|©Parliamentary copyright||Prepared 17th January 2011|
Draft sentencing guidlines on assault
House of COMMONS
TAKEN BEFORE the
Tuesday 11 January 2011
Nicola Padfield, Professor Andrew Ashworth and Professor Neil Hutton
USE OF THE TRANSCRIPT
Sir Alan Beith (Chair)
Mr Robert Buckland
Mrs Helen Grant
Mr Elfyn Llwyd
Mrs Linda Riordan
Q86 Chair: Good morning and welcome, Nicola Padfield from the University of Cambridge, Professor Ashworth from Oxford University and Professor Hutton from Strathclyde University. Welcome to you all. We are very grateful to have your help this morning as we look at the draft sentencing guidelines on assault.
Could I open up by looking at the rather basic question about guidelines? The 2009 Act requires th at sentencers "must follow" the guidelines. That replaces a requirement for them to "have regard" to the guidelines. Is that going to change practice and is it going to result in what some members of the judiciary have expres sed as a fear: that they are st uck in tramlines?
Professor Ashworth: I would say that is a question that has to be resolved fairly soon and I would expect, since it is a matter of interpretation of the law, that that is going to be resolved by the Court of Appeal. If one looks closely at the wording of the new Act, what the sentencer "must follow" is the offence guideline. That means that the only binding duty is to impose a sentence between the top of the highest box and the bottom of the lowest box, which is a very broad area. What it doesn’t say is that the sentencer must follow the offence category, of which there are three. The wording of the statute is rather broad as it stands, but it is in need of interpretation authoritatively.
Q87 Chair: By comparison, Professor Hutton, what is happening in Scotland?
Professor Hutton: At the moment we don’t have guidelines in Scotland. It seems to me that the amount of discretion that judges have available to them in England under this guideline is not much different from what they have just now. I don’t really see it being a major change, but of course it depends on how it is interpreted by the Court of Appeal.
Q88 Chair: What you do have is a Sentencing Council and a Sentencing Information System, which the judges themselves backed.
Professor Hutton: Yes. The Sentencing Information System was introduced into the court in 2002. At that stage, the clerks of court in Scotland were responsible for entering data into the system and the judges were in control of the system. When I was a member of the Sentencing Commission for Scotland between 2003 and 2006, we asked for information about how the system was being used, and it was very difficult to get that information from the judiciary. The conclusion we came to was that the system was not being updated by the clerks, and therefore the judges weren’t making great use of the system. You would have to ask the judiciary in Scotland whether the system was being used at the moment or not.
Q89 Chair: You think that system might be a "dead letter"?
Professor Hutton: That is a possibility, which is a great shame because the Information System offered a very useful way for judges to find out about what had happened in the past in a very flexible way and allowed them to pursue consistency in sentencing and retain their discretion at the same time. It is a shame if it is not being used.
Q90 Chair: Ms Padfield, do you have any thoughts about the general principle?
Nicola Padfield: No; I think we will all wait with great interest to see how the Court of Appeal interprets it, particularly the interests of justice test, because there will be differences of opinion within the judiciary. So "wait and see" is all we can say.
Q91 Chair: One of the kinds of discretion that intrigued me as to how the system copes with it is where a sentencer takes account of a particular local circumstance, such as a sudden upsurge in a crime not previously common in the area, and there is a certain public pressure to give a very clear signal that it will not be tolerated.
Nicola Padfield: The Court of Appeal was very clear in Oosthuizen that the trial judge should not say that prevalence influenced his or her decision unless there was evidence, and I have never heard of a court being given evidence of prevalence.
Q92 Mr Buckland: Looking at the guidelines, I was interested in what you said, Professor Hutton, about the position not changing that much. Looking at the details, the way in which the new guideline is set out is somewhat different from the existing one-I think we all agree-in particular, in the step-by-step decision process that is set out. There are a couple of points arising from that. First, is that helpful, or does it confuse the situation further? Secondly, are they in the right order? Particularly, the "dangerousness" assessment coming down at No. 6 seemed to me to be rather out of place, but I would welcome your views about those two aspects.
Nicola Padfield: I sit as a recorder as well as being an academic lawyer. I can say that as a recorder, and as one of 1,200 or whatever, I find it very useful to have a checklist. I am a compliant sort and I look at the existing checklist and find it very useful. I am sure that the new checklist will be extremely useful. With regard to the extent to which one judge rather than another judge follows the guidelines, as far as I know, we have no real evidence as to whether everybody is being compliant or whether judges are resisting. I know, obviously from this consultation, that the Sentencing Council is concerned that judges, recorders and magistrates are looking at the nice little diagrams and not reading the words, which is the essence of why we have a much more complicated scheme. I would be more comfortable if we had a bit more evidence to tell us that what we have at the moment isn’t working.
