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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
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Taken before the Justice Committee
on Tuesday 14 December 2010
Sir Alan Beith (Chair)
Mr Robert Buckland
Mrs Helen Grant
Mr Elfyn Llwyd
Examination of Witness
Witness: Lord Justice Leveson, Chairman, Sentencing Council, gave evidence.
Chair: Welcome, Lord Justice Leveson. Apologies that your nameplate is inaccurately designated. You are obviously familiar with this Committee from earlier encounters. In your role as Chairman of the Sentencing Council, we want to explore the new draft sentencing guidelines on assault and also one or two wider issues around the Sentencing Council and the sentencing process. I am going to ask Claire Perry to open the questioning.
Q36 Claire Perry: Sir Brian, thank you so much for joining us today. I declare my interest as a non-lawyer, so forgive me if the questions are not perfectly phrased in judicial language. What I am struck by is that this is a relatively new system, introduced I believe in 2009, in terms of the changes. It was introduced, I suppose, without a very significant fact and evidence base that this would be both cost-effective and more effective in terms of sentencing, which doesn’t mean it was the wrong thing to do. I am interested as to whether these guidelines and any future guidelines will have to be revised, as your evidence base improves, based on the application of the current framework.
Lord Justice Leveson: Thank you. I have no doubt that they may very well fall for revision, but I think it is quite important to put the Sentencing Council into context. Our tradition of sentencing practice has been to use decisions of the Court of Appeal Criminal Division as examples of the appropriate sentence to pass in specific cases. It was in the 1970s that I think Lord Justice Lawton first put together what was thought to be a novel idea, namely, to give some general advice about sentencing in bank robberies. Then in the early 1980s Lord Lane-the then Lord Chief Justice-did the same in relation to drugs offences in a case called Aramah, which we still cite regularly today. That created the practice of the Court of Appeal providing guideline judgments that were intended to influence judges across the range.
The problem, of course, is that the Court of Appeal has no research arm and consists of judges who are deciding the cases in front of them. In 1998 Parliament legislated to create the Sentencing Advisory Panel, which was a research arm for the Court of Appeal, chaired by an academic. They provided material for the Court of Appeal to inform them and so assist in the devising of better structured guidelines. That worked very well. Indeed, I sat in a Court of Appeal that adopted a Sentencing Advisory Panel guideline on handling stolen goods. The case is Webbe and others. In 2003, in the Criminal Justice Act, Parliament decided that we ought to let a body devise guidelines. That led to the Sentencing Guidelines Council, chaired by the Lord Chief Justice, predominantly consisting of judges but with some non-judicial input for the first ever time. Those guidelines have been recognised and used by judges and lawyers consistently thereafter. The law required that the judges have regard to the guidelines, but in that way the idea was to create a greater consistency of practice.
In 2009, by the new Act, the two bodies were put together. That allowed us to look again at the way in which we promulgated guidelines to see what worked and what didn’t work, and what might work better. I have no doubt at all that this is an iterative process. As we get more evidence, so we will be able to revisit guidelines. Indeed, with regard to the guideline on assault on which we are consulting, there is a previous guideline from the SGC. We are seeking to learn from the experience and both develop a new approach and modify the approach. It is a very good example of the iterative process that I think the development of guidelines will be.
Q37 Claire Perry: Thank you very much for the helpful explanation of the evolution. I think all of us would agree that having consistency in sentencing and also a commitment to evidence collection and iteration of policy is a good thing in general. I notice that one of the current ways of collecting evidence is through the one-page questionnaire that is dished out to Crown Court judges. They are asked to fill it in. Do you think that is the most effective way of getting feedback on the current sentencing thinking and process, or do you suspect that there might be other methods used in the future?
Lord Justice Leveson: The Crown Court Sentencing Survey is the first ever national collection of evidence as to those factors which influence judges when they pass sentence. There are a number of ways in which the data could be collected. I suppose it would be possible to have somebody who understood the system sitting in every single court in the country ticking off or creating a far more comprehensive survey, but nobody would suggest that that was a system which would not be extremely expensive. In an attempt to try to get information about what factors influence sentencers we have created this form.
The background to it was some work done by Lord Justice Gage, who was part of the Sentencing Commission Working Group. You will remember that Lord Carter started the process off when he was looking at the problems of the prison population. He suggested a grid-like approach to sentencing. The upshot of that was that a working group was set up under Lord Justice Gage to look at the Minnesota grid, and others, and to make some recommendations. They are the body that recommended the Sentencing Council. To get some evidence, they tried in 10 courts to get some information about sentences. I remember seeing the original form that they produced. I think it was 30 pages long. The prospect of getting a judge to fill in a 30-page form was not high. The form was reduced, but even then it was 10 pages and had a lot of resistance, understandably. Judges are going to court to sentence and to deal with the cases in front of them. With very pressured lists and the problems of coping and trying to deal with all the aspects of the case in front of them, it is a very real issue to ask them to fill in a substantial document as well.
Q38 Claire Perry: What was the response rate like on the one-pager?
Lord Justice Leveson: On the 10-pager not as high as I would have liked. On the one-pager the information we’ve got to date-and it’s very soft information for a reason which I will explain-is that we’ve had a response rate of 70%. In some courts it has been very much higher; in some courts it has been rather lower. The data is quite difficult to analyse because, when I was last told, we hadn’t got actual figures for the cases that had gone through the court in the various categories. All we had was last year as a comparison. The 70% is the return rate based on last year’s case throughput and we are waiting for information from HMCS in order to get the like-for-like comparison. In the meantime we will be seeking to persuade those courts to help, where the response rate was not as high as we would have wished. The Lord Chief Justice has been very much behind it. It is the only way we will really learn what factors influence sentencing. That will improve our understanding and thereby improve the quality of the guideline that’s the next iteration. This is not going to happen overnight; it is going to take a long time to get the data that we really need that will make a difference.
Q39 Chair: Isn’t there more important evidence that is needed-not just how judges come to pass sentences but what the effect of sentences is, both in terms of cost-effectiveness and in particular in terms of reducing reoffending?
Lord Justice Leveson: Yes. We have to be rather careful about what our role is. We are required by section 120(11) of the Coroners and Justice Act 2009 to have regard to the cost of different sentences and their relative effectiveness in preventing reoffending.
Q40 Chair: You need some evidence on that, don’t you?
