17 year olds who commit murder from a minimum of 12 years to two thirds of the equivalent starting point for adults.This would ensure that the seriousness of the offence is taken into account and there is less of a gap between older children and young adults.
6. Longer tariffs for discretionary life sentences. Increasing the minimum period that must be spent in prison by requiring judges to base their calculation of the tariff on what two-thirds of an equivalent determinate sentence would be, rather than half as they do now. This will mean life sentence prisoners serve longer in prison before they can be considered for release by the Parole Board.
7. Raising the threshold for passing a sentence below the minimum term for repeat offenders, including key serious offences such as “third strike” burglary which carries a minimum three-year custodial sentence and “two strike” knife possession which has a minimum six-month sentence for adults. The should make it less likely that a court will depart from these minimum terms.
8. Piloting Problem Solving Court models in up to five courts, targeted at repeat offenders who would otherwise have been sent to custody.
9. Making full use of tagging technologies to create a tough restrictive order in the community. To support rehabilitation, courts and probation staff will have greater flexibility to impose curfew orders.
10. Piloting new ways of delivering timely and high-quality Pre-Sentence Reports.
11. Introducing new legislation to create the possibility of life sentences for drivers who kill.
12. Doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years.
The White Paper also proposes reforming criminal records disclosure to reduce the time period in which offenders have to declare offences to employers.
The full details of the White Paper are at https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing
This entry is adapted from the Government Press Release: at https://www.gov.uk/government/news/radical-sentencing-overhaul-to-cut-crime
Whither the Sentencing Council?
Many Government consultation are on rather specific issues. The consultation considered here is rather different, designed to encourage some rather more blue-skies thinking about the work of the Sentencing Council.
It has been launched because 2020 marks the 10th anniversary of the establishment of the Sentencing Council for England and Wales. During that time it has produced 27 sets of definitive guidelines encompassing 145 separate guidelines that cover 227 offences and eight overarching topics.
As the accompanying press release notes: “Developing guidelines is a collaborative process; as well as input from Council members and the small multi-disciplinary team who support its work, it relies on the cooperation of individuals and organisations working in the criminal justice system and beyond to ensure that it has the fullest information possible to draw on.”
Over the years, thousands of magistrates and judges have completed surveys or participated in detailed research, providing the Council with evidence which underpin the guidelines. It has held more than 30 public consultations, which have received almost 4,000 responses.
In addition to producing guidelines, the Council also: publishes research and statistics on sentencing; seeks to promote public understanding of sentencing through information on its website; provides educational materials for use in schools; and works with other organisations, for example the police.
The stated purpose of the consultation – which opened in March 2020 – is not to look back (though obviously it reflects on the work of the Council to date), but to look forward. It is asking all those with an interest in criminal justice and sentencing to contribute to a discussion on what the Council’s future objectives and priorities should be.
The Consultation runs until mid September 2020.
It can be found at https://consult.justice.gov.uk/sentencing-council/what-next-for-sentencing-council/
Enacting the Sentencing Code
In 2018, the Law Commission published the final report on one of its largest law consolidation exercises – the creation of a Sentencing Code. The Sentencing Code does not make new law, but consolidates into a single place all the law relating to sentencing.
The law on sentencing was spread throughout a large number of enactments. It had become particularly complex because changes in the law often resulted in earlier pieces of legislation being repealed except for specific provisions relating to sentencing. Thus the law applicable to any particular offence could be very hard to discover. Indeed, it was so hard to discover that, in 2012, an analysis of 262 randomly selected cases in the Court of Appeal (Criminal Division) found that 36 percent had received unlawful sentences. The Law Commission attributed these results to the level of complexity in the existing legislation.
In order to achieve this outcome, two pieces of legislation are required:
- The Sentencing (Pre-consolidation Amendments) Act 2020
- The Sentencing Bill
Sentencing (Pre-consolidation Amendments) Act 2020
This is a very technical piece of legislation which amends current law so that it is brought into a state to be consolidated when the Sentencing Code itself comes into effect (which will be on 1 October 2020). Once the Code is effective, the pre-consolidation Act becomes redundant.
The Sentencing Bill 2020
The Sentencing Bill which contains the Sentencing Code is a consolidation bill. It does not therefore need to go through the normal Parliamentary Process. Instead it is considered by a specially constituted Joint Committee on Consolidation Bills. At the time of preparing this note, the Bill has been introduced into the House of Lords where it has received its second reading. However, the Joint Committee has not yet been established.
Sentencing code: structure
The code is set out in Parts 2 to 13 of the bill. The code’s structure follows the chronology of a sentencing hearing, as follows:
(a) Before sentencing:
• Part 2 is about powers exercisable by a court before passing sentence.
(b) Sentencing:
• Part 3 is about court procedure when sentencing.
• Part 4 is about the discretion a court has when sentencing.
(c) Sentences:
• Part 5 is about absolute and conditional discharges.
• Part 6 is about orders relating to conduct.
• Part 7 is about fines and other orders relating to property.
• Part 8 is about disqualification.
• Part 9 is about community sentences.
• Part 10 is about custodial sentences.
• Part 11 is about behaviour orders.
(d) General:
• Part 12 contains miscellaneous and general provisions about sentencing.
• Part 13 deals with interpretation.