In relation to the positioning of "dangerousness", it was my initial reaction to the consultation that it was not helpful to move it down the list, because the judge has to decide that, I felt, quite early on in the decision making, particularly in relation to getting a pre-sentence report, which comes even before the sentencing decision. I am now not as concerned as I was, because I know that Lord Justice Leveson and the Council have been thinking long and hard about it. I would still like to know a little bit more on the thinking behind moving it down the checklist. I still maintain quite strongly that it ought to go a little bit up the checklist. Before you can consider totality, you have to know whether it is going to be an IPP or an extended sentence.
I guess my main interest is thinking through the bottom line. Most of us think that there have been too many IPPs. The extended sentence is a really interesting creature to work with now. Of course, we know there is concern about recall, and those who are recalled under extended sentences are serving much longer in prison than the sentencing judge probably thought. I guess when we think about the psychology of decision making, as we have mentioned in the consultation, it is interesting to think through whether the judge should think about this sooner or later in relation to excluding the "dangerousness" provisions. I think it is a very difficult question.
Q93 Mr Buckland: You are quite right, because "dangerousness" is a pretty key determinant as to where the sentence is to be pitched. The naturally intuitive thing for a judge to do is to consider that fundamental point first on the evidence that he or she may have before them, whether it is in a PSR or sometimes in extra material that may be provided-but usually in a PSR-and make that decision and indicate to counsel at that stage whether or not they think it is a "dangerousness" case before going on then to consider determinate terms.
Nicola Padfield: That logic was very clear in the Criminal Justice Act 2003 provisions, when there was no discretion in relation to the "dangerousness" provisions. I think your point is arguable now. On the argument for moving "dangerousness" down the list, I can see why it is there because it is part of the judicial discretion, but maybe my colleagues want to add something there.
Professor Ashworth: I just think that a judge has to advert to that earlier, even if the judge doesn’t deal with the details until later. It is true that even if one goes down the "dangerousness" path a minimum term has to be set, and in that sense one has to go through all the other hurdles, but I can’t believe that a judge would not advert to that until such a late stage. As you point out quite rightly, the pre-sentence report has to be called for if there isn’t one. It must be considered in some way at an earlier point, even though the judge will then have to follow all the steps in order to set the minimum term.
Q94 Mr Buckland: It is to you, Professor Ashworth, that I want to address a question about the somewhat dual role which has potential for confusion between the Court of Appeal’s existing role in setting guideline cases and the role of the Sentencing Council. Do you think that there is a confusion and do you think that is an issue that needs proper resolution?
Professor Ashworth: If I might say so, I think it is a larger issue than that because I think you also have to add the Judicial Studies Board into the mix, so there are three institutions. Certainly during the period when I was on the Sentencing Guidelines Council and the Advisory Panel, there was not much evidence of joined-up operations. At that time, there was some close interaction between the Court of Appeal and the sentencing bodies because, as you may remember, when Lord Judge as Lord Chief Justice found that many of the trial judges were finding difficulties with the burglary guideline, the official bodies were set to work on the burglary guideline but he, in the Court of Appeal, decided to make a judgment which set out a revised approach to burglary.
Q95 Mr Buckland: R v Saw.
Professor Ashworth: R v Saw. That was obviously carving out a role for the Court of Appeal. It is too soon to say whether the Court of Appeal will continue to play that role as a kind of interim body, dealing with things because of the inevitably slow progress of the Council. That is one issue. I think also the Judicial Studies Board and its training function need to be brought into this. There is some evidence from the past that the three organisations do not always work smoothly together and that communications aren’t always as good as they might be.
Professor Hutton: In Scotland, in the new Sentencing Council, the guidelines have to be approved by the Court of Appeal, so there is a clear relationship. I am not sure if I think that is the right relationship, but that is the relationship that Parliament has decided on.
Q96 Chair: So the Court formally approves the guidelines?
Professor Hutton: Yes. The guidelines will be devised by the Sentencing Council when it comes into existence, but the Court of Appeal has to give approval, so the judges retain overall control of sentencing.
Q97 Mr Llwyd: The new guideline requires sentencers to focus on culpability and harm rather than premeditation in determining the seriousness of the offence in the first instance. Do you consider this to be a reasonable approach?
Nicola Padfield: Who are you looking at?
Mr Llwyd: I am looking at all three of you. I am thirsty for knowledge.
Nicola Padfield: It is not new. I will just speak briefly. Culpability and harm have been with us for ever, as far as I know. I remember section 143 of the Criminal Justice Act 2003, which constructed sentences in this regard. I don’t think any of us thought it was very surprising, so there is nothing novel in saying that sentencing is very difficult. You have to balance culpability and harm-yes.