Lord Justice Leveson: First of all, we have to decide what it means. We interpret it to mean that in formulating the guidelines we must take into account the current state of the evidence on the effectiveness of different types of sentence. We have tried to do that in the formulation of the draft assault guideline. What we are not required to do, as I read the legislation, is to try to forecast the impact of guidelines on reoffending rates. If one considers it, that is a tremendously difficult job. It not only requires us to think about what impact our guidelines might have on sentence requirements-on probation and prison places-but also, down the track, whether a particular sentence changed somebody’s offending behaviour as opposed to a different sentence. I’m not sure how we can necessarily reflect that in a guideline. What we have to do is look at effectiveness of sentences, but that is rather different from looking at how guidelines actually alter behaviour six months or two years down the track. We will use whatever data is available for that, but I am not sure how we can collect data or analyse for ourselves the material that causes people to turn away from crime. We can look at whether probation is effective or whether prison is effective in certain cases, and reoffending.
Q41 Chair: Do you mean cases or types of offence?
Lord Justice Leveson: Cases and types of offence. Types of offence are easier than individual cases because the micro is extremely difficult. But I do doubt that the Sentencing Council can enter the enormous question of whether a guideline will affect reoffending down the way for any individual, or even necessarily for any offence, as opposed to making best use of the evidence that there is about what causes reoffending.
Q42 Chair: Clearly you can only use evidence which has been collected by research bodies and others as it is. If the sentencing guidelines made normative a sentence which had been shown to be particularly ineffective for that type of offence, then surely you have to take account of that when revising the guidelines, do you not?
Lord Justice Leveson: I agree. One of the things that the Act requires us to look at is the relative effectiveness in preventing reoffending. If a sentence is not at all effective in preventing reoffending, then one would have to look at that. But, on the other hand, it is important to bear in mind that we are not just concerned with effectiveness against reoffending. We are looking at punishment. We are looking at the range of purposes of sentencing that are set out in section 142 of the Criminal Justice Act 2003, which is: punishment; the reduction of crime (including reduction by deterrence); reform and rehabilitation; the protection of the public; and the making of reparation. There is a whole number of issues that go into the mix that we have to take into account when we devise sentencing.
Q43 Chair: Let me just take another example from your list, which is deterrence. What is your evidence base on the deterrent effect of particular sentences?
Lord Justice Leveson: All we can do is look and see what’s in the academic literature.
Q44 Chair: Do you? I am generally trying to establish what the link between the evidence and the Sentencing Council’s decisions is.
Lord Justice Leveson: The link between reoffending and sentences, absolutely.
Q45 Chair: No; I was asking about deterrence.
Lord Justice Leveson: Certainly; I am sorry, yes. If there was no evidence that a particular sentence had a deterrent effect, that would be relevant when we come to devise a sentencing guideline. I can think of a particular example that we are presently considering, so I am not prejudging what the Council will eventually decide. As you are probably aware, the Sentencing Advisory Panel issued some advice to what was the SGC, but which we’ve taken up, in relation to drugs. One of their issues was the sentences for mules-these inadequate and usually rather pathetic people who bring in drugs from foreign countries. One of the questions which we will have to consider is what the evidence is that the type of sentences presently handed down for that offence deter those who are in these foreign countries from committing these offences. What drives the prospect of persuading them not to?
Q46 Elizabeth Truss: I wanted to move on to talk about the efficacy of the Sentencing Guidelines Council in terms of reducing inconsistency in sentencing. Is there any evidence, since the Sentencing Guidelines Council was introduced, about where the most inconsistency and discrepancy was?
Lord Justice Leveson: There is evidence about the different patterns of sentencing behaviour in different parts of the country. One of the most important features of the work of the Sentencing Council as far as I am concerned is to create a consistent approach to sentencing across the country so that the same approach is adopted to sentencing-whether you are being sentenced, if I move from west to east, in Bristol, Bolton, Birmingham or Basildon, the approach will be the same. Every individual sentence will always be an individual exercise of discretion, but one of the things that we are trying to do is to find a way of encouraging a greater consistency of approach which is likely to lead to a greater consistency of actual sentence. If you are approaching it the same way, then you should get to broadly the same result.
Q47 Elizabeth Truss: Can I ask you how it differed between the different regions of Britain? Is there information about that?
Lord Justice Leveson: There are statistics about the sentences passed from different areas. There is no doubt that in some parts of the country the use of imprisonment is greater than in other parts of the country. I don’t know whether that is because of specific local problems, which is one possibility, or it may be because of slightly different approaches to the same problem. It might also be that there are different problems in different parts of the country. One of the values of the sentencing survey is to try and iron out the differences so that we can see from the aggravating and mitigating factors in any case whether the actual cases are being approached differently. There may be a number of reasons for this. Sitting in the Court of Appeal Criminal Division, I am very conscious that when barristers, as they do frequently, cite guidelines, they always take us to the table in the back of the guideline. As I encourage them to look at the pages of script that are descriptive, that is rather more difficult. One of the approaches that we’ve sought to adopt in this guideline on which we are consulting is to cut out a lot of the script but to drive everybody to the circumstances of a particular offence-culpability and harm, and then the aggravating and mitigating features-to try to make it clear how lawyers should approach the task of mitigating and how judges should approach the task of sentencing. I earnestly hope that it makes it clearer for everybody else-for victims, for the police, for anybody interested in sentencing-how the task is approached.
Q48 Elizabeth Truss: Do you think there is any cost to moving to this system in terms of perhaps sacrificing the judgment that is exercised in cases and also mitigating against other forms of accountability for judges, the more that it’s a one-size-fits-all national approach, particularly given that in the Home Office we’re moving to more local accountability through Police Commissioners and so on? If particular crimes are being pursued to different extents in different parts of the country, then is it right to have an absolutely one-size-fits-all approach to sentencing?
Lord Justice Leveson: I absolutely reject the notion that this is one size that fits all. The guideline creates an approach and within that approach judicial discretion is entirely preserved. I have absolutely no difficulty with differing parts of the country, having different problems, generating slightly different sentencing solutions, provided they have applied a consistent approach. I’m not sure that it would be sensible that a robbery or an act of violence should receive a different approach to sentencing in one part of the country to another. I believe that we should be consistent in our approach. I reject the notion that it is one size that fits all. I think there is ample room within the guideline for a judge to sentence the particular offender for the particular offence that is in front of him. If it is not right, the Act specifically permits the judge to say, "In the interests of justice I am not going to follow the guidelines."