As a consolidation bill does not alter the law, there are no explanatory notes. However the House of Lords Library has provided an excellent short introduction to the Bill, available at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0084/
What about new offences or new sentences? Keeping the Code up to date
As is well known, Governments frequently change the criminal law, adding new offences of amending existing ones. Henceforth the sentencing implications of such changes are to be dealt with by way of amendments to the Sentencing Code. The intention is that the Code will automatically be updated as new sentencing provisions are enacted. One of the first examples of changes to the Code can be found in the Counter Terrorism and Sentencing Bill 2020, currently before Parliament. See https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing/documents.html
Up to date electronic versions of the Code will be available online.
The role of the Sentencing Council
Sentencing powers give sentencers considerable discretion. The role of the Sentencing Council, giving guidance on how that discretion should be exercised, is unaffected by the Sentencing Act and the creation of the Sentencing Code.
Mental health and Fair Trial
Since 2015 the Human Rights group JUSTICE has produced a remarkable series of reports on different aspects of the justice system. (I declare an interest; I am a member of the JUSTICE Council.)
Their report Mental Health and Fair Trial was published in November 2017. in it, it outlined the precarious position vulnerable people may be in when confronted by the criminal justice system.
Since the JUSTICE reports are written by specialist sub-groups with specific knowledge of the issues raised, the recommendations they propose are aimed at dealing with practical challenges faced by those working in criminal justice. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.
The report argues that ‘argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.’
The report makes over 50 recommendations for change grouped into the following broad categories.
1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.
Although the report was launched with strong support from the Lord Chief Justice, it is not known whether the Government or other agencies mentioned in the report have actively taken forward these recommendations. But they deserve careful consideration.
The report is available at https://justice.org.uk/mental-health-fair-trial/
Stricter guidance for sentencing offenders who plead guilty
One of the issues that the criminal justice system faces is to decide what incentives should be offered to those who are being prosecuted through the courts to plead guilty.
Legislation has for many years provided that sentencing discounts for early guilty pleas should be applied. (Criminal Justice Act 2003, s 144). Gudidance on how the power should be exercised was published in 2007.
It will do this by maintaining the current level of reduction (one third) for those who plead at the first stage of court proceedings, but giving a lower reduction than that available currently for a guilty plea entered any later in proceedings.
The stage at which an offender can benefit from the maximum one-third reduction will be much more tightly defined.
Under the Council’s proposals, to qualify for the maximum reduction, an offender must plead guilty the first time they are asked for their plea in court.
For offenders who plead guilty after that first stage the maximum reduction they can be given will be reduced to one-fifth, compared to one-quarter under the current process. Reductions then drop further the closer to the trial date the plea is entered.
It should be stressed that the reduction is expressed as a maximum – judges can deviate from the guidance in particular cases. Special considerations apply to murder cases.
The object of the proposed reforms is to try to ensure that more cases are dealt with by guilty plea, thereby reducing the resources required for trials.
The final guidance will be published following completion of the consultation, which runs until the middle of May 2016.
For further details see https://www.sentencingcouncil.org.uk/consultations/reduction-in-sentence-for-a-guilty-plea-guideline-consultation/
More criminal trials to be heard in the magistrates’ court
Early in 2016, there was an announcement that more criminal cases would be dealt with in the magistrates’ courts, rather than being sent to the Crown Court.
The source for this announcement was not a new piece of legislation, redrawing the boundaries between cases heard in these two courts. Rather, it was the announcement that, from 1 March 2016, the Sentencing Council was issuing ‘definitive guidance’ on how cases triable either way – i.e. summarily (in the Magistrates’ Court) or on indictment (in the Crown Court) were to be allocated.
One of the key recommendations of the Leveson Review of Efficiency in Criminal Proceedings was
“Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates [emphasis added] that either way offences should be tried summarily unless it is likely that the court’ssentencing powers will be insufficient. The word “likely” does not mean “possible” and permits the court to take account of potential mitigation and guilty plea, so can encompass cases where the discount for a guilty plea is the feature that brings the case into the Magistrates’ jurisdiction. It is important to underline that,provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does notfetter discretion to commit for sentence even after requesting a pre-sentence report”.
1. In general, either way offences should be tried summarily unless:• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence.Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.3. Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.4. All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence.
The guideline aims to bring about a change in culture and will inevitably provide some challenges, but the Council is confident from the responses to the consultation that the guideline will be welcomed by sentencers and will play a role in ensuring that justice is delivered fairly, swiftly and efficiently in more cases.
Increasing sentencing powers of magistrates
In the Legal Aid, Sentencing and Punishment of Offenders Act, 2012, provision was made (section 85) to give magistrates greater flexibility in the fines that they may impose. Offences are divided into 5 levels – the least serious are level 1 offences, the most serious level 5. Up to now, the maximum fine for level 5 offences has generally been £5000 (although there are special circumstances where the maximum is set at a higher level). Regulations have now been made and brought into force (15 March 2015) whereby, for offences which attract a level 5 sentence, magistrates now have power to impose fines without any cap being imposed.
This will mean that in cases where magistrates want to impose higher fines for level 5 offences, they will no longer have to send cases to the Crown Court for sentence.
Magistrates who want to impose a prison sentence of more than 6 months still have to commit such cases to the Crown Court for sentencing.
The fact that magistrates in future will have increased sentencing powers will not mean that they will automatically be increasing their sentences; indeed this is likely to happen in only a small number of the most serious cases.
The Sentencing Council gives detailed guidance on the appropriate amount of fines to be imposed within each level . These relate both to the seriousness of the offence and the means available to the defendant. See
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 