Professor Ashworth: But the strangeness of the existing assault guideline is that premeditation appears in three of the four boxes, and that was what judges were finding difficult to cope with, because premeditation should be an aggravating factor. Perhaps it should leave things in one box, but it should not be in three separate boxes. As a member of those two committees, I still scratch my head and wonder how we ever came to issue a guideline which had premeditation in each of the three boxes. I have been back through the papers and I can’t understand how it passed through the two bodies, but it did. When you look at it now as compared with the one that is being consulted on, the old guideline looks very strange with premeditation in each of the three top boxes. Clearly the idea of bringing premeditation in on a sliding scale and as one of the issues that the court looks at when it is considering culpability must be right.
Q98 Mr Llwyd: The Council has shifted from establishing starting points for the level of sentence for a first-time offender who pleads not guilty to an approach based on a categorisation of the seriousness of the offence. Again, is this an appropriate approach?
Nicola Padfield: I think it is very sensible that the Council has moved away from saying this is a guideline based on a first-time offender pleading not guilty, because you don’t very often see a first-time offender pleading not guilty. Therefore it is useful that you are not starting with that, as it always felt to me a slightly artificial starting point. The problem, of course, is that the new Sentencing Council leaves open the big conundrum that we’ve always had, and we always will have, I fear, about to what extent do previous convictions make this worse and to what extent does the clean record act as a mitigating factor? We have problems with "how long is a piece of string" if we do things too quickly.
Professor Hutton: I think it is a sensible change and it does allow judges to go below the guideline if someone has a clean record. It allows more mitigation for someone with no previous criminal convictions.
Professor Ashworth: If you look at the two stages that are being proposed, previous convictions don’t come into step one at all. They come in at step two, which is once the court has decided on the starting point and moved it up or down a little to reflect any of the aggravating and mitigating factors at step one. At step two, previous convictions or previous record come in. Of course, in theory, because it is quite clear from this proposed guideline that the court can move down for a clean record and move up for a bad record, the starting point must assume something. It seems almost to assume an offender with one previous conviction, in the sense that you can move down for no previous convictions and up for many. I don’t know whether that is a theoretical complication. I hope someone will tell me that that is just academic nonsense and that this is perfectly workable in practice, because I can see that there is a problem in the existing guidelines, as many judges believe that the guidelines are not helpful in relation to most of the people who stand before them because most of them have previous convictions.
Q99 Mr Llwyd: I have just one other question, if I might. The Council proposes adding youth, or rather lack of maturity, as a mitigating factor which would determine a lesser culpability. John Thornhill, the Chair of the Magistrates Association, came before us a few weeks ago and he agreed, but he was wondering how this lack of maturity would be measured, by whom and what exact information would be given to the court to inform their decision. I suppose what I am asking is: how can the concept of maturity be applied with consistency?
Professor Hutton: That is a very difficult issue. I am assuming that that sort of information might be in a pre-sentence report, and in Scotland in a social inquiry report it would be common practice now to comment on maturity. I think it is such a difficult issue that you have to rely on judicial discretion to make a judgment about maturity.
Q100 Chair: I find this all slightly puzzling, because isn’t almost anybody who is in front of you, by your view of society, lacking in maturity?
Professor Ashworth: This is certainly an issue in relation to youths under 18, where the courts are urged not to take the chronological age but to look at this concept of maturity. It will not get any easier if we extend that up to the 18 to 25 age group.
Q101 Mr Llwyd: I put the question, because it is something that has arisen in our deliberations, but, in practice, over the years that I have been in practice, it has never been a great problem, to be perfectly blunt. I was interested in your views; thank you.
Nicola Padfield: It is a difficult issue, but it is important that there is power for the judge, especially if the guidelines are going to be a little bit more rigid, and that there is discretion to show some concession for human frailty, if you like. That is all part of culpability. You are less blameworthy if you are significantly immature-or you may be.
Q102 Chair: Part of our job is to reflect what might be public concerns. There might be quite a lot of public concern in general, although not necessarily in some particular cases, at the thought that, for example, somebody’s lack of maturity was an extenuating circumstance when they engaged in domestic violence. Of course, it was immature to deal with a domestic disagreement by hitting your wife. The idea that the immaturity in some way mitigates the culpability in that circumstance would not be a widely popular one, and for good reason.
Nicola Padfield: Of course.
Q103 Yasmin Qureshi: I want to go back to the point my colleague first raised about premeditation, and the guidelines saying that we must focus on culpability and harm rather than premeditation in determining the seriousness of the offence. Professor, you were saying that this comes up all the time in different categories-not looking at premeditation in sentencing-but some offences, as you probably know, depend very much on the premeditation aspect. For example, you have murder, you have manslaughter- involuntary manslaughter, voluntary manslaughter-where the premeditation aspect is in fact almost crucial to the definition of the offence. Involuntary and voluntary manslaughters can be categorised so many different ways when someone carried out the act that led to somebody’s death. Surely saying that you can’t look at, or not give much priority to, what was going on in someone’s head when they took the action that they did, doesn’t that cause problems in a number of cases when it comes to sentencing?
