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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1211 -i
House of COMMONS
TAKEN BEFORE the
DRAFT SENTENCING GUIDELINE: BURGLARY AND DRUGS OFFENCES
Wednesday 15 June 2011
Tamar Good, Roger Howard and MiKe Trace
Dr James Treadwell, Javed Khan and Professor Mike Hough
Evidence heard in Public Questions 1 - 61
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Taken before the Justice Committee
on Wednesday 15 June 2011
Sir Alan Beith (Chair)
Mr Robert Buckland
Mrs Helen Grant
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: Tamar Good, Hibiscus, Roger Howard, CEO, UK Drug Policy Commission, and Mike Trace, International Drug Policy Commission, gave evidence.
Chair: Good morning and welcome to Mr Howard, who is Chief Executive of the UK Drug Policy Commission, and Ms Good from Hibiscus. Mr Trace, from the International Drug Policy Commission, is delayed, I think. If he is able to join us at some point during the proceedings, that would be fine.
We are very glad to have your help. As you know, we look at sentencing guidelines when they are brought forward from the Sentencing Council and this morning we are looking at drug offences and burglary. We are going to start with drug offences and Mr Buckland will put some questions.
Q1 Mr Buckland: Thank you, Chairman. I should make a declaration that I am a Crown court recorder, and I do so. Can I, first of all, deal with the question of weight of the drugs? I think we are all familiar with the framework as it currently operates and what the proposals are. As I understand it, in effect, a different approach is being proposed as to the quantity, for example, in cannabis cultivation. Instead of just looking at the weight of the drug, the scale of the operation is to be looked at. First of all, what strikes me is whether, in fact, it is a radical change of approach, bearing in mind that, in reality, sentencers would already look at the scale of the operation. What are your views as to the situation, also taking into account the fact that very often, with cannabis cultivation, it depends when police officers do "the knock" and very often it is an exercise of police officers having to estimate what the yield would be if, for example, they catch cannabis plants at the early stages of cultivation? I would welcome your views about that.
Chair: We have been joined by Mr Trace and I welcome him as well.
Mike Trace: Excuse me for being late.
Chair: Not at all.
Roger Howard: If I could make a general point first, the UK Drug Policy Commission broadly welcomes what the Sentencing Council has set out in the guidelines. It is a very complex algorithm, if you like, trying to bring together issues around quantity, purity, value, culpability and things like that. I do not think it is an easy task and there is no absolute scientific formula that gives you a clear indication. Having said that, the move towards factoring in such things as the culpability and the role, within not just the cannabis production but generally, is quite a reasonable approach, given the circumstances.
We have reservations about the methodology and the underpinning assumptions that are made about weights. As I understand it, we are dealing with-and the guidelines reflect this-custom and practice. You may want to get on, in a minute, to thinking about what happens in other countries because one might reasonably say that the threshold levels-the threshold quantities that are being proposed-are quite low, particularly for possession offences. In a way, the threshold quantities define what a possession offence is and then what goes into a supply offence and cultivation.
If I could say this now, we think there should be further work done between the Sentencing Council, the Advisory Council on the Misuse of Drugs, The Association of Chief Police Officers, the CPS and other groups to try and define quantity and the threshold about what is reasonable for everyday use-whether or not it is a week. Some countries-Portugal, for example-allow a week’s use. In other countries, like Norway, it is much less. There is no right or wrong answer. With cannabis, you are right in saying when police might intervene and things like that and quantity could vary. In terms of quantity of plants, again, other countries have different thresholds by which they regard the cutoff points to be reasonable.
Q2 Mr Buckland: Do you think the concept of thresholds is, itself, a bit arbitrary? For example, you could have offences that just go over the threshold but are not very different from offences that are just below the threshold?
Roger Howard: Indeed. As I say, other countries do it differently. One of the important things is what you want that threshold to do. Is it to help frame sentencing? Is it to help, perhaps by diverting offences through a precourt disposal and things like that? It is very unclear what is being asked of setting the threshold. Again, there is a need for more clarity around why we have these thresholds, how they have developed and what the rationale is. Having said that, the basic principle, and using it for quantity and not particularly using it for purity or value, is very sound.
Q3 Mr Buckland: As you have quite rightly begged the question about international comparisons-and we are delighted to have you, Mr Trace, and thanks very much for coming-this question is really directed to Mr Trace about international comparisons. What is the approach internationally to the issue that we have been talking about? Do you have any comparisons for us?
Mike Trace: Yes. The short answer is that every administration struggles with it. Thank you for the question and the invitation. First of all, to give you the perspective from which I am speaking, quite rightly, I speak on behalf of the International Drug Policy Consortium. What we have tried to do with this consultation is gather information from other countries around the world, from our membership, to see how the UKproposed approach to these issues relates to international experience. Roger has framed the issue that you raise around thresholds absolutely correctly.
First of all, the advice would be that there is no mathematically correct solution. That would then lead you, whatever the guideline finally says, to allow an element of discretion around thresholds because, if you try to set absolute amounts, you get into the problem you raise about the 1g below or 1g above. You also get into a very difficult mathematical problem because, as soon as you start talking about thresholds, you then have to talk about purity and volume and turning volume into what was the active ingredient of the drug. That is a big mathematical problem. The general advice is to allow flexibility to sentencers within guidelines of thresholds with due note, as we all know in sentencing areas, to not opening wide areas of inconsistency-different sentencers responding to that in different ways.
This one is a very difficult area of the guideline, but our general advice would be, first of all, to avoid the temptation to set thresholds too low because one possible reaction to the difficult mathematics is to go very safe and then set thresholds very low. A lot of countries are struggling with that because they have created the conditions where there is no flexibility in sentencing and everybody gets the highest possible tariff-possession or possession with intent to supply-and those are challengeable under international human rights conventions.
The second one is to do what the Sentencing Council is trying to do. They talk about thresholds and amounts in terms of a proxy measure of the harm caused by the behaviour. The harm caused is a very imprecise concept, but it is the right starting point. Obviously, the harm potentially caused to UK citizens by 100 g of cocaine coming through Dover is different to the potential harm caused by 1 kg or 10 kg. That is the right way to think about amounts. Unfortunately, it is not a linear relationship. For example-and this is an extreme example-sometimes the harm to the UK citizens is caused by the cutting agent. It is not caused by the substance itself. If you go too far down the line of saying, "We need to identify the active ingredient and that is our basis of calculation," that is not the best proxy measure of the harm caused. It is a very imprecise science and the mathematics around it are very difficult. At the same time, the Sentencing Council-I think quite rightly-is very conscious of not creating too wide a discretion because part of the important responsibility here is consistency. It is a very difficult tightrope to walk.
Q4 Chair: Is all this mathematics just designed to answer the simple question, "Are you a user or are you an importer?"
Mike Trace: And scale of involvement in supply or importation. The idea is that somebody who imports a larger amount is more culpable than somebody who imports a smaller amount. But how do you calculate the amount to work out whether they are a major importer or a minor importer? The thresholds apply at different levels of the consideration. The most important one for differences in sentencing is the one to make a decision between possession and intent to supply. That is where a lot of people under low thresholds get caught up in what, probably, is a possession offence-you can never be sure-and get dealt with as a supplier.
Where sentencing guidelines are imprecise and inflexible, one of the problems is that people get four, five or six year sentences for what is probably a possession offence, whereas somebody else, a gram or microgram lower, will have been dealt with as a possession offence. It is a really difficult threshold to set.