When academics and judges have said to me, "We’re very concerned about this provision in the Act that says we must follow the guideline," I retort by asking, "When did you, as a judge, last pass a sentence which you did not believe was in the interests of justice?" to which they say, "Well, actually, I never pass a sentence which I don’t believe is in the interests of justice." I say, "Well, there you are." I think the guideline provides the main part of the bell curve of sentencing. There will always be extremes, there will always be special cases and there will always be the room for a judge to exercise his discretion within those special cases. So I don’t accept the premise, because I think that actually this preserves the discretion.
Q49 Elizabeth Truss: What is, and has been, the reaction of judges to the new proposals?
Lord Justice Leveson: We are waiting to see the responses to the consultation, but I can tell you that we road-tested the proposals before they became a guideline. I took the draft, before we published it, to a meeting of the Criminal Sub Committee of the Council of Circuit Judges and showed it to them, and asked them to think through the process. We sent it to a number of judges. There are a number of judicial members of the Council, who took the guidelines draft back to their courts and discussed it with judges. One of the judges is a tutor judge on the continuation board for the Judicial Studies Board. He took the guideline and tested it at a continuation seminar. We’ve tried it out on academic lawyers and given them case scenarios to see whether they’re consistent in approach. We’ve done a fair amount of work before we actually let it loose on the world to see whether it worked.
I’m absolutely not in the business of wanting a guideline where people say, "Actually this just doesn’t work." One of the reasons we chose assault to start with was because, first of all, there was a guideline so there was something for people to compare it with. Secondly, it was a guideline that judges were unhappy with. The classic example of why they were unhappy, and the one that I’ve given, is the guideline on assault occasioning actual bodily harm, where three of the four categories required premeditation. The classic example of sentencing for assault occasioning actual bodily harm is a fight outside a pub at 11 o’clock on a Saturday night, where premeditation doesn’t come into it. All of a sudden the guideline was constraining how judges could approach that very, very common sentencing picture. That’s why we chose it.
Whether judges come out and say, "This works" or "This doesn’t work" I am very, very keen to see. If we get sufficient adverse response in the consultation-and that’s not what I presently understand the position to be, I hasten to add-then we will revisit it. If we promote this guideline as the guideline, I will want to keep an eye on it very, very closely, because we’ve started with a new system of approaching the concept of guidelines which I would like to take into other guidelines, but only if it works. It is critical that it works for judges, because they are the primary audience. It is also to my mind critical that it can be understood. We have spent some time with other key players in the criminal justice arena-with Victim Support, with the Criminal Justice Alliance and others-on explaining our approach in order to learn from them as to whether this works for them as well. It is very important, and that’s why I’m very pleased that the Select Committee has chosen to respond so vigorously by taking evidence, by inviting me to come along and speak to you and to think about whether this works. I would not only encourage the Committee to respond, but I would be happy for individuals to respond and certainly for you to encourage your colleagues in Parliament who, after all, have a wonderful window through their constituents on what affects people and what response this sort of approach would have. The more views we get, the better.
Q50 Elizabeth Truss: If I can put one more question to you, can you explain how the relationship works with the Court of Appeal and also with legislation? How do the sentencing guidelines fit in with the appeal decision and also legislation?
Lord Justice Leveson: The oath that I have taken twice, both as a High Court Judge and as a Judge of the Court of Appeal, is to try cases according to "the laws and usages of this realm". Parliament actually defines our remit. The sentencing legislation, which I would be happy to comment on if I am asked, and the mandatory provisions within the sentencing legislation, provide the legislative framework within which we will always work. I see absolutely no tension between the Sentencing Council, or indeed the Court of Appeal, and Parliament. Parliament will ultimately decide what the law is, and if they pass a provision then we will provide appropriate guidelines, because the ultimate decision as to the approach to sentencing is for Parliament.
Q51 Chair: What about the relationship of the Sentencing Council and the Court of Appeal? A sentencing decision on appeal could upset your apple cart.
Lord Justice Leveson: I am coming to that. The Court of Appeal is slightly different but in one sense not really different. First of all, you ought to appreciate that the Lord Chief Justice is the President of the Sentencing Council, but I sit in the Court of the Appeal and am one of the judges who try criminal cases in the Court of Appeal. The Vice-Chairman of the Sentencing Council is the Vice-President of the Court of Appeal Criminal Division, Lord Justice Hughes. So there is a very, very close link between the Court of Appeal and the Sentencing Council.
The Court of Appeal is also required to follow the law. Part of the law which is in the remit of the Sentencing Council is "must follow". In other words, the Court of Appeal is also a court that must follow the sentencing guidelines unless it is in the interests of justice not to do so. I don’t see a tension between the Sentencing Council and the Court of Appeal. If the Court of Appeal is concerned about a guideline, then doubtless that will come out in a judgment and we will take it on board. I would hope that I’ve taken into account the likely concerns of the Court of Appeal Criminal Division. I have been sitting as a judge in it for four years. Lord Justice Hughes would not be shy about coming forward about a concern. Therefore, that is how it works that way.
On the other hand, we do slightly different things. We are there to provide a framework within which sentencers approach sentences. The Court of Appeal decides in a particular case, in relation to a particular appeal, whether that particular appellant was either under or over-sentenced. That is not to say the Court of Appeal can’t affect the wider picture. A very, very good example of that came in Saw where a court presided over by the Lord Chief Justice-in which I think rather unusually there were another two members of the Court of Appeal as members of the Court-revisited the earlier guideline in McInerney in relation to burglary. One of the requirements that the Sentencing Council has to fulfil is to have regard to the decisions of the Court of Appeal. If we are to look at burglary, we won’t be suddenly waging war in relation to the Court of Appeal decision in Saw. That is not our job either. We have to have regard to the decisions of the Court of Appeal. I think there is a mutual regard and process which will work to improve the approach of sentencing.
Could I just come back to an earlier question that you asked, because I have been passed some information which I’m very keen to make public? We have had 45 formal, written professional responses to the consultation so far; 500 people have accessed the online questionnaire and 100 have completed it. The consultation responses so far from the judges, which was your question, have been universally positive. That is not because I’ve told the judges who aren’t positive not to respond; I have wanted responses from everybody.