Professor Ashworth: No; that was not my intention. I agree entirely with what you say-that premeditation or not is an important issue in determining the level of culpability. My point was merely that in the existing guidelines which are in force, if you look at assault occasioning actual bodily harm, the top category is premeditated assault resulting in serious injuries. The next one is premeditated assault resulting in relatively serious injury and the next one down is premeditated assault resulting in minor injury. The point was there is just too much premeditation in there when that particular offence-section 47-is one that is often committed recklessly rather than with intention. I am really saying that I think the Council is right to move away from the formula of the existing guideline.
Q104 Chair: One other issue that was raised with us was whether an offender’s personal circumstances, such as caring obligations, should be an explicitly recognised factor in guidelines or not. Do you have any views on that?
Nicola Padfield: My answer to that question is that we should do more research at the moment to discover those factors and the influence that they are having. It makes sense, and we all understand why the Sentencing Council has moved ahead on this guideline as it is, but from where I stand there has been remarkably little research recently on what factors really do count in sentencing. We have some evidence on why some sentences are coming in low on the guidelines, but why we don’t know. I would hesitate to answer your question without pushing hard for more empirical research.
Q105 Chair: What about the theoretical possibility? Is it right or is it wrong to make this an explicit issue in guidelines?
Nicola Padfield: Which particular issue?
Q106 Chair: The personal circumstances of the person being sentenced-the offender.
Nicola Padfield: It is very difficult to write down all the mitigating factors which apply. That has always been a problem with guidelines. It is much easier to identify aggravating factors than it is to write down mitigating factors.
Q107 Chair: How easy is it for a court to be satisfied on issues of mitigation like this, which may be covered in the pre-sentence report but which may be open to challenge? Is the court in a good position to make assessments of that kind when it considers taking them into account in giving a sentence, if someone makes a claim that they have an almost 24-hour requirement to look after somebody in their family, whoever it may be?
Nicola Padfield: You raise a really important question about the amount of time we allocate to the sentencing decision. Your question sort of implies, "Wouldn’t it be nice if we had much longer to make the decision about sentencing everyone?" The reality is that sentencing happens, I think, remarkably swiftly, and we don’t explore all the issues to the extent that we should. One of my concerns generally in this area is that we see sentencing as a one-off event which happens in court very quickly. If we could shift to thinking about sentencing more as a process, thinking about recalls, for example, as all part of the sentencing process, and we got more comfortable with amendments of sentences down the lines for different reasons, the system would work better. But that is probably a very big issue for another day.
Q108 Mr Llwyd: Are you concerned that there are no real stand-down reports-in other words, reports produced on the day of sentence by probation officers?
Nicola Padfield: I think pre-sentence reports are very, very important, not only for sentencing but as the basis for sentence planning for those people who get custodial sentences and non-custodial sentences. It is very, very dangerous-risky, if you like-to save money on pre-sentence reports.
Q109 Mr Llwyd: But there is now, is there not, a target within the probation service for something like 30% or 40% of reports to be prepared on the morning? In other words, that would make it impossible, for example, in your case now, to decide whether 24-hour care were required for a relative or whatever. That would be impossible to determine or to even speculate upon. There is now a target that there should be 30% or 40% of these being produced. That is detrimental to the whole theme of what you’ve been saying just now. I agree with you, as a matter of fact, but I am just wondering whether you think there is an overuse of them.
Nicola Padfield: It’s a huge issue. We could go down the road of discussing legal aid and probation reports. The more information you have earlier on the better, but money is limited in the criminal justice system at the moment and we are, of course, concerned.
Q110 Ben Gummer: That leads very neatly on to the cost of sentencing reform. Where money is limited, the nexus between the cost-effectiveness of various punishments is something at which the Sentencing Council is required to look. Do you believe that the degree to which they have assessed the cost and effectiveness of sentences in their guidelines has been sufficient or do you think it could have been done differently?
Professor Hutton: In terms of the appendix which looked at the resource implications, if you are discussing that, they had an enormously difficult task, because they had to make all kinds of assumptions about how sentencing might be changed with the guidelines. It seems to me that there is very little evidence internationally that you could go on that would suggest that these guidelines would make very significant changes to sentencing. With regard to some of the estimates that have been made of switching from short custodial sentences to community orders, I don’t see any reason to think that is going to happen. I am quite sceptical about this, but I am not sure how else you would do that analysis. It is a very difficult task to be faced with.
Q111 Ben Gummer: Do you both share that opinion?
Professor Ashworth: I certainly do, because for 10 or 11 years on the Sentencing Advisory Panel we were under the same statutory duty to take account of costs and effectiveness and we found it terribly difficult to make any progress at all. Even to argue about costs is difficult, because you have to decide which costs are allocated to which sentence and which are not. It is not an easy operation. Then when you get on to effectiveness, as Neil Hutton says, the international evidence is not terribly clear. There are certain things we can say, but you can’t say a great deal when it comes down to the sort of detail required for these changes. I just think it is very difficult to come out with a clear answer.