Roger Howard: Could I add, I think also not just on supply but for production and cultivation with cannabis, particularly-and that obviously has been a growing public and political concern-again on that threshold of what is reasonable. In some countries it might be five plants and in other countries 15 to 20 plants. There is no international consensus on that, which is why I think perhaps a missing piece of this process is-and I am sure the Advisory Council will give a response to the Sentencing Council-that there could be an iterative or a consensusforming process bringing people together. It does not only affect the guidelines for the courts. It affects what the Crown Prosecution Service and the police do in terms of their actions, which I think is absolutely critical.
Q5 Mr Buckland: Yes, I will come on to that. There is an issue that brings that into stark focus. Dealing with the scale of operation approach, it seems to me to make a lot of sense, when it comes to cannabis cultivation, for the point that we agreed upon earlier about it being a question of timing of the police raid and luck in terms of the actual yield as opposed to the potential yield. Do you think the scale of operation approach should be applied across the piece?
Roger Howard: I think it is quite reasonable because it is a proxy, in a sense, for culpability and role in the market and things like that. I am not aware of any evidence that has examined and looked at the different implications of that. There may be some, but I am not aware of any evidence that has looked into that. Therefore, we are perhaps dealing with anecdotal evidence, which may be very relevant. I am sure you are quite right about that stage in the process, and particularly I am thinking around homegrowntype cannabis where people are doing it for themselves. Are they intending to sell on or is it for their own personal use? Again, those thresholds are difficult.
Q6 Mr Buckland: But in cultivation of cannabis, the court will look at things like the sophistication of the devices.
Roger Howard: Indeed.
Q7 Mr Buckland: A huge hydroponic device in a purposeconverted shed or even house will tell you that this is a commercial operation-
Roger Howard: It is an aggravating factor, isn’t it?
Mr Buckland: -as opposed to a couple of pots in the window, for example. Are you saying this, in effect? Where we have hard and fast pieces of evidence-for example, the seizure of 1 kg of cocaine with a high purity of 45%-the approach that is being advocated in the cultivation of cannabis context will probably not be advisable because we have hard and fast evidence as opposed to anecdotal evidence when it comes to an actual seizure of an amount, say, of a class A drug.
Chair: We are going to turn to the purity issue in a moment.
Roger Howard: It is very difficult. As Mike says, that is where the court needs that discretion. One might infer-if I could touch on purity-that the greater the purity, the nearer the upstream you are to the origins of the market. I do not think that is always true, and that is where discretion is needed. There are different circumstances on that. Again, cannabis growing is a good example for domestic cultivation for small amounts. In terms of culpability, it is a reasonable approach that the Council has tried to set out. For all the reasons that we have talked about, trying to put all this together is a very complicated algorithm.
Q8 Mr Llwyd: Moving on to purity, I should perhaps mention that I have prosecuted and defended several drug cases involving the whole issue. For the record, should purity be taken into account when determining the sentence, and if so, why?
Roger Howard: It is very attractive to go for purity, because it is a proxy for culpability and closeness to the origin of the market, and a role that one could infer from that. There are a huge number of pitfalls in doing so, which is why, in a direct answer to you, on balance, it is probably better to go for the quantity-the mass-of the product, bearing in mind that a huge volume of drugs are cut and are not pure. The reason for doing that is that forensics is an expensive business.
By way of reference here, my organisation has done a joint survey with the Association of Chief Police Officers which seems to indicate that forensics is going to be one of those areas on which police forces are probably going to be reducing their expenditure. When you come to large seizures and things like that, you will inevitably have forensics involved, just by dint of nature of the scale of the operation and the volume. In a sense, it lends itself to that. When you come down different market levels, you are more unlikely to get a forensic base there. Therefore, quantity, as a reasonable proxy indicator, is probably a more useful construct to use than purity. That is not to say it should be ignored, of course.
Q9 Mr Llwyd: Is that the view of the whole panel?
Mike Trace: I would agree with the way Roger has framed it, but the direct answer to the question is that purity is a consideration. The danger is making purity too mechanical a consideration. This is one of the strengths of the draft guideline produced by the Sentencing Council where it has taken this approach of trying to understand primary, significant or leading, significant and subordinate roles within the operation.
Purity sits as an element of the judgment of which bracket people should be treated under. The issue is-and once again this is in the draft guideline-what you consider as primary determinants of the sentence bracket and then what you consider as factors that affect the decision of whether somebody is treated with mitigation or aggravation. Purity, to me, falls more towards the secondary bracket than the primary, for all the reasons that Roger has suggested.
The general IDPC response to the consultation is going to say that the factors currently in the consultation talk about the role of the offender and the quantity of the drugs, which is where purity comes in. One of the general points we are going to make is we think that is overplaying the mathematics-the purity, the quantity-and underplaying the motivation. All the relevant criteria for assessing motivation are in the guideline but they tend to be relegated to secondary considerations where things like purity and amount are primary considerations. We would say that that balance needs to be addressed. The answer on purity is, yes, it should be taken into consideration-it is a key issue-but it probably has too much prominence in the draft at the moment.
The other thing about purity, and a purely technical issue, is that a lot of offenders are not aware of the purity of the substance of which they are in possession. Obviously, that creates a technical sentencing problem: if this is particularly pure cocaine, did the person in possession of it know that it was particularly pure cocaine? There is a wicked issue there for you.
Q10 Mr Llwyd: Ms Good, do you wish to say something?
Tamar Good: Thank you. The sentencing guidelines are welcomed by our organisation as a step in the right direction. However, I would say, from the point of view of drug mules, these are women-the women we represent-who are in extremely vulnerable positions and have no concept of weight or purity.
Q11 Mr Llwyd: Has the Sentencing Council got the approach to purity right and-Mr Trace might help us on this-what about any international comparators?
Mike Trace: Yes. I would reiterate my comments from before but also preface them by saying that this is not an area of my personal expertise. I will go as far as I can within the brief and information I have been given. My general point, on the first half of the question, is that the references to purity and the argumentation in the draft guideline is a pretty good summary of the difficulty of the issue of purity. However, the result and the recommendation in the guideline give too much prominence to purity to the detriment of other issues, for example, motivation, coercion and vulnerability of the offender. Generally, I would say that, from IDPC’s point of view, we would advise against taking too mechanistic an approach on the basis of purity and amount. The Sentencing Council is addressing that issue as well as it can.
As to the international experience, once again, I will be quite broad, I am afraid, but we can gather further information if it helps the Committee. We have pulled together seminars on these issues of people who grapple with these issues in a variety of countries and the international experience is that every country struggles with it. What most of us tend to do under the United Nations conventions is pass laws that have been quite specific on issues of amount and purity-so have set quite tight thresholds and mandatory sentencing based on those tight thresholds-and a lot of countries have struggled with the practicality of sentencing on the basis of those tight frameworks.
It is not really an issue for the UK situation now but there are a number of countries-a small number of countries-that are trying to toughen up their drug laws and show how tough they are being by setting low thresholds and strict limits or strict criteria around purity. First of all, we see those as technically difficult, for the reasons we are talking about here, but, secondly, there is a human rights aspect.
Q12 Chair: What is the human rights aspect? I know this was mentioned before. What is this area of challenge?