Q52 Mr Llwyd: Sir Brian, can I take you back to something which Ms Truss referred to earlier on? I think everybody would accept that consistency in sentencing is a very good thing, whilst accepting that there has to be discretion because there are cases at the margins and so on, as you referred to. Does the increase in consistency reflect itself in a reduction in Attorney General referrals and appeals against sentence?
Lord Justice Leveson: I would hope that it would, because I would hope that a consistent approach to sentencing would lead to broadly consistent sentencing within the parameters, which then would reduce the number of occasions when counsel advised their client that a sentence was "manifestly excessive or wrong in principle", which is the test for interference to the Court of Appeal on appeal, and equally affect the very small number of occasions in the great scheme of things when the Attorney General considers it appropriate to refer cases that are unduly lenient. It won’t ever exclude them, because every single offender is different. Although judges are trying their best to pass the appropriate sentence, because it does involve an exercise of discretion I have no doubt that there will always be hard cases where an appellant will say, "Well, actually, he or she has just got it wrong," or where the Attorney may say, "I think the judge has overplayed the mitigating features and not taken sufficient account of the aggravating features." I think that is a good thing. The task of passing sentence is extremely onerous. Nobody undertakes it lightly. Therefore it is right that there is a mechanism for review, both upwards and downwards.
Q53 Mr Llwyd: Certainly, I don’t disagree with you on that point at all. I was just wondering whether there was any research work recently undertaken on this area. It seems to be that it does have a tangential effect, or at least there is a link between the work that you are doing and, I would guess, fewer referrals and fewer appeals against sentence. Perhaps that will come in the course of time.
Lord Justice Leveson: I don’t know whether there has been any research on the numbers of appeals, although I would apprehend that there are fewer appeals pro rata. I am just trying to remember the graph I get every term with the number of appeals outstanding and the number of appeals disposed of, as contrasted to the number of disposals in the Crown Court. I think that’s stayed broadly even, while the number of cases disposed of in the Crown Court has gone up. Whether that is because of Sentencing Council guidelines, I don’t know. I would be very interested to see whether our guidelines did affect the number of cases going to the Court of Appeal. I am not quite sure how we will test it.
Q54 Mr Llwyd: The new guideline requires sentences to focus on culpability and harm rather than premeditation with regard to assault. I listened to what you said earlier, Sir Brian, about the classic case of an assault at 11 on a Saturday night, and so on. Why did the Council take this decision, and does it intend to extend this approach to other offence-specific guidelines?
Lord Justice Leveson: First of all, section 143(1) of the Criminal Justice Act 2003 says, in terms: "In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused." We decided to focus on culpability and harm for assault because we thought they were a very good discriminator for categories. We then put the question of the degree of premeditation later in the guideline, as you have seen. I have no doubt that culpability and harm will be the appropriate categorisation for other crimes, but this must be done on an offence-by-offence basis because I can equally think of other offence types in which culpability and harm as concepts do not quite fit. What I want to do is to make it work rather than straitjacket a particular offence type into the language of the legislation, although culpability and harm will always focus even if those aren’t the precise words used.
Q55 Mr Llwyd: Could you possibly give us an example when it might be appropriate for a sentencer to move above and below the identified category range?
Lord Justice Leveson: Why am I reluctant to start thinking of cases? I will give you one above, which I will take from assault. Section 18 is causing grievous bodily harm with intent. We will approach it on culpability and harm and aggravating and mitigating features. I could visualise a torture case where an offender, or gang of offenders, deliberately set about torturing somebody, not intending to kill them, intending to cause them serious injury-and causing them serious injury-but wanting to do so in a way that maximised pain for some other advantage. I could visualise that being a case off one end of the bell curve. It will happen, and indeed one can take historical examples where very, very substantial sentences would be appropriate for that offending outside the sort of category ranges and sentences that we are talking about here. If I go to my bell curve, I draw the lines not at the very ends, because if I draw them at the very ends then I provide less value on the 99.9% of the cases. But there is an example of one that is off the end.
Q56 Mr Llwyd: That is very helpful. You referred in an earlier answer to having road-tested guidelines on the Council of Circuit Judges, amongst others. Has that road-testing been attempted on practitioners: for example, applying hypothetical scenarios in order to see whether things are working out with them?
Lord Justice Leveson: At the continuation seminar for the Judicial Studies Board there will have been practitioners who are Recorders, because Recorders also have to attend these seminars. I have no doubt that they participated. There have been, and there are, events going on to test this. I expect and hope the Bar Council will respond. I know that the council of the Law Society intend to respond. Indeed, I went to the Criminal Sub-Committee of the Law Society and sought to introduce them to the consultation, not least because it is very important not only that judges find this valuable but that solicitors and barristers advising their clients can see their way through the guideline, the better to be able to advise their clients as to the likely sentence for the crime for which they are then before the court.
Q57 Mr Llwyd: I hope this isn’t an unfair question. Were the police and other interested parties consulted on the reduction in the starting point for assault against someone in public office?
Lord Justice Leveson: There is a police officer on the Sentencing Council. The Deputy Commissioner of the Metropolitan Police, Tim Godwin, is a member of the Sentencing Council. I am aware that other parties, including all police forces, are being encouraged to respond as part of the consultation process. We have received some responses from police forces and I don’t believe this has been a problem. But let me make it clear-I don’t want there to be a misunderstanding about this-that assaulting a police officer in the execution of his duty is a common assault. It need not involve any injury of any sort. We are still considering it a more serious offence than common assault. If there is an injury I would expect an offender to be charged with assault occasioning actual bodily harm or with causing grievous bodily harm. One of the aggravating features in those offences on our guidelines is that it is committed against a public servant. That would be an aggravating feature, whether it’s a police officer or a nurse in a casualty department, or equally those working and providing a service to the public, in which regard I would include publicans, bar staff and shopkeepers serving the public who, by the nature of their employment, come into contact with the public.
I am not in any sense seeking to reduce the significance of assaulting a police officer in the execution of his duty. What we found as we researched it was a lack of proportionality between the potential aggravating features of other assaults and the sentencing guideline in the original assault guideline on assaulting a police officer in the execution of his duty. I hope that answers the point that you raised.