Q112 Ben Gummer: So the fact that the Council is required by Parliament to consider this, I would suggest, has become another "dead letter", or there is need for further and more detailed research. What kind of approach would you take?
Professor Ashworth: I would certainly favour more research, but of course more research is expensive. As Neil Hutton says, we don’t only need the research on the effectiveness of sentences and costs. We need more research-and this is coming back to what Nicky Padfield says-into actual sentencing and what factors have what effects on courts. That is what we are lacking. There is the Crown Court Survey now, but that is on a rather modest scale.
Q113 Ben Gummer: Given your comments earlier, Professor Hutton, about the extent to which the system in Scotland has fallen into desuetude, how would you approach a reform of the Crown Court Survey, if that is what is needed, to provide more robust evidence both to the Council and to judges?
Professor Hutton: The one-page form is collecting information, particularly on aggravating and mitigating factors. I am not sure how that is going to be helpful in allowing us to understand more about the sentencing process and how judges make their decisions, but I can understand why a one-page form came at the end rather than a 30-page form, which was suggested at the beginning. When we were designing the Sentencing Information System the judges wanted to include hundreds of factors, and it was the job of the research team to try and narrow it down because the hundreds of factors would have been unmanageable and would not have helped to give us any greater insight.
I am afraid I don’t have a simple answer to your question. I favour more qualitative research with judges, and working with judges to look at particular types of offending, not necessarily as they are defined in the criminal law but as they are defined for sentencing purposes. The criminal law is designed to charge people and to go through certain formal court processes. But when it comes to sentencing, for example, for child abuse, judges see that as a kind of offence, but it is not labelled in Scotland as child abuse; it is a number of different sexual offences which are added together. Talking about sentencing of child abuse cases might lead to a more general approach to sentencing that kind of offence than trying to count the number of times particular factors turn up. I would favour a more qualitative research approach working with judges.
Q114 Ben Gummer: That is a very interesting response. I suppose the complaint of the judiciary is that they don’t want to have to fill out a huge form every time they sentence someone. On the other hand, if the Council is going through a process of looking at a particular offence, some robust, penetrative, qualitative research in that area over a long period of time might produce something more worthwhile. Are you all in agreement about that?
Nicola Padfield: I think there are unreasonable expectations hanging on this survey in many ways. It is a very simple one-page questionnaire. It doesn’t ask a lot of questions which would have been helpful. Very often a sentencer is sentencing for a number of offences at the same time, and has to fill in the form in relation to the principal offence only, which I think skews the results immediately. The choice of principal offence is going to be a difficult one. I am certainly with Professor Hutton that we need more qualitative research. This is going to pick up, of course, what the sentencers choose to report at the end of a busy day in court. Indeed, they may fill it in earlier on. I have small concerns as to whether the questionnaire itself may affect sentencing decisions. The Court of Appeal has held that judges are entitled to use it as an aide-memoire when it certainly wasn’t designed as such. There are many questions, and I am sure Professor Ashworth has views on this too.
Professor Ashworth: Yes, but they duplicate yours.
Q115 Elizabeth Truss: I wanted to ask two different questions on the subject of costs. First, is there a danger that, because it is under the auspices of the Sentencing Council, we are looking at costs within the criminal justice system and not costs across the broader public services? The costs may be passed on to health services or social services and there is a danger of that. Secondly, what is the international evidence on the most effective countries in terms of assessing the costs and benefits of their criminal justice systems and reacting accordingly?
Nicola Padfield: The first question is much easier to answer than the second question, so I will choose the first question, which is, again, the unreasonable expectations hanging on the sentencing system. I am sure that we would all say quite easily-and you would all agree with us-that there are unreasonable expectations that the sentencing system reduces crime out there. The problems of crime are way beyond what the sentencing system can achieve and we all have to understand that. It is not the sentencing system; it is not the penal system which is going to reduce crime. The issue of crime in society is much, much bigger than that and goes beyond the small numbers of criminals who are in fact convicted and sentenced. There are many reasons why the Sentencing Council in its public awareness function has a really useful role to try and convince the public that sentencing is not going to achieve what everybody wants it to achieve. That’s the first part. Of course, there are much, much broader social, health and educational factors involved in reducing offending than anything that can be done simply by a sentencing system. In terms of the international comparisons, I am not in a position to be able to give an answer to that.
Professor Hutton: On the first point-the evidence, for example, about the effectiveness of community punishments internationally-very rarely do you get any punishment that is more than 30% effective. That tends to be interpreted as, "Oh, community punishments don’t work." I would turn that upside down and say that 30% is a pretty good rate to get people to change their lives because it is a very difficult thing to do.
Q116 Elizabeth Truss: When you say 30%, what does that mean?