Mike Trace: Once again, speaking as a lay person and not a lawyer, it is around the issue of the proportionality and the effectiveness of the punishment. This is not something that is likely to come up in terms of this consultation in the UK, but in some countries, for example, they will have a mandatory penalty for anybody possessing over 5 micrograms of heroin-five years in prison-and that is challengeable under human rights legislation for proportionality and effectiveness of sentencing.
Q13 Mr Llwyd: Surely, under this jurisdiction, it is a question of-
Mike Trace: Excuse me?
Mr Llwyd: It is a question of a straightforward appeal if the sentence is disproportionate.
Mike Trace: That is right. It depends what jurisdiction you are in. Obviously, there is a wide range of processes around the world. As I say, I do not think this is going to be an issue in the UK, but it has been challenged in some countries. I do not particularly want to go into examples now, but there are some countries struggling with this.
Roger Howard: If I could bring the quantity and the purity together, I think there is one other complicating factor-I will mention it so as not to forget it-and that is the whole equivalents: how much quantity of ecstasy-MDMA-might be equivalent in harms to X amount of cannabis or X amount of other. The international experience is that you are everywhere and anywhere on a particular spectrum. If you look at the Netherlands, 0.5 g of heroin is equivalent to 0.5 g of cocaine. My understanding is that now, in the draft guidelines, that would be broadly equivalent. But if you went to somewhere like Italy, 2.5 g of heroin is deemed to be the equivalent of 7.5 g of cocaine. Therefore, you have an equivalence factor of 1 in one country and 3 in another. As to how to frame that, the Sentencing Council has said it does not want to get into the business of looking at particular drugs within particular categories, which is, I think, a very expedient principle, but most people would probably argue-and it has been a politically scientifically contentious issue-that the harms from each of these drugs are not necessarily equivalent. One needs that subtlety and the nuancing in a process to begin to determine that.
Q14 Chair: I do not think the public expects judges to take any other view than that hard drugs, in particular, are very harmful and what you are actually judging is the culpability of the person who is trading in them.
Roger Howard: But harm is one of those factors and, in a sense, runs as a rich seam throughout the whole of the guidelines. Proportionality is another factor and I would argue that, when we look at proportionality, there are three different dimensions: proportionality between the different drugs, as I am saying; proportionality between drug offences and other criminal offences; and then proportionality between what we do in the UK and what is happening in other countries. My understanding is that, for certain offences-supply offences and things like that-we, in the UK, are in the upper levels of the average sentence length, much more so than other countries. There are a lot of different factors, I am sure, that play into that.
Chair: I am anxious that we get on to the subject of drug mules and a couple of other issues.
Mr Buckland: Can I very briefly ask about one aspect of this?
Chair: As long as you give yourself time for the others.
Q15 Mr Buckland: Street value is highly relevant. There does not seem to be any reference to street value of drugs in the guidelines. From all our experience, we know that purity and quantity would be the elements used by police officers to estimate street value of drugs. Street value of drugs is a very important determinant for sentences in, first of all, deciding length of sentence and also for confiscation proceedings following any conviction. Do you have any issues about the efficacy of those calculations? Do you think they are relevant? Do you think that these guidelines are in danger of downplaying or restricting the ability of police officers and experts to come to a view about street value of drugs?
Mike Trace: I would take the same approach on street value as Roger has just elucidated on the general purity issue. If these calculations are going to make a very important impact on a very large number of sentences, then the process-the science we have-for making sure those base figures are correct, those denominators, needs to be very structured. I commend the Sentencing Council for trying, in this guideline, to get that very structured approach. If you look at each of the determinants of that final calculation-purity, amount, street value, which class of drug it is and, therefore, how much harm it is likely to cause-all of those do not have a clear scientific basis. Roger is right that we should not obsess about finding a mechanistic, clear scientific basis, but we should take very seriously the calculation of those determinants.
What, maybe, we are alluding to is, first of all, in terms of the classification system-whatever you may think of the ABC classification system-the science about the harm of the various drugs in those classes is moving faster than the classification of them. That is the first area of potential dislocation. The second area of potential dislocation we have just talked about in terms of purity and amount. The third area is allocating street value. There is a process through the police service, the forensic service, that allocates average street values to drugs, but we should make sure that that is a very robust and transparent process. I remember, Roger, when you were in charge of DrugScope that there was a very good process where the people who work on the streets with drug users fed in realtime information into that forensic process to say, "You say that cocaine sells on the streets of Newcastle for X pounds, but we can tell you that last week it was selling for Y pounds."
There is no other way to deal with it in terms of the guideline than the Sentencing Council is trying to do, but we need to take the processes that lead to the calculations very seriously because they make the difference between a short sentence, a long sentence, "Are we dealing with possession?" or "Are we dealing with supply?" They are very important calculations.
Q16 Chair: There isn’t a tendency of lawenforcement agencies to inflate the values, is there, because it looks-
Mike Trace: They absolutely do in their public statements-there is no doubt about that-but when they are doing the prosecuting work and laying a file, there is a better process for making sure the figures are nearer to reality. This is the reason why I think that process should be taken very seriously because you have to guard against the uptariffing, if you like, on the basis of, "This is a major offender and, therefore, we are inflating the prices." That may be absolutely valid but there needs to be a very good framework within which those figures are calculated.
Roger Howard: I have one additional comment. In the consultation process for the Sentencing Advisory Panel consultation, which preceded this, there were a number of concerns expressed by the legal profession about the use of value. I don’t know the full basis of that, but there is a consensus, again, that it should not dominate and it should not be an undue factor in that. Again, it is that complicated mix of all these factors where you need that degree of judicial discretion, but where the guidance, for what goes in what box, could be a little more sophisticated and consensusbased process.
Mike Trace: Could I take a moment to expand on the point I have made about motivation? That is a key point which is not particularly picked up in the consultation that I would like the Committee to be aware of. It may take us into the issue around drug mules.
As to the idea of the level of harm to society being primarily calculated by the amount and the purity of the drugs, it is an element but, in the draft guideline, it is given too much prominence for all the reasons we have discussed. If we are trying to work out the culpability and the potential harm caused by a particular offender, just as important-if not more important-is their motivation in committing the offence. The draft guideline has gone some way to taking us a big step forward on that by allocating these leading role, significant role and subordinate role. That is a great distinction but it does not go far enough because it relegates motivation to a secondary element. Somebody importing cocaine to the UK who is in control of the operation-is motivated purely by financial gain, is totally impervious to the harm they are causing and is using violence and intimidation on other people to engage them in their operation-is in a very different situation to somebody who is the subject of that violence and intimidation, is under coercion, may not be aware of what they are doing and may be motivated by other reasons than financial profit.
To some extent, the Sentencing Council has got it right, distinguishing between the leading and subordinate actors, but it is judging leading, significant and subordinate on the basis of amount and purity and on the basis of a limited criteria about what puts one person in one category or the other. It could very much strengthen the consideration of motivation, and that is a general point about which I am very happy to go into more detail. We have a draft paper in response to the consultation, which I will submit to the Committee, but that is a crucial issue.