Q58 Mr Llwyd: It does. Finally, can I ask you about the concept of maturity? The Council proposes adding youth and/or lack of maturity as a mitigating factor in determining lesser culpability in terms of sentencing. You will be aware of John Thornhill, the Chairman of the Magistrates’ Association.
Lord Justice Leveson: Yes, of course.
Mr Llwyd: He agreed, as I think we would all agree, with the general thrust of this. But he questioned how maturity would be measured, by whom and what information would be given to the courts to inform sentencing.
Lord Justice Leveson: This is something we’ve done for ever. It comes out in pre-sentence reports, as it used to come out when I started at the Bar in what were called "social inquiry reports", prepared by probation officers who make assessments of maturity, and in extreme cases it may very well come out in psychiatric or psychological reports. Those are not uncommonly prepared in exceptional and appropriate cases. Judges have been assessing the maturity of defendants as long as they’ve been passing sentence. If there is a trial, of course, they get an opportunity to see the defendant give evidence, if he does, and so can make a judgment about maturity. If it is a guilty plea, of course, you don’t get a chance by interacting with the defendant; you just hear him say the word "guilty". Then you rely on others.
There is not only the information from a probation officer. Frequently one can also obtain that material from the prosecution papers, because one gets a flavour of what happened, and also in the material that comes from, particularly, members of the family if they write, as they frequently do-and sometimes from other sources as well. It is a judgment that we make all the time, and I have no difficulty in trusting judges to make that judgment. Of course it is individual and it depends upon the judge. That goes back to the question which I was asked about discretion. We can’t ever, and we shouldn’t be trying to, eliminate that element of discretion in the judge, who is charged by society with the difficult task of passing a sentence on another member of society that reflects all the circumstances.
Q59 Mr Buckland: Sir Brian, you referred to the words "must follow", and it is absolutely right that we do focus upon them. A question was asked about whether the number of appeals would decrease. What about this proposition: that the number of appeals could increase simply upon the basis that appellants, or those advising them, see a failure to follow the guidelines and, no matter how carefully the judge puts his or her arguments, it will de facto be a ground of appeal? How are we going to combat that, because that could lead to an explosion in appeals on the basis of the new legislation?
Lord Justice Leveson: It might very well, in the first rush of enthusiasm as members of the Bar and solicitors cast around for grounds of appeal, form part of the picture. I have absolutely no doubt that when these cases start to come through the system the Court of Appeal will choose a few cases to lay down what is meant by this language, because it is the Court of Appeal’s task to interpret it. I think you will find that the picture will emerge very, very quickly as to the approach to be followed.
Q60 Mr Buckland: So you think it will be a bit like the old chestnut about disparity: defendant "A" and defendant "B". He got two years and defendant "B" got a suspended sentence. The Court of Appeal has dealt with that pretty comprehensively over the years, hasn’t it?
Lord Justice Leveson: Absolutely. Would a right-thinking member of the public think something had gone wrong with the administration of justice? That is the test. That is quite a hurdle. I think you will find that we will work through an initial legitimate requirement to define the four corners of the legislation. What judges are required to do is "must follow" unless it is in the interests of justice, in which event they have to explain themselves. I would have thought that judges would find perfectly adequate language to explain themselves. The Court of Appeal pays great attention to what judges say when they pass sentence, and won’t be deflected by submissions that "must follow" means something very, very different to "must approach the case on the basis of the guideline and then decide within the guideline how it fits".
Q61 Mr Buckland: It follows on from that that there is a body of opinion that would say these guidelines are more prescriptive than the previous regime. Looking at it, it could lead to either sentencers, or anybody involved in the criminal justice system, thinking, "Well, this is a little bit of an assault course and if I make a mistake at point ‘A’ or point ‘G’ then the whole thing falls down." You will remember that there was a television show called The Krypton Factor where various hapless contestants had to do all these appalling things through assault courses, and so on. Are we not setting a judicial equivalent to The Krypton Factor by all of this?
Lord Justice Leveson: Mr Buckland, I certainly hope not. I hope that you don’t find that that is the position when you are called upon to follow the guidelines. "Greater harm" and "higher culpability" are concepts which judges understand, as are "factors indicating greater harm" and "factors indicating higher culpability". One of the great things about this draft to me is that it’s on three pages. It is not, in my view, an assault course. There is a bit of an assault course, which is the third page, steps three to eight, but, with great respect, that is the law. In other words, the Serious Organised Crime and Police Act 2005 requires a reduction of sentence for assistance to the prosecution. A reduction for guilty pleas: section 144 of the Criminal Justice Act 2003 requires that. Totality has to be considered. Dangerousness is required by Chapter 5 of the 2003 Act. Reasons are required-
Q62 Chair: Page 3 is an aide memoire, is it?
Lord Justice Leveson: Absolutely, to make sure that the judge jumps through the hoops which Parliament has set, not which we have set.
Q63 Mr Buckland: I am entirely in sympathy with that point, which is evidence-based. Can I deal with that third page? It seems to me that when it comes to the more serious offences that could attract a life sentence, IPP or extended sentence, we are putting "dangerousness" down at step six. Is that really the right place for it? Shouldn’t we be thinking about that much earlier on in the process?
Lord Justice Leveson: It is an interesting question and I’ve been asked the question before. I believe it might have to move up a bit but nothing like as much as I know has been suggested. I think it possibly comes before "Totality", which is step five.
Mr Buckland: I agree.
Lord Justice Leveson: Let me tell you why I don’t think it comes any earlier. The concept of "dangerousness" is the concept that falls to be considered before the court passes a sentence of imprisonment for public protection, or indeed a discretionary life sentence. In relation to those sentences, when the concept was originally introduced of course any sentence that was either of a particular type or fell within a certain band could attract imprisonment for public protection, which meant that you could have a very short minimum term but still be considered dangerous. In other words, Parliament was telling us that the court had to consider in every case not merely the gravity of the particular offence but also dangerousness. If somebody was dangerous, however lacking in gravity the actual offence, a sentence of imprisonment for public protection was still appropriate. Parliament has since changed that and imposed a threshold sentence at the moment of four years, i.e. a minimum term of two years. I know it is proposed to increase that yet again by the Green Paper, but Parliament will decide. That is entirely a matter for you, not for me.