Professor Hutton: That means that, if three people serve the penalty, one of them will reduce their offending and the other two will go on to reoffend. There is an assumption made that that is not good and there is a problem with these community orders. I think changing people’s lives is incredibly difficult, especially for the chaotic and difficult lives that some of these young people lead. We should say that that sort of level of success is about the best we can hope for and try and find the best schemes with that level of success and use those where we can. Then it is for society to decide whether we want to spend that money: whether we think it is worth spending the money for one in three people to reduce their offending behaviour.
On the international evidence, there are some American states which set a budget for their penal corrections expenditure and they write guidelines which will allocate people to punishments according to that restricted budget. That seems to me to be a perfectly sensible public policy decision that a Government could make, instead of saying justice has no cost, because we all know that justice does have a cost and a price. It would be possible in theory to do that. It has not been suggested in Scotland and the judges, certainly, would disagree with that.
Professor Ashworth: I agree entirely with that. One of the sad facts is that the various measures available to the courts don’t seem to produce radically different outcomes. Indeed, all of them are less powerful as predictors of future behaviour than the number of previous convictions someone has.
Q117 Chair: Sorry-all of them are less powerful?
Professor Ashworth: Less powerful than the number of previous convictions a person has, which means that they are highly likely to reoffend. That tends to be a more powerful factor in predicting the future than what type of sentence they are given on this occasion.
Q118 Elizabeth Truss: This is slightly off-topic. Does that mean that there should be more focus on stopping people offending in the first place relatively in our system?
Professor Ashworth: That gets back to Nicola Padfield’s point, which is that one can’t expect the sentencing system to be changing people’s lives. There have to be things done in society outside of the sentencing system, whether preventive, restorative or whatever they happen to be. Simply the magistrate or judge in the court handing down a certain sentence to the small minority of offenders who are caught and sentenced is not going to alter the crime rate generally or, necessarily, the future behaviour of those few.
Q119 Mrs Grant: My questions relate to public and victim understanding of the guidelines which you have touched on already. Could you explain what sort of advice you would give to the Sentencing Council on those issues and managing those expectations of victims and the public? That is a question to all of you.
Professor Hutton: I was a bit sceptical about the quality of the data, but the fact that judicial practices are being monitored, I think, for the first time by the Crown Court Sentencing Survey, and we will be able to report on the extent to which judges are adhering to guidelines or departing from guidelines is very helpful. Having guidelines but not knowing whether judges pay any attention to them or not is not good or useful for improving public confidence. I think that is a good measure for improving public confidence.
Secondly, I think the step approach, which we don’t have in Scotland, is a logical and clear way of explaining to the public, at least in theory or in principle, how sentencers go about the task of sentencing. I think that could be helpful. Thirdly, I think the Council should engage with the public in trying to explain how sentencing works. With the kind of deliberative polling technique that the Council has recognised, where you get a number of people together and you give them information, you speak to them and you allow them to engage in dialogue, people get a better understanding of sentencing and their views are less punitive than if measured by a simple British Crime Survey question of, "Do you think the courts are too lenient or too severe?" Measuring public opinion is best done by deliberative polling. I think the Council should engage in that. Also, it is a way of communicating with the public and a way of generating evidence.
Q120 Mrs Grant: Do you think the public are more satisfied in Scotland as opposed to here?
Professor Hutton: I don’t know the answer to that. The responses of Scottish people in surveys are much the same as in England. If you ask, "Are judges too lenient or too severe?", people say they are too lenient. Everybody knows that judges are too lenient. It is a kind of knee-jerk, off-the-top-of-the-head reaction-yes, that’s the answer to the question. If you get people round a table to discuss things, the research we did in Scotland showed that the punitive level drops and people choose a sentence which is very close to the sentence that would be chosen by the court. I would not speculate as to whether there is much difference between England and Scotland on that.
Q121 Chair: In Scotland, would you say that people think that the Children’s Panel system is too lenient?
Professor Hutton: I don’t know if there is evidence on that, I am sorry. I would have to go and research that. I am not sure whether the public have been asked that question.
Nicola Padfield: This whole victim and public confidence issue is a really interesting and difficult question. It has to be a two-way process also. I am hoping that the Sentencing Council is going to have the confidence, in a sense, to try and lead public opinion by putting more information into the public domain. Certainly the more we have by way of public consultations and clearly written documents can only be helpful in terms of public education. I will say no more because I am going to repeat what you have just said.
Professor Ashworth: I agree with all that has been said, except that I am not sure that I agree with Neil Hutton’s second point, because the two-step approach which we are now seeing in the consultation guidelines doesn’t seem to me to be entirely logical. I am not sure, therefore, that it will help the public and victims to understand. At stage one, we have certain aggravating and mitigating circumstances which are taken into account in how far the judge should move away from the starting point, but then in step two, we have other factors like the location of the offence, the timing of the offence and the ongoing effect on the victim. I am not sure what separates those from step one. I don’t see any logical separation. There are other things at step two which are more logically there, like, as we were discussing earlier, previous convictions, things like the guilty plea and all those other effects, and personal mitigation, which may well be step two, but I am not sure on the actual division that the Council has settled on whether that is going to be helpful in communicating to victims and to the public how decisions are being made.