Q17 Mr Buckland: You have brought us on to drug mules, which I am happy to develop. I am grateful you have raised that. Let us challenge it for a moment. For people who are coerced into it, there is a defence called duress. They have to raise it and show, on balance, that there is evidence to put before a jury about duress. That is a defence to an offence of possession or possession with intent to supply. Let us say that the evidence does not amount to duress and they are, therefore, guilty of supply. Putting aside coercion for a moment, in a large number of cases there are two factors, are there not, about mules? One, without them the operation would not work because they are, in effect, the cogs that operate the machine. Two, the fact that they do not know about the purity, weight or the quantity of the drugs they carry is, frankly, part of the risk that they take, isn’t it? Right thinking members of the public would say, "They take their chances when they get involved in enterprises like this." Should we really put all those personal factors of mitigation at the top of the list as opposed to the fact that they have involved themselves in an enterprise involving the supply of illegal drugs?
Tamar Good: Ultimately, you are punishing the wrong people. A lot more attention needs to be given to this, and I am quite glad that the sentencing guidelines have brought this attention. If you look at some of the women that we represent in our organisation, you cannot separate the coercion. What typically may happen is that they are in a very desperate situation, may have dependants and have an extreme lack of knowledge about anything regarding, possibly, what they are about to do, and certainly, the consequences. You are probably aware that their organisers are usually people they know-possibly family members-and it may happen over quite a subtle and slow period of time. They may do them a favour, such as paying for someone’s education or for an operation, and gradually that favour is demanded to be returned. The women are in a position of feeling obliged to repay a debt, as it were. That is a really difficult issue when it comes to raising the defence of duress because they do not have the intent.
Q18 Mr Buckland: I accept that. Duress would be there if you are under threat of serious injury or death. I accept it is not an easy defence to mount, but the point I am making is that all these valid points you make are mitigation. They are not a defence to the charge.
Tamar Good: Yes.
Q19 Mr Buckland: The fundamental point, from members of the public’s point of view, is that those factors are relevant but do they take precedence over everything else?
Tamar Good: No, but think about the cost of keeping some of these people in prison. Compared to other sentences and other crimes, this is still quite a long period of time. To put a woman in prison for that long for something-and, okay, we are not talking about duress or mitigating circumstances-is a huge cost to the taxpayer.
Q20 Mr Buckland: But isn’t there a danger that, if we draw this line between custodial and noncustodial on mules, we will have a rush among defendants to start putting bases of plea in that they are only mules, and we will end up with far more litigation on an issue like this? Isn’t it better not to have that artificial distinction: to have more of a sliding scale to allow a court discretion to impose a noncustodial sentence where you have the sorts of circumstances you mention, but not to simply put mules in a wholly different category?
Tamar Good: We do see the difficulty there, and a different approach is needed; for example, much more extensive educational campaigns in the countries of origins of the majority of these mules. That is something our organisation has already undertaken with, arguably, great success in Jamaica, Ghana and Nigeria. The uptake has been fantastic too. We have seen a drop, temporarily or otherwise, in the number of drug mules from those regions as a result.
Q21 Mr Buckland: Are you getting any DFID funding for that?
Tamar Good: For the educational campaigns, no.
Q22 Mr Buckland: Have you asked?
Tamar Good: Have I asked?
Mr Buckland: Yes. I think you should, because that is the sort of thing we should be spending our money on, frankly.
Roger Howard: Could I make the point about mules and go back to the point about motivation? It is quite important because, again, it is very easy to talk about mules and couriers as a homogenised group, and they are not. There are those that clearly know the full risk and know exactly what they are doing; there are those who are coerced, for whatever reason; and there are those that are hapless and that are duped. If one begins to understand and allow that discretion within the court and to factor in motivation more, you are more likely not to get an abuse of the system and you will allow that nuancing, rather than a blanket sentence. In fact, understanding that motivation and making that much clearer would be quite important and go a long way to finessing some of the approach. That is what everyone would probably accept.
Q23 Mrs Grant: On the issue of duress and Robert’s point that he picked up with you, could I ask what proportion of drug mules are women and children? Do you know? When you were talking about it, each time you referred to the woman.
Tamar Good: I did, yes, because we are a women’s organisation. Out of all the foreign national women in prison, it is almost half.
Q24 Mrs Grant: Half are women. What about children?
Tamar Good: Children as drug mules, do you mean? We focus on the women as the drug mules and their children as part of the way that we support them. If their children are still in their home country, that is something that we would try and encourage and keep together the family ties. As to children as drug mules, obviously, we deal with women who are in prison so we do not come across children, per se, who have been couriers.
Q25 Mrs Grant: But children can be drug mules as well, of course.
Roger Howard: They can be involved, obviously, in production offences, in cannabis growing.
Q26 Mrs Grant: It is a very high proportion of maybe vulnerable women and children.
Roger Howard: As Tamar has said-and I did some work when it was DrugScope a few years ago around some of this-clearly a significant number in the prison system are there for that. I do not know what research there has been. I am not aware of any that has tried to unpick and look in more detail at who is involved at what chain. It would only be speculation.
Q27 Elizabeth Truss: You talked about the international approach to drug crime. Can you tell me about the cost of drugrelated crime in Britain compared to other countries?
Roger Howard: The most "accurate"-if I could put it in inverted commas-estimate was undertaken by the Home Office a few years ago. They estimated the cost of class A drugs and the associated crime with that to be in the order of £15 billion. That has been contested methodologically. Some people disagree with that and think it is overinflated, but these are estimates and that is the full economic cost-cost to victims, to insurance companies and things like that. I am not aware-I am sure we could find out and provide you with evidence-about the cost in other countries. It is generally seen that Britain has a more significant drug problem than many other countries, other than places like the US. I don’t know whether Mike knows.
Mike Trace: Yes. If the question is related to the general cost to society of "the drug problem" then Roger’s figures are correct. There is an international debate on the right methodology to use and which figures to include and what not to include. The UK does figure towards the top of the league table on the impact of drugs on society, partly because of high prevalence and partly because of high public expenditures on the key issues. The impact of drugs on a society tends to be in terms of impact on economic productivity, on health problems and on the level of crime in society. On all of those three fronts, the UK spends a lot of taxpayers’ money, first of all, on trying to solve those problems and, secondly, in responding to the problems as they occur. We are definitely talking £15 billion specifically on the crime cost which-as I say, subject to methodological debate-is one of the tighter figures around the world.
Q28 Elizabeth Truss: Can I ask about the trend in different countries, how it has changed over time and whether or not there is an example of a country whose publicpolicy approach has reduced, or at least ameliorated, the level of the problem? How has Britain been trending compared to, for example, other European countries, southeast Asian countries and the US?
Mike Trace: I will caveat this by saying that these are very broad statements about very complex global issues. Generally, the UK’s level of problem has been stable and the level of estimates of our cost of responding to that problem has stayed pretty stable in the last 10 years. I think that is fair to say. The general trend within Europe is that the western European countries have experienced that same process over the last 10 years. New Member States of the European Union, eastern European countries, are on an upward curve of the level of their problem and the level of cost of their problem. The other regions of the world where the impact on society of drug problems are particularly worrying are Africa, Asia and the former Soviet Union. Those are the countries where the trends are very worrying.
Q29 Elizabeth Truss: Is it a bit of a market saturation situation really, similar to tobacco and legal drugs?
Mike Trace: Yes. None of these have single determinants. This is complex social policy, but, yes, market saturation is a large factor in what is going on.
Roger Howard: When we started, about four years ago, we commissioned leading drug policy academics to look at some of the factors that underpin your question. The broad conclusion was, if I could read into your question a different interpretation, that the law, acting as a deterrent, had very little impact on people’s decision to use drugs and the level of prevalence in society. What seem to be much more important are the cultural, social and economic factors. If you are looking at other countries-we hear about the Netherlands, about Portugal and some of these things-it is very difficult to disentangle one thread. Where other countries have had a more-I was going to say "relaxed" but I do not think that is the right word-pragmatic response and have looked to deal with a lot more low leveltype possession offences and keep those out of the criminal justice system, probably all you can say reliably is that the roof has not caved in on those countries.