Therefore, I believe that the specific consideration of the question of "dangerousness" for IPP purposes should only come after the judge has considered that the threshold minimum term has been passed; otherwise there is a risk that you think about "dangerousness" and then maybe adjust the sentence upwards to move somebody up, which I don’t believe would be appropriate. That is not to say that "dangerousness" is not actually considered earlier. The assessment of seriousness at step one and step two-culpability and harm-will inevitably inform the assessment of "dangerousness". There are also issues in relation to imposing an IPP or an EPP without having first reached, as I say, that notional determinate term.
Q64 Mr Buckland: I take your point when it comes to IPPs, and you are right that with a threshold going up to 10 years really the distinction between them and a life sentence becomes more blurred. When it comes to extended licences, the "extended sentence", as we call it, so in other words a sentence with a determinate term and then a longer licence, which of course has effects on release, and so on-and automatic release doesn’t apply so that everybody knows what we are talking about-it is still going to be difficult, isn’t it, for a sentencer to sub-divide that assessment of "dangerousness" in the way suggested? Surely it is part and parcel of the overall approach to length of sentence?
Lord Justice Leveson: But don’t you agree that one has to decide what this particular offence deserves first?
Mr Buckland: Yes.
Lord Justice Leveson: Of course, in this draft it is all called "steps", but you can’t approach judges as if you were looking at them through a CAT scan. We are not taking slices of a judge’s brain at each step to see where they’ve got to. The idea is to provide a consistent approach and then to make sure that before you get to the end of the process you’ve thought of everything. If the gravity of the offence has "dangerousness" bells ringing, that is fine. You know you are going to get to it provided you have first decided, "What do I think this sentence deserves?" Then, "Well now ‘dangerousness’. Do I want an IPP or do I want an extended sentence?" Provided the whole thing comes out at the end-I think one can be over-analytical. What bothers me about moving it right up to the top, and I know Nicola Padfield has suggested it should be much higher, is that one gets confused between what this crime deserves and whether it is appropriate to impose, in the interests of the public, some longer sentence because of IPP, in other words not released until the Parole Board say so, or some additional supervision in the form of an EPP.
Chair: I am advised that the heating in this corridor has failed. Unless it is reinstated quite soon, I shall make sure that we adjourn this Committee in about 15 to 20 minutes’ time. That imposes a certain discipline on us, because there are a couple more topics I do want us to cover. If we fail to cover them all we might have to write to you, but I am not prepared to see Members and staff in a constantly declining temperature until we get below freezing.
Lord Justice Leveson: I wasn’t aware of it at all, Chairman.
Chair: I have taken advice on the subject, so I am therefore going to turn at this point to Helen Grant.
Q65 Mrs Grant: Sir Brian, can you explain how the guidelines better manage victims’ expectations? How do you explain the use of fines and community sentences or, rather, how would you, to a victim of a violent offender?
Lord Justice Leveson: This is one of the reasons for making this simpler than the Sentencing Guidelines Council’s admirable effort-I am not criticising what they did; they started the ball rolling and they created a very good model. This is just, I believe, at the next level. One of the things that we were very keen to do was to make the regime simpler for everybody, including victims, and to make it easier for those who talk to victims to explain how the judge will approach sentencing. As I say, the old Sentencing Guidelines Council had X pages of closely-typed script, which it would be very difficult for anybody to follow. Of course we are used to these concepts but victims will not be, and I believe that somebody can help talk through how the judge is going to approach the job. I would be very, very keen to make the process of sentencing clearer to victims so that they understand more clearly what goes on. As regards community sentences and other-
Q66 Mrs Grant: Could I just ask: at what point would that be explained to the victim, who might be sitting in court as a witness?
Lord Justice Leveson: That is a slightly different problem, because that problem goes back to responsibility. When you say that the victim might be sitting in court, in my experience, save in the most serious crimes-in the homicides-the victim very rarely is in court. The victim gives evidence and then goes about his or her life and does not sit in court. Of course, sentencing after a trial is always slightly uncertain. One doesn’t know quite how long the trial will take. One doesn’t know how long the jury will take. Therefore there isn’t a fixed time, unless the case is adjourned off. So victims are not in court.
Q67 Mrs Grant: But the person is going to be sitting waiting, somewhere, whether it is at home or in court.
Lord Justice Leveson: I understand. Therefore it is not the judge’s job. The judge is not going to phone up the victim, and it would be wrong for the judge to phone up the victim because of the need to be seen to be utterly impartial. I am very clear in this. Somebody should explain to the victim, and to others, why sentences are passed. When victims understand why sentences are passed, our understanding from them, and I think there is some material from Victim Support on this, is that they are far more readily prepared to accept a sentence which is not punitive. What victims seem to be most keen on at the lesser end-I am not talking about the homicides-is that it doesn’t happen to somebody else. If they can be persuaded or if it is possible to explain the rationale for a sentence which leads to that conclusion, then I think, or so I am told, that will be satisfactory.
Q68 Mrs Grant: But who is going to explain that to them?
Lord Justice Leveson: The people who can explain and manage a victim’s expectations are, I suppose, the police, prosecutors, and indeed Victim Support. We’ve got to do what we can to make sure they understand why a sentence is passed. It is not just of course the victim; we want to explain to the defendant. That is very difficult because the defendant, who might have just been convicted after a trial, will not be in the best psychological state to listen to a long explanation for a particular sentence. I ought to keep my answers shorter, too. When I started at the Bar I vividly remember a judge saying: "Stand up, Snooks. Congratulations. Double figures, 10 years," and that was it. That would never happen today and it wouldn’t be acceptable today. Judges do explain why they pass sentence. Whether it is always heard is another question. I think getting that communication across is very important.
Q69 Mrs Grant: I have one more supplemental question. The guidelines propose more severity for offenders who target vulnerable people. How would you define a vulnerable person, and might a vulnerable person include, for example, a victim of domestic violence?
Lord Justice Leveson: It might indeed. I am rather keen not to provide a definition that somebody is going to say is all-embracing and therefore excludes other things, but it is those under a disability, those vulnerable by reason of age and those vulnerable by reason of circumstance. Each case will be judged, and, in the same way as I say that maturity is something that judges are very used to recognising, so vulnerability is something that judges are very used to recognising. My concern about domestic violence is getting it to court and getting it dealt with quickly enough to provide some measure of protection.
Q70 Mrs Grant: But would you say a victim of domestic violence could be classified as a vulnerable person for the purposes of this sentencing guideline?