Q122 Mrs Grant: Could you all again, please, let me have your views on the proper use of victim personal statements and at what stage in the sentencing process they should be brought in?
Nicola Padfield: In practice, I think they are fantastically useful. It is very important that they should be discussed with the defendant. It is a way of bringing home to a defendant the reality of the harm caused by their crime. Judges and magistrates when sentencing often refer to the victim impact statement, so it is an enormously useful document normally which does underline the harm that has been caused. The recent developments in their use and their being mentioned in court have to be welcomed. That is a completely different issue of course from mentioning whether the victim should have any say in the actual sentence. That is a completely different issue, but the victim impact statement has been very useful in putting the victim’s view more centrally to the court.
Professor Hutton: I would agree with that. I have nothing to add.
Q123 Yasmin Qureshi: I have a question arising from the victim personal statement. I know this process started to take place some years ago, but have you spoken to anyone or are you aware of the fact that there are a number of people within the criminal justice system do think-and I say this very cautiously-that quite a lot of time the victim personal statements in a number of cases do, to use the colloquial expression, "gild the lily"? I am going to declare here that I was a practising barrister in criminal law before I became a Member of Parliament. Even as defence counsel and as prosecuting counsel I did look at quite a lot of these victim impact statements and I thought, "Come on, you are gilding the lily here. I find it quite hard that you’ve really got that impact that you are saying you have." That happened in a lot of cases. In the very, very serious cases, nobody would have any dispute about it, but most criminal cases that come before the courts are on the whole of a lesser degree of seriousness-offences of assaults and things. Does anybody now consider the question of whether perhaps these victim personal statements in a lot of cases should not be that important in determining sentence because of the fact that people do have a tendency to exaggerate?
Chair: It is the same question, in a way, that I was asking about mitigation as to whether that lily is gilded as well. Do you have any thoughts?
Yasmin Qureshi: Am I being very controversial here?
Professor Ashworth: Procedurally the answer is that the defence are able to, and should, challenge any point in the victim impact statement which is not properly evidenced. I think the defence should challenge that. It obviously is a difficult thing for them to do and it might rebound on them, but if they are confident that there has been an exaggeration the defence should challenge. There is plenty of authority to say that the prosecutor should challenge any excessive statements in relation to the defence too.
Q124 Yasmin Qureshi: But, in reality, when I see a statement saying, "I was really, really distressed and I can’t sleep any more", it is going to be very difficult for any defence counsel to say, "I’m sorry, I challenge that."
Professor Ashworth: But exaggerating losses from a burglary or something like that is hard.
Q125 Yasmin Qureshi: That is right. I have seen so many written statements where I am not convinced entirely about the full extent of the victim harm that has been expressed, but it is going to be impossible for me to legally challenge it or say that that is not right. Maybe on a financial issue such as, "I’ve lost £10,000", yes, that is something I know I can challenge because that is a different ball game, but when it is about emotions and feelings and "I’m crying every single day" and that kind of thing, you can’t really challenge those things. I do wonder whether sometimes the pendulum is swinging the other way in this.
Nicola Padfield: If we were a postgraduate discussion group at this moment, I would say to you, "I feel a PhD coming on." What we need is much more evidence. Who is going away at this moment and researching victim impact statements to discover the extent to which your hunch is true or not true? What a really interesting subject to dig into. Again and again, we, inevitably, will say to you that we don’t really know very much in criminal justice. There is very little research. What we want is much more research in all these areas. That is a really interesting question and nobody can answer it at this moment.
Q126 Chair: It would be quite hard to get the co-operation of the research subjects on an issue like that.
Nicola Padfield: Not necessarily for the right PhD student with no agenda.
Q127 Mrs Grant: But there has to be a common-sense element to this. If the allegation is that a woman or a child has been raped, then of course they are not going to be sleeping at night, are they?
Nicola Padfield: Yes.
Yasmin Qureshi: And nobody can argue against that. I am not thinking about really serious cases. I am talking about the fact that we get victim impact statements now in sections 4 and 5 Public Order Act offences and for minor common assaults. I came home once and found a burglar dismantling my TV and everything, and I just chased after him. There are more serious things than that, but what I am talking about are the lesser offences. I don’t think anybody has any doubt about murders and rapes and things like that and the impact on victims and their families. It is just all the other lesser offences.