Q30 Chair: When you say outside the criminal justice system, they are often dealt with by out-ofcourt disposals.
Roger Howard: Indeed, they are.
Q31 Chair: They are part of the criminal justice system.
Roger Howard: Indeed. In all countries-and I look at Mike here-under the UN conventions they are still "illegal". But there are levels of discretion, expediency and outofcourt disposals. We know the Netherlands-obviously, the expediency-and other countries have set these thresholds where no action is taken. If I was standing back and I was a Martian landing here, I would say those countries have not imploded. They have not seen a huge escalation in their drugs problem.
Q32 Elizabeth Truss: One of the factors you mentioned was an economic factor. Presumably, going into the criminal justice system imposes quite a large economic cost-in terms of loss of liberty, etcetera, and inability to deal drugs-on the perpetrators. In fact, there is an argument for greater financial penalties to deal with those economic issues. Essentially, we are talking about a market. We can try and restrict it as much as possible, but it still exists. What about the experience of some of the more punitive regimes like the southeast Asian regimes? How has that impacted on policy?
Mike Trace: The overriding factor, which I think will bring us back to the issue with the Sentencing Council guideline, is Roger’s first point about the pretty clear evidence now- accepted technically, if not politically, around the world-that if you spend a lot of money on harsh punishments, particularly imprisonment, that fact alone is not enough to effectively reduce the scale of the market. It is much more the social, cultural and economic factors. It is a commodity market. How can we create the conditions where people do not want to be involved in that commodity market?
You are probably right that, when we are talking about dealing, that is much more a financial and economic decision made by potential offenders than it is about, "Am I going to be caught?" "Am I going to be processed through court?" "Am I going to be in a prison for a long time?" It is a very remote part of the decision making. Money is what motivates the people who control the drug market, so money is probably the factor that is most likely to achieve deterrence. Quite rightly, the UK Government and many other governments, therefore, are focusing on asset seizure and moneylaundering aspects. In the UK-I do not know if Roger’s organisation would agree with this-we are not bad at recognising that on possession offences. We arrest a lot of people for possession but tend not to spend a lot of money on punishing them. On supply offences-and this brings us back again to drug mules-the objective of what we are trying do is to create deterrence and effectiveness through the end position of harsh sentences. It has to be said that we are not achieving effectiveness in that harsh sentencing. Harsh sentencing-I think you are absolutely right-may be absolutely appropriate on public disapproval grounds or ethical grounds, but it is not working on a deterrence basis to change the commodity market.
My organisation would be very comfortable with that if those harsh penalties were being applied to people who are-I do not want to use tabloid language-consciously dealing in the harm of others, know they are doing it, consciously plan do it and take a big profit out of it. Unfortunately, most of the people who get drawn up in those harsh sentences do not fit that stereotype, and drug mules is one type. We have to be much smarter at targeting our harsh sentences where they may have a businesslevel impact. The vast majority of people we apply those harsh sentences to are not the people who make business decisions about their role in the dealing network. You mentioned southeast Asia. America is the country that has pursued this to the greatest degree, but the problem with constantly ramping-up sentences-and there are still 30 countries in the world that apply the death penalty for drugtrafficking offences-is that the sentence is not the deterrent. It is the likeliness of being caught.
The fact of matter is that, if you are in Africa or southeast Asia, you are very unlikely to be caught. If you are well connected and well heeled, you will be able to buy yourself out of the problem, which is another reason why the people who tend to get the harsh punishments are the poor and subordinate people in the mechanism. The ethical and public disapproval thing is absolutely right, but there is a fundamental mismatch between that and effectiveness of deterrence. That is a real problem for the Sentencing Council draft as it stands at the moment.
Q33 Elizabeth Truss: I am interested in the comparative sentences between drugs offences and other serious crime, and also the links. Generally gangs who operate in drugs are also operating in sometimes human trafficking, sometimes guns. It is part of a criminal industry, isn’t it?
Mike Trace: Absolutely.
Q34 Elizabeth Truss: Do you think the sentencing approach is cohesive enough to address what these gangs are actually doing, which is operating in any illegal substance or activity that they can find?
Roger Howard: If I could answer that, the EU, through its European Monitoring Centre for Drugs and Drug Addiction, did an analysis of the sentencing outcomes a couple of years ago. If you look at supply offences, the UK is at the upper end in the UK with, as it was then, about 30, 32 or 33 months, whereas if you look at places like France and Denmark, it was down at around 12 months for the average custodial sentencing for a supply offence. There will be all sorts of factors that go into that. If you look at personal use-personal possession offences-as Mike suggests, we are probably around the average in terms of sentence length. It goes back to the whole thing about, in a sense, again underpinning what has been tradition here, that long sentences act as a deterrent.
My understanding, from the Campbell systematic evidence review on cost benefit of sentencing, is that sentence length does not deter. It is the risk of being detected and prosecuted and having action taken against you. There was some research undertaken by the Home Office a few years ago-qualitative research with drug dealers who were in prison. There were two things which were really going to affect them and deter them: were their assets going to be confiscated?
Elizabeth Truss: Yes, confiscation.
Roger Howard: But the other thing-which I think was quite interesting-was the risk of informers. Having informers in your gang or your group increases the risk that you are going to be detected and have action taken against you. The sentence length, at one level, is fairly irrelevant, in broad terms. It raises questions whether we have got it right and proportionate.
Q35 Elizabeth Truss: Are you saying not enough is being done on confiscation then?
Roger Howard: We have had discussions with people around the Proceeds of Crime Act and I think there is a concern about the length of time between your arrest, the prosecution and sentence, and any confiscation order. Also, technically and legally, it is sometimes quite difficult.
Elizabeth Truss: I completely agree.
Roger Howard: Various Governments of all persuasions over the years have said they are going to ramp up. That is quite right and we would support that strongly, but, in practice, my suspicion is that it is a lot easier to say that and ask for it than it is to actually execute.
Q36 Elizabeth Truss: I hope the National Crime Agency will be involved. I think what Britain has lacked is a proper information system between police forces to deal with those serious organised criminals. Hopefully, that will-
Roger Howard: I would not want to make a political thing. We have had the Serious Organised Crime Agency and we have had its predecessors. Everyone has tried to focus on that.
Tamar Good: Can I make one extra point about the length of sentence? We need to remember that, from our point of view, a lot of the drug couriers are seen as dispensable and so the length of sentence is not a concern to the organisers.
Chair: We have run out of time. Thank you very much for the help you have given us this morning. It has been very valuable indeed for our consideration of this. We have some witnesses to listen to and question on the subject of burglary next.
Mike Trace: On a procedural point, Chairman, we have an IDPC draft response to this point. Can I submit it to the Committee?
Chair: We would be very glad to have that, yes. It would be very helpful. Thank you very much.
Examination of Witnesses
Witnesses: Dr James Treadwell, Lecturer in Criminology, University of Leicester, Javed Khan, Victim Support, and Professor Mike Hough, Institute for Criminal Policy Research, gave evidence.
