4 Sentencing
28. The Coroners and Justice Bill proposes abolishing
the current Sentencing Advisory Panel and Sentencing Guidelines
Council and creating a single "Sentencing Council for England
and Wales". The new council will execute the roles of the
current bodies in consulting upon, formulating and publishing
guidelines but undertaking a single round of consultation. In
addition, the reformed Council will have new responsibilities
to:
- monitor the operation and effect
of its sentencing guidelines, including with regard to their impact
on promoting public confidence; and
- publish information on sentencing practice in
local areas.
29. The bill also places duties on the new Council
to assess the impact on prison places and probation resources
of its own draft guidelines and of Government policy and legislative
proposals referred to it. It is not clear, however, whether the
Council may assess the impact of existing policies and legislative
provisions. The Council's annual report must also contain a "sentencing
factors" report—setting out how changes in sentencing
practice are likely to have an impact on demand for prison and
probation resources—and a "non-sentencing factors"
report which considers how other factors, such as recall to prison
or breach of orders, are likely to affect the resources needed
to give effect to sentences. The bill also changes the duties
of the court so that sentencers would be required to "follow"
relevant guidelines, where currently they are only to "have
regard" to such guidelines.
30. We reported on sentencing policy in July
2008 in Towards effective sentencing (Fifth of 2007-08)
looking at, amongst other things, the evolution of Government
policy on sentencing via successive statutes. At the very heart
of the debate is a consensus that the prison population is growing
too fast and that custody, especially short sentences, is not
an effective approach for many offenders in terms of achieving
rehabilitation or reform; with prison often characterised as "an
expensive way of making bad people worse"[24].
31. The origins of the provisions in the bill
on sentencing guidelines lie in the review of the use of custody
in England and Wales that the Government commissioned Lord Carter
of Coles to undertake in 2007. In December 2007 Lord Carter published
his report entitled, Securing the future: proposals for the
efficient and sustainable use of custody in England and Wales
which recommended a twin-track approach. On the supply-side,
he recommended a significant increase in prison capacity; the
titan prison programme. On the demand-side, in addition to a raft
of medium term measures, he recommended a study of the merits
of establishing a sentencing commission to implement a structured
sentencing framework which might relate sentencing to available
resources. That study was undertaken at high speed and reported
in July 2008.[25]
32. In our Towards effective sentencing report,
we recorded our concern that an over-ambitious timetable had been
set for the working group on a sentencing commission and recommended
that "the Government should not seek to implement major changes
in this area without effective evaluation of the potential consequences
and the resources required to make such changes effective."
We remain of this opinion. Accordingly, we
recommend the most careful consideration of those provisions of
the Coroners and Justice Bill relating to the remit of the new
Sentencing Council for England and Wales.
33. This Committee, and its predecessor, has
had responsibility for the scrutiny of draft sentencing guidelines
which was formerly the role of the Home Affairs Committee.[26]
However, the role of Parliament in considering sentencing guidelines
has never been formally set down and existing arrangements are
in place by mutual agreement between the Committee, the Ministry
of Justice and the current Sentencing Guidelines Council. The
potential for formal submission of draft sentencing guidelines
to Parliament for approval, as is to be the practice in New Zealand,
was a matter of debate within the sentencing commission working
group and resulted in minority and majority recommendations. A
minority believed that parliamentary approval would give such
guidelines greater democratic legitimacy but the majority felt
that this constituted a "significant and unwarranted change
in the relationship between Government and Parliament on the one
hand and the judiciary on the other" and would inevitably
result in the politicisation of the guidelines.
34. By convention this Committee
has been consulted by the Sentencing Guidelines Council in advance
of the issue of new definitive guidelines; and has taken evidence
in specific instances when appropriate and practical to do so.
It is not clear from the face of the bill what role is envisaged
for Parliamentary scrutiny of draft guidelines in the future.
In our view it is essential for Parliament to continue to be involved
in the process whatever new structures are put in place.
24 Uncorrected transcript of oral evidence taken before
the Justice Committee on 18 November 2008, HC (2007-08)425-x,
Q 488 Back
25
Sentencing Commission Working Group, Sentencing Guidelines
in England and Wales: an evolutionary approach, July 2008 Back
26
See, for example, Justice Committee, Session 2007-08, HC 407-I
(Causing Death by Driving) and HC 649-I (Theft and Burglary (non-dwelling)) Back
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