Q128 Ben Gummer: Ms Padfield, you lead on to a general question that I would like to put to you all, because it is apparent to anyone who has a cursory interest in criminal justice that the level of research is very limited, whether it is efficacy, process, decision making or cost-effectiveness. Again, this is a completely uninformed point of view, but it also seems that the commissioning of research is rather haphazard, and also the interrelationship between the various bodies who might be interested in that research, as you alluded to earlier, is not as developed as it could be. I am aware that I am about to invite a large degree of special pleading for research and criminology departments and jurisprudence faculties, but do you have any ideas about how we could improve the amount of research we are doing, especially international comparative research, how we could better direct resources and how the criminal justice system could procure the kind of information and data analysis that it requires?
Professor Ashworth: I think historically there have been two problems. One is funds, of course, and the other is access. I entirely agree with my colleagues as to the sort of research which we require. The qualitative research which involves perhaps sitting with a judge and discussing cases as they go along is much more likely to yield usable information than filling in a little form. But would the judges give access to that sort of thing? Historically, it has been very difficult to achieve. Access is one issue, as well as the financial issue of funding the research.
Q129 Chair: Interestingly, the Committee-and most of its current members were not serving on it at the time-when looking at the experience of some other European countries like Germany found that a common comment was, "Some of the best research material is coming from Britain. We are using it and you are not." They place considerable reliance on some of the criminology that is done in this country and saw our system as one which was failing to make use of what was already available.
I think this was something that Nicola Padfield said, but others may have views. Is it a realistic objective to expect the guidelines to be directly useful to the general public in understanding how the system works, or would that require them to be expressed in terms that didn’t meet the need for sentences to have clear and detailed guidance? Should th e guidelines be written by the plain English s ociety or whatever in order to produce something that is very readily publicly accessible, or is that an unrealistic objective and should the public communication be dealt with in other ways?
Nicola Padfield: There is no such thing as "the public" of course, and there is no such thing as "the victim". Some victims will find it very useful to be told that "A guideline exists that might help you understand why he only got three years." Other victims won’t find it useful to read it. In terms of generalising, we have to be very careful what we think victims want. The prime function of these guidelines has to be structuring judicial discretion. As far as I am concerned, the fact that they also help victims and the public to understand what judges are doing is a secondary point.
Professor Ashworth: I think it is worth mentioning that the existing system has two forms of guidelines. We have the Magistrates Court Sentencing Guidelines, which are in a rather more simplified form than the general guidelines which are used in Crown Court cases. It is an ambition of the new Council to bring those two modes of guidance together. Whether that will work I’m not sure, but that is one of the things that they have in mind to do. When you look at the two pages here, it is reasonably complex. Whether it would be suitable for lay magistrates it is difficult to say, but I think there is an issue there and that issue goes on also under the assault guideline to the fact that, if the assault guideline is promulgated as it now stands, it will bring in a different sort of judicial and magisterial reasoning from the one that exists in all the other guidelines.
We are going to have a very, very difficult period where change is going to have to be managed, because in this guideline we have starting points which are not based on a first offender pleading not guilty, whereas all the other guidelines are still based on a first offender pleading not guilty and being convicted after a trial. One can understand that all the training that has gone in to get magistrates to follow their own guidelines, and getting the Crown Court to follow their approach, is going to have to be unscrambled if this new approach is taken forward. Of course, that can’t be an argument against making any change at all or else we will be stuck in a rut. All I am saying is that the change will have to be managed very carefully.
Q130 Chair: Do you think that that point ought to be brought out more clearly: the change from no previous convictions to likelihood of previous convictions?
Professor Ashworth: Yes. It is clear enough in the document. My worry is how that is going to affect the sentencing behaviour of magistrates who have to sentence one way in assault cases and another way in all other cases, and judges as well.
Professor Hutton: My view is that the previous sentencing guidelines in England and Wales were pretty clear and were written in fairly accessible English, not terribly technical, and were actually very good guidelines. If I was recommending guidelines in Scotland, it would be narrative guidelines of the sort that are used in England and Wales rather than a numerical grid system that they adopt in the United States. Although I said before that in principle having steps is a good thing, I do agree with Andrew that once you get into the steps it gets a bit more complicated. For example, it is hard to see what the point of having categories is if judges only have to sentence within the offence range and can depart from that in the interests of justice. An interested member of the public might say, "What’s the point in having categories then if you can switch?" Then it becomes a little less clear, but the fact of having a step process is a good idea.
Nicola Padfield: If we are commenting on the management of change, we of course have to add into the mix any future Criminal Justice Bill or Sentencing Bill which is likely to come forward in the near future. Yes, it is a nightmare working out how you implement change in this area and starting to look at guilty pleas and the totality principle. Every time you change something, the Sentencing Council has a challenge which should not be underestimated.
Q131 Chair: I think the Government has expressed a reluctance to bring forward more Criminal Justice Bills for the time being, haven’t they?
Professor Ashworth: But they do have a Green Paper out at the moment.
Chair: Thank you very much indeed for your help. It is much appreciated.
|©Parliamentary copyright||Prepared 17th January 2011|