Chair: Professor Hough, I don’t know whether there are severe transport problems in London, but you look like singing a solo for us for at least the beginning of our session, which is about the sentencing guidelines on burglary. If the others are able to join us in the course of proceedings, we will take them into the questioning process. It has been suggested to me that the question we would be best to start with you on, and rely on your expertise, is the one Mr Llwyd was going to deal with.
Q37 Mr Llwyd: Time was, of course, when domestic burglary was treated far more seriously than nondomestic burglary, and particularly if an individual was in the premises when it happened. That, very often, would attract a very heavy sentence, for understandable reasons. I wonder if you can assist us. Do you think that the starting point and categories in the guideline reflect the proportionate harm within burglaries in the overall sentencing scheme?
Professor Hough: Let me answer that in a second. Can I first say that I am not specifically a sentencing expert? I do a lot of research on public attitudes to sentencing. If I have a competence, that is where it is strongest, but I have done work with the Sentencing Guidelines Council and am fairly familiar with the system.
Looking at the draft guidance, it did not strike me that there were gross outliers and that there was a proportionality problem in the way that the three tiers are structured. Does that answer your question?
Q38 Mr Llwyd: Yes, I think it does. Therefore, you might be even more comfortable with the next question. What are the victims’ expectations of the sentencing of burglars? Are these being met? Are victims more punitive than those who have not been burgled?
Professor Hough: The research evidence is fairly clear that victims, perhaps surprisingly, are not especially punitive and do not seem to be more punitive than nonvictims. The way to understand that is probably that, in the course of a lifetime, most people have some experience, direct or indirect, of crime and shape their attitudes in the light of that experience. If you then ask what the general public expect of the sentencing of burglary, again there is fairly clear evidence that, at a general level, people are extremely cynical about the courts-or certainly cynical. I do not know if they are extremely cynical. They think the courts are too soft and, at the same time, they are misinformed about what the courts actually do.
This is demonstrably true in the case of burglary because the British Crime Survey has carried several questions about the punishment of a burglar for the last 15 years, and it was striking, incidentally, that neither the Sentencing Advisory Panel paper nor the draft guidance made any reference to that. For a level 2 burglary-I think it would be a level 2 burglary-a vignette, only twothirds of the public would like to see a prison sentence passed. People think the courts are too soft, but when they sentence a particular case, a middlerange burglary, they seem to be certainly in line with the proposed guidance.
Q39 Mr Llwyd: You will be aware of the British Crime Survey report in 2010 that only 2% of households were likely to be victims of burglary.
Professor Hough: Yes.
Q40 Mr Llwyd: In terms of that, the public perception is still a bit higher, isn’t it?
Professor Hough: They compare the percentage victimised to the proportion saying that they are likely to be the victim of burglary at some time. I think 15% of people said they might be victimised over the next year.
Q41 Mr Llwyd: That is correct. It is the same report.
Professor Hough: It is quite difficult to stack up the actual demonstrable risk of being burgled against perceptions. Whatever the case, people are less worried about burglary now and see the risks as lower than they did 15 years ago. There have been big shifts in perception.
Q42 Mr Llwyd: In your opinion, how can the public be better informed about the complex nature of offences and, therefore, the fact that sentencing needs to have some flexibility?
Professor Hough: When you conduct focus groups with the public, they are quite sensitive to the complexities and understand that there are a range of different factors that have to be taken into account. They say things like, "Thank goodness I’m not a judge myself." That considered view is very different from the topofthe head view that people express in a poll.
Q43 Mr Llwyd: In other words, we are still in the tabloid mentality here, aren’t we?
Professor Hough: There are two levels of public opinion, what you might call the tabloid level and the considered level. It is probably a mistake to listen only to the tabloid level, in my view.
Q44 Mr Llwyd: I am sure you are right. Looking at the focus groups you referred to and bearing in mind what you have just said, do you think there is a role for sentencing being made more explicit at the time of sentence-the reasons for a sentence being made more explicit-so that even the tabloids might understand?
Professor Hough: The more that can be done to make sentencing clear and transparent, the better, because people in court, I suspect, are quite muddled and confused by the process. Whether that is best done in court, which has very limited reach, or whether there are other ways of getting the realities of sentencing across to the public, is something worth asking. I would have thought, with things like the internet, that, in time, the Sentencing Council could make it clear what the going rate is for different sorts of offences, effectively.
Q45 Chair: We have been joined by Mr Khan, who is Chief Executive of Victim Support. The Sentencing Council intends to refocus sentencing on the victim to acknowledge that burglary is an offence against the person as well as a theft. What do you think about the aggravating factors set out in the guideline? Would you add any or remove any?
Javed Khan: Thank you, Chairman. First, on behalf of Victim Support we would like to welcome the approach taken by the Sentencing Council. It is absolutely right that burglary is recognised as a serious crime. You will be well versed, I am sure, in the research that supports the view that victims regard burglary as an extremely serious crime, and all of the various impacts that it has upon them.
In terms of the detail that is included around aggravating factors and the harm factors, we support the fact that the sentencing guidelines, for the first time, openly recognise the need to understand the level of harm inflicted on victims, but we would want it to go a little further. We think the best way for that harm to be understood is through victim personal statements and the broad use of victim personal statements as a guaranteed offer to all victims who choose to express their concern in that way. At the moment, the research we have available tells us that, at best, around the country, only 46% of victims of crime remember being offered the chance to complete a victim personal statement. Within that, only 16% of them recall the impact they expressed through that statement being considered by the court. It is a fundamental point that we would like to be expressed specifically and in much greater detail in the guidelines which we do not think is quite there yet.
In terms of previous convictions, which is one of the aggravating factors mentioned in the guidelines, we know from our work with victims and published research that victims and the public consider previous convictions indicating a pattern of offending should be a considerable aggravating factor. Given the significance which the public attaches to previous convictions, we believe the sentencing guidelines should consider adopting a more prescriptive approach, setting out the degree to which previous convictions should influence the sentence.
We think that sentencers need to do more to find out about the impact-again through victim personal statements-and recognise that impact alongside previous convictions in order to make an intelligent decision when it comes to sentencing.
Q46 Chair: Are the items taken in the burglary significant here? There is a suggestion that items that are very personal to the individual may have a more harmful impact on the victim than others. Is that a factor which is really measurable and could be considered?
Javed Khan: Most certainly. We especially consider that the victim being present, the property being ransacked and the theft of items of sentimental value indicate greater harm, and that needs to be considered. There are some things we do not agree with in the guidelines, in terms of not just aggravating factors but mitigating factors as well. For example, as to the issue of injuries caused recklessly, we do not think that this should count as a mitigating factor. When a victim is injured as a result of a burglary, what matters to them is the harm caused, not whether the offender intended it or not. We also do not agree that lapse of time since the offence should be a mitigating factor. We do not think this should be a factor because a crime is no less serious simply because it happened some time ago. I mentioned the issue of previous convictions. The guidelines say that previous convictions, as one of a number of aggravating factors, should be considered. In our view, previous convictions are so significant that they should not be lumped together with other aggravating factors and should be considered independently.
Q47 Chair: Can I take you to another issue on which I think you have a particular viewpoint that could be helpful to us? What do you think the role of restorative justice in relation to burglary might be and how far can it be developed in sentencing?