Lord Justice Leveson: I believe that some victims of domestic violence will be categorised as vulnerable. It depends on the circumstances. I absolutely do not exclude it, and I include it, but with that caveat.
Q71 Chris Evans: Sir Brian, you have said: "As a Council, we are keen to focus not only on developing and monitoring the effect and impact of sentencing guidelines, but also on raising public awareness of the practice and realities of sentencing." How have you done this?
Lord Justice Leveson: I am very, very keen to raise public awareness, because I believe it’s absolutely key that we build public confidence in sentencing. We are seeking to build relationships with and engage with the public in a wide range of activities. We have updated our website to ensure it contains accessible information. We have recently completed work on a leaflet with the Metropolitan Police Service and London Probation to provide police officers with information about sentences. We are going to launch a sentencing competition for law students to arrange awareness of both sentencing and guidelines. What we would also like to do, subject of course to finance, is develop a suite of information for victims and witnesses to increase their understanding of sentences. We find that when people understand sentences their confidence in the criminal justice system increases. It is not sufficient merely to publish a vast array of statistics: so many burglars got this; so many anti-social offenders got that. You require the detail to understand. Throughout the country there have been a series of events, which some of you may have heard about, called "You Be the Judge" events.
Chair: We know about those.
Lord Justice Leveson: What that demonstrates is that confidence in the criminal justice system, if they are asked before they start this, is 30%-odd. They are then given five sentencing scenarios and four options, with a "Who wants to be a Millionaire" keypad to vote. They then find that they’ve actually either sentenced at the same level as or under-sentenced the judge. Once they realise that, their confidence in the criminal justice system increases. I believe that we will do a great deal to improve public confidence and reduce clamour if people do understand what we are doing and why we’re doing it. I have taken the responsibility for the Council of trying to promote that, which is only one of the things we’re supposed to do, but putting it right at the top of the agenda.
Q72 Chris Evans: Do you have any fears that the message isn’t getting through?
Lord Justice Leveson: Yes. All I can do is everything I can do. I hope that we will get the funding to be able to produce material that can be shown to victims and witnesses. I would very much like to find a way of engaging the wider public in these issues and not just have to rely on "You Be the Judge" events, which only have 120 or 150 people in a community hall. I would be very keen to encourage you to do what you can-and we’ll provide some material if you’re willing-to help persuade the community that our sentencing system is rational, that it does take into account people’s concerns and that we are doing what we can do to be effective within the constraints of any penal system.
Q73 Chris Evans: What are your media relations like? I am thinking at the moment that, when it seems to be a quiet news day, the newspapers seem to jump straight away on the judges and some sort of sentence they have picked up in the courts somewhere. How effective do you think the Council is in dealing with the media? When you see these wild headlines, which seem to be strictly scare stories, how are you rebutting and dealing with those headlines?
Lord Justice Leveson: No judge will ever comment on an individual decision, which answers part of the question. We are very keen to increase our profile with the public and thus the media, because the media is a key channel with which to engage with the public. We are trying to find as many ways as possible to do it. We took a proactive approach to engaging with the media when we launched this consultation paper. I don’t think the Sentencing Guidelines Council had a press conference on the day of the launch and there was a reasonable amount of coverage on the topic. A lot of it was positive in relation to raising the profile of guidelines, but not all of it positive-I understand that. We have to seek to address the concerns that people have and show that we’re listening.
Q74 Chris Evans: Has there been a headline that you can think of, that comes to mind, where you have been personally angry, and that you felt was unfair and untrue?
Lord Justice Leveson: I can think of a number of headlines which I think were unfair and not entirely balanced, although when one read the piece, the piece was not always reflected in the headline. We have a small communications team in the Sentencing Council which does include a senior press officer.
Q75 Chris Evans: Do you think there is enough capacity there for dealing with the media and doing the public exercise as well, or do you think you need more people involved?
Lord Justice Leveson: The Council is a comparatively small body. I think there are 19 people working within the Council. We have to cover a wide range of expertise. We have to cover policy, law, social research, statistics and communications; and we have to manage the office as well. We are doing as much as we can, but we are very conscious that public finance is such that a request to increase our complement is not going to be visited with great favour.
Q76 Chair: Would you anticipate a headline which says, "Sentencing Council tells judges to soften up on assault"?
Lord Justice Leveson: Did I anticipate such a headline?
Chair: Would you anticipate such a headline?
Lord Justice Leveson: I think there were some headlines that weren’t a million miles away from that but were rather less polite.
Q77 Chair: And your response to that is?
Lord Justice Leveson: We can only explain what we’re trying to do. The impact assessment, or the resource assessment, that went with our guideline, which was online, certainly revealed that at the top end some sentences might go up a bit, but at the bottom end they may go down. One has to be very, very careful to treat all this material with real caution because, with all the expertise that we have within the Council, we do not employ Gypsy Rose Lee. I hope that doesn’t become a headline.
Q78 Chair: Isn’t there rather a danger in using the term "down" that, for example, a community sentence with tight supervision and alcohol or drug treatment might not be "down" in the eyes of an offender as compared to a limited jail sentence with three square meals a day and not much to do?
Lord Justice Leveson: I entirely agree with you. I absolutely entirely agree with you. That’s a message which I’d be very, very keen to get across. More than a few offenders come back before the courts because, in terms, they find compliance with a stringent community order rather tough and three months is perhaps not quite so tough.
Q79 Ben Gummer: This has all been far too harmonious. I would like to say that I, for one, am far happier with the level of inconsistency across sentencing, or maybe I should say "variation", than other members of the Committee might have said. This is not the place to talk about the intellectual justification for that, but I wanted to probe a few issues between the Council and the Ministry of Justice.
First of all, in evidence yesterday with the Ministry of Justice there were some interesting comments about work they are doing on the relative costs of different sentences and their efficacy. In your instructions, as you pointed out earlier under the Act, you have taken into account the costs of different sentences and their effectiveness in reducing reoffending. I speak again and make a declaration as a non-lawyer, and therefore this might seem a very silly question, but I wonder whether there is a place for the Council giving that information to judges so that they understand, in the round, what the cost of a sentence typically is and what its effectiveness typically is so that they can have a balanced assessment, when they make their assessment, of the impact on the public purse and also within their consideration of its effectiveness in rehabilitation.