Javed Khan: There is a lot of evidence to suggest restorative justice works, but there are some conditions that we would suggest need to be in place. First, for good restorative justice you need trained practitioners implementing it. There also need to be national standards set in place, which do not exist at the moment. The Ministry of Justice has carried out research and we have supported that. The Restorative Justice Council has conducted considerable research and the evidence is fairly clear that good restorative justice, with those caveats that I mentioned in place, improves the victim’s confidence in the criminal justice system and helps the offender understand the impact of their crime. Therefore, it reduces reoffending as a result of that.
Chair: I was going to turn to Mr Buckland to ask some questions about the pattern of a burglar’s behaviour, but unless Dr Treadwell arrives-he has arrived exactly on cue.
Q48 Mr Llwyd: Can I put another question? On the issue of restorative justice, I think you are absolutely right. There is certainly a great place for it within the whole system. As a matter of information, a few years ago I sat in on a session where a career burglar and his victim were sitting next to each other. This was within the confines of this place. The career burglar had been in and out of jail for roughly 18 years. He burgled this man’s house, the man was in at the time and the man was actually injured, albeit recklessly, in the whole process. The person has not reoffended seven years down the line and they are quite good friends. I do not know whether it is an extreme example, but it certainly does work, given the caveats that you put forward.
Javed Khan: Chairman, if I may, that is a really good example of where it has worked well. We have seen lots of examples where it has worked in exactly that way. There are also lots of examples where it has not worked. One of the key principles is that no victim should be forced to enter into restorative justice against their will. It should not be a compulsory position that should be taken. It has to be with the agreement of the victim and the offender.
One key principle within that is that the offender needs to recognise their guilt in the offence they have committed. There must be no confusion about whether there was a crime committed or not. Our experience would support that strongly. Also, to support the general principle of restorative justice, I would add that, from the research I mentioned earlier, our calculations suggest there would be significant cost savings to the criminal system if restorative justice were to be put in place in the way that we and the Restorative Justice Council suggest. Over a twoyear period the research showed that there would be potentially a saving of £185 million to the criminal justice system, the knockon effect of good restorative justice to all of the various agencies that would need to be involved otherwise. That equates to a £9 saving for every £1 potentially spent on implementing restorative justice.
Chair: That is the kind of figure we find very attractive.
Q49 Mr Buckland: We know that the statistics demonstrate that the incidence of burglary has declined in the last 15 years. My first question is: why? My second question is: what impact, if any, has sentencing had in that decline, would you say?
Dr Treadwell: There certainly has been a decline, and I think it is a real decline. There are numerous factors that underscore that. One of those, clearly, is improved household security, as more and more people have double glazing. Burglary tends to be an opportunistic crime and people find less easy opportunity to profit from burglary quickly when they have to go through, for example, double glazed secured patio doors.
That said, you can look, on a much higher level, at crime trends generally. The decline of burglary is somewhat borne out by the fact that it is quite a costly crime for the offender if they are convicted. In contrast, there are new opportunities that the young men that previously would have committed burglaries can take to make a profit. Often, what I have found when talking to offenders is that they have moved from burglary. They have made an active decision to move from burglary into other crimes. One of the factors they describe being behind it is the decline in value in what they can get out of households, what they can steal and resell. For example, the very inexpensive DVD player that you can now buy for £20 in a high street supermarket chain no longer has a resale value. Quite simply, if you are looking to make money quickly, in contrast, shoplifting might well provide a better avenue. That said, burglary still remains a fairly significant crime and a volume crime.
If we look at the regular and routine perpetrators of that, what we see is that it is a crime perpetrated because of a perceived need. Largely, it is committed because the offender needs to fund a substantial drug addiction. Not often do you find that it is less than several hundred pounds a week, and sometimes into the thousands of pounds a week. With an addiction of £2,500, in terms of monetary value, they need to raise £2,500, and there is still the possibility, through burglary, by targeting some specific items, to make that sort of money-laptop computers and, particularly at the moment, things like jewellery, with the high price of gold, for example, might be one factor that might explain a slight increase in burglary in the coming months. Largely, you have to remember that, in terms of young people who are likely to be looking to commit offences, there are better opportunities out there for them.
Professor Hough: Could I add to that? If one is thinking about the impact of the system on burglary levels, I suspect that policing probably exerts a larger effect than the sentence of those who do get caught. The focus on persistent offenders could be a significant factor in explaining the decline over the last 15 years.
Javed Khan: Chairman, if I might add on some of the statistics around this, of the 1,500 or so aggravated burglaries in dwellings in 200910, in only a third of cases was an offender caught. Although burglary has been falling over recent years, the latest figures from 2010 found that levels of domestic burglary were up by 14%, so it is not a fall across all types of burglary. At Victim Support, we receive over 200,000 referrals from the police for domestic burglaries alone. In terms of the total volume that we deal with, the demand for our services around burglary comes fourth after threats, assault and vandalism.
Q50 Mr Buckland: That is an important point, isn’t it, Mr Khan? We should distinguish between different types of burglary.
Javed Khan: Yes.
Q51 Mr Buckland: There is no doubt that dwellinghouse burglary, we agree, which is a crime against the person as much as against property, is a matter of real and continuing public concern. There is a continuing fear, is there not, of the invasion of one’s private life and home that a dwellinghouse burglary obviously means?
Javed Khan: Yes, without doubt. I totally agree.
Q52 Chair: Perhaps I can ask Dr Treadwell about deterrence. There was an indication in something you said that the likelihood of a prison sentence did have some deterrent effect for the calculating person who decides that there are other crimes in which he is less likely to get caught and sentenced. Presumably, they are also crimes which would attract a prison sentence, but when we are advising the Sentencing Council, ought we to encourage them to be more sceptical about deterrence than me, you and the public seem to be?
Dr Treadwell: Yes. For some offenders-and it is with that caveat-the deterrent effect of sentencing is there. For example, I remember particularly interviewing a chap who had been imprisoned for a substantial period for importation of class A drugs and I said to him, "How did you get involved in the importation of class A drugs?" He said, "When I appeared on my last commercial burglary charge, the judge said to me, ‘If you appear in front of me again for this sort of offence, I will have no hesitation in giving you a sentence of at least double figures,’ and I thought, quite simply, ‘If I am going to get that sort of sentence, I might as well move into the drug market’."
Q53 Chair: As a first offender?
Dr Treadwell: This was, to all intents and purposes, an established and professional criminal who had been offending from a very young age. The vast majority of those who would commit, for example, normal domestic dwellinghouse burglary-if there is such a thing-do not fit that bracket. They fit the bracket, very often, of drug addiction, very heavy drug dependency and crimes committed spontaneously, opportunistically and quite impulsively. They give little consideration to the deterrent effect of sentencing before embarking on the offence.
That said, I would similarly agree with Professor Hough that, in actual fact, if you look at the targeting-particularly the policing of the most persistent of offenders-through schemes targeting persistent offenders, that category of offender has felt an intense light shone on them in some areas in recent months. It leads people to consider, "Can I get away with something?" "Is there something that attracts less of a sentence?" "Might it be better to steal two bottles of whisky from a shop that I can quickly sell off in the local pub because that will generate enough money for me to get my next fix?" Very often, the focus is on scoring the next lot of drugs. It is that simple.
Q54 Chair: On the policing point, were we talking there about bobbies on the beat or intelligenceled operations?