Lord Justice Leveson: I am sorry to want to come back to the opening comment that you made. I have no problem about different sentences in different places provided there are reasons for it. If, for example, a particular crime is prevalent, then I can well understand why a particular court might want to "up" the sentence for it. What I am against is an inconsistent approach to sentencing. Maybe it is a debate for another time.
Q80 Ben Gummer: I am happy with many different approaches. I think this produces a variation of view.
Chair: Let us deal with the question that you asked.
Ben Gummer: I wanted to put it on the record. I didn’t want you to feel this was a unanimous view amongst the Committee.
Lord Justice Leveson: That is fair enough. It’s a debate for another time. In relation to your particular question, we are planning to produce a briefing for practitioners, including judges, on the current state of the evidence on the effectiveness of sentencing. It is difficult to conduct research that will enable more robust conclusions about the effectiveness of different types of sentence. You may be aware that our consultation document puts a slightly different perspective to that which has been published in the Green Paper by the Ministry.
One of the problems is the problem of controlling for differences in the characteristics of offenders. The other problem is that you also have to take account of the fact that judges might actually, even between two apparently similar offenders, be able to detect those who may respond to a community sentence and those who won’t. Judges sometimes might get it right, which would then say, "Ah, well that community sentence was more effective than that sentence." But even though they’ve got the same number of previous convictions and they’ve failed the same number of times, the way in which their determination to change behaviour comes across in the sentencing exercise may very well mean the judge makes a sensible choice. That is not to say that judges don’t always make sensible choices. But I do believe that it is appropriate for sentencers to know what sentences involve, how much they cost and how effective they are, provided it isn’t thought that that’s what is going to drive a sentence. Among the purposes of punishment, as I identified earlier in this session, are other requirements beyond the rehabilitation of the offender, very important though that is. There is a whole mix of dynamics that go into the determination of a particular sentence.
Q81 Ben Gummer: Yes. The second and third mandate is reducing crime and rehabilitation, which some might argue is more or less the same thing. I can see that you are edging towards it, but are there any plans to be able to give a menu to judges saying, "This punishment-a prison sentence-typically will cost this amount of money and gives this outcome under current research. Another sentence-a community sentence of a different type maybe-costs X amount with a typical outcome"? Of course, most judges will know the circumstances of community punishments in their own area, because they will be well aware of how good one particular community sentence is as against another.
Lord Justice Leveson: Correct.
Q82 Ben Gummer: So they will be able to modify it. But it seems that the evidence with which they are dealing, given the fact that the Ministry of Justice is only just getting round to having a rigorous approach to assessing the cost-effectiveness of various sentences, should be fed through as quickly as possible to judges so that they can make judgments themselves based on that.
Lord Justice Leveson: I agree. I do believe that judges who sit in their local Crown Courts know exactly what the benefits and demerits are of particular non-custodial options that are available to them. It may be that Recorders are less familiar, but I would hope that they would make themselves aware of it because it’s an important part of their job. As I say, I am very keen that we do produce a briefing on the current state of the evidence on the effectiveness of sentencing, but that will only be at a macro level; it won’t be at a micro level. It is going to be quite difficult to produce statistics saying, "This particular option in this particular locality has had this result compared to all the different types of community sentence that might be available." One has to balance how granular the information is in relation to any particular disposal in any particular area as opposed to what the bigger picture is, either in an area or a region, or nationally.
Q83 Ben Gummer: But a movement to payment by results will produce that data.
Lord Justice Leveson: If we are getting the data from other places, I have absolutely no problem with it. I am not against as much information as possible, provided it is borne in mind that judges will not sentence to financial constraints. They will do what they believe is right in the interests of justice every single time. Ultimately, if that becomes unaffordable for other reasons, it is up to Parliament to decide how that should be approached. Our approach to the guidelines, with its emphasis on evidence and effectiveness, will encourage everybody to understand the effect of the sentences that they pass.
Q84 Ben Gummer: You have moved neatly on to the issue of the Ministry of Justice having its own review of sentencing. You have your own process at the moment. Are you happy with those two processes running parallel and the relationship between them? Have you been consulted by the Ministry of Justice? Describe how that is going at the moment.
Lord Justice Leveson: There is no question but that we work closely with the Ministry of Justice. Helen Edwards, the Director General of Justice Policy, sits as an observer on our Council. She doesn’t merely observe. With encouragement from the Chair, she participates and provides information. There are regular meetings between senior officials in the Ministry-Helen Judge of the Ministry-and officials within the Sentencing Council, to exchange and share information. The Council considered the literature on the effectiveness of different types of sentences, focusing on community orders and short-term sentences, and we concluded that the current evidence is not robust enough at this time to determine which is the most effective.
There was a literature review by the Campbell Collaboration in 2006, which reported: "According to the results"-of a meta-analysis, this is-"non-custodial sanctions are not beneficial in terms of lower rates of reoffending beyond random results." That meant that we said in our professional consultation: "Research on the cost and effectiveness of short custodial sentences versus community sentences is inconclusive and, in the absence of evidence that custody can improve outcomes for offenders and society more than community alternatives, the Council proposes to change the starting point for the most serious forms of common assault from custody to community order."
You have seen what the Ministry of Justice has recently published in the Compendium of Reoffending Statistics and Analysis. We are just concerned about the nature of the evidence. If I go back to the extent to which we work with the Ministry, not only do we liaise and regularly meet with the Director of Criminal Policy, Helen Judge, there are meetings and work being undertaken by both organisations. We will certainly use the material that comes out of the Ministry, and I anticipate that they will use the material that comes out of us the better to inform what we do. In addition, we are accountable to Parliament for the delivery of the statutory remit which we have. Under section 119 of the Act the Council has to make an annual report to the Lord Chancellor on how it has exercised its functions. The Lord Chancellor will lay a copy of the report-
Q85 Chair: We are familiar with those processes. We were part of the creation of them recently.
Lord Justice Leveson: I am very, very pleased that you were, because I think it is very important.
Ben Gummer: I suppose that leads on neatly to the point-
Chair: Order; order. There has been no improvement in the heating of this room. I have received further complaints about it. Therefore I am going to adjourn this session and make a formal complaint to the House authorities about interference with the business of the Committee. We are very grateful to you for your time with us this morning. We will respond and possibly cover some further points as well.
Lord Justice Leveson: I am very grateful for the interest that the Committee has shown in the work of the Council and in the draft assault guideline. Thank you very much.
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