Dr Treadwell: It is very much intelligence led, but I do not think we should overstate the policing part of it as well. Very often this is multiagency work. It involves agencies coming together to highlight the most persistent of their offenders-very often offenders that have been known to them from very young ages-with continuous involvement in the criminal justice system, lots of short prison sentences, lots of offences and even more when you consider those taken into consideration that form the backdrop of their criminal career. These offenders have been very effectively targeted by multiagency strategies and persistentoffender projects and very carefully managed. They are the subject of very intense community supervision, the sort of community supervision that others, quite frankly, are less likely to get. They are heavily monitored on a daytoday basis. That certainly limits their opportunity or means that, if they do reoffend, they are detected very quickly.
Chair: That brings me to Mr Evans’ point.
Q55 Chris Evans: I am very interested in what you said about dependency. We had the Minister in front of us yesterday and it seemed to be the same thing as well. How effective are community sentences in tackling addiction?
Dr Treadwell: The community sentence, it would seem to me, is not necessarily the effective part of it. The effective part of multiagency working is where we get a group together to tackle all the underlying factors that lead to an individual’s offending. The addiction is but a part. These individuals are often the most socially excluded. They are on the bottom rung of the ladder. They do not only have problems with addiction. They have problems with low educational attainment; very often they have never worked and never experienced work; and they live in transient accommodation, very often going from hostel to shortterm accommodation to prison. Of course, they lose accommodation when they are in custody. The addiction is part of that whole package.
Some measures that can be incorporated into community sentences can be very effective. The first step is to ensure that someone is adequately detoxed and that they are no longer dependent on the substance. Through things like multiagency working, that can be done, although there is still not enough provision of those sorts of addon components, the community detox. People still find it difficult to access somewhere they can be carefully managed in their withdrawal from drugs. Very often it is polydrug use. It is not just heroin but heroin and crack cocaine. There are also, when you take those away, often alcohol problems as well. That can be managed far better, in many ways, than it can in a prison environment.
Many offenders who go into prisons can easily get access to drugs and continue their addiction, but what they tend to do is use prison as a period of relative stability. They get to a point where they are hectic, where their life is rapidly spiralling out of all control, and prison acts to stabilise them. They do not withdraw from drugs, but they use less. They come out of prison with a small amount of money. They are channelled back into some form of accommodation and then the spiral goes downward once again. Community sentences can work to tackle addictions, but targeting addictions is only one part. It needs to come with a raft of measures.
Q56 Chris Evans: What I am very interested in, and I am probably getting boring about it now, having talked about it so much, is this. I talked to someone in my constituency who I know very well who works for a charity as a methadone dispenser. He said the major problem seems to be that they come into a detox and, part-way through, they completely disappear off the face of the earth. They live, as you say, a very hectic life, disorganised and everything, and he never sees them again until they have been arrested, picked up and put back in the programme. He has seen them six or seven times, and it might be six or seven burglaries, it might be six or seven assaults or, as you say, pinching from the supermarket. What can we specifically do to stop that cycle continuing over and over again? What I was quite shocked at-and it is anecdotal evidence-was that he said he had 50 clients and, of those 50 clients, every one of them, on average, has been through the system seven times. How can we stop that? Is there any research that you have done which backs up that anecdotal evidence? When he said that to me, it brought the whole drug sentencing home to me, in many respects.
Dr Treadwell: It is not my area of research so I have not done research on it. Mike might know some more. There is evidence of effective practice, but some of it is a world removed from what we do at the moment, for example. One of the things that has been suggested which can be effective, for example, is prescription of heroin. There is some evidence that, where heroin is given on prescription, people are stabilised and they stop the offending part. It does not deal with all the underlying factors. Until you get someone who has a very heavy drug dependency stabilised, to work on anything else is almost impossible.
Q57 Chris Evans: When I spoke to him, he said the underlying issue is not drug dependency, substance abuse or alcoholism. It is mental health. But when you talk about mental health, you are not talking about it in the respect of "This is the primary cause." Something has happened in somebody’s background that has made them become like this. You do not suddenly wake up one morning and decide, "I am going to be a drug addict." Something has happened somewhere along the line. What he is saying is that we are not treating the real cause of that. I was wondering how sentencing-because people who commit crime have to be punished and that is the way of society-could address that issue and see the drug problem in prisons not as a drug problem but as a mental health symptom. I could not get it out of the Minister yesterday, but I was wondering if you could see some way around what my mind was thinking there.
Dr Treadwell: Yes, I think it is very often about dealing with those background factors. When you talk to guys that have long been involved in the criminal justice system-and the drug of choice is very often heroin-and you ask them, "Why, in particular, heroin?", the effect of heroin, as it is often to described to me, is that it makes the individual a zombie. It takes away all bad and good emotions. Underscoring that is very often a reluctance or an inability to deal with background factors: abusive relationships, bullying and difficulty in forming attachments. Lots of those factors appear. Again, you treat the addiction-and you can treat the addiction-and those factors do not disappear. The way to deal with those factors is much more focus on the good oldfashioned counselling, allowing people to get to grips with what has happened, empower them and move them forward.
The answer to those sorts of problems is very rarely found in the sentence aspect-the expression of public disdain, as it were, the sending of the individual to prison: it is to recognise that these individuals have complex problems and problems that are not solved by treating only the symptoms.
Q58 Chris Evans: The other tension-and this is my final question-I see in it is that if we went down the route, as you say, of a lot more counselling and of, dare I say it, giving them a hug, what do you think, one, the public’s perception, and two, the victim’s perception of that would be as well?
Dr Treadwell: I have to say that trying to convince the public is very, very difficult. It is not only the public that you need to convince, but also the media that would largely be fiercely opposed. That said, at the same time, the tradeoff for the public, if levels of burglary fall, is a good one. I do not think we should necessarily move ourselves away from having those difficult debates and trying to inform them a little bit more. When it comes to the reporting of crime, the public have very little insight into the everyday forms of volume crime because they tend not to hit the press. It is the rare and exceptional which do. The Tony Martin case would be an example. It is not your average domestic burglar that is featured in newspaper articles. The public, if given all the evidence, are much more willing to accept that some of these things can work. Again, this is Mike’s area much more than it is mine, and he may be able to say more.
Professor Hough: Shall I come in?
Chair: Yes, please do.
Professor Hough: I have two points. On public attitudes, people support the idea of treatment for people who are dependent on drugs and see it as a perfectly sensible and rational thing to do. On the question of treatment and how you improve outcomes, the key is retention. If you can retain people in treatment on programmes for three months or more, you are going to do much better than if you fail to. The important thing is that there are big variations between jurisdictions, so that the Scots, for example, retained drugdependent offenders on DTTOs much better than the English and there are big differences across areas within England. The thing to do is to find out who has the magic touch and who is very bad at retaining. Retention is the issue.
Q59 Chair: To develop Mr Evans’ line of questioning, the use of custody as a penalty and the length of custody is seen by the public and the media as a scale of values, as a way of asserting that a particular crime is much worse than another crime, or a particular level of persistence in crime is much worse than another crime. How far can the Sentencing Council and sentences assert a different purpose in sentencing, which is actually to cut reoffending and make it less likely that there will be more victims in future, when it is being expected by the public and the media to maintain a value scale which says, "If you do this more times, you will go to prison even if it will not do you any good and you will come out likely to do it again."?
Professor Hough: My take on that is that, in a system of sentencing, proportionality must be the overarching principle and within proportionate sentencing one should take a utilitarian view about trying to prevent reoffending. The public, like judges, would see fairness and proportionality as the anchoring principle and then you should try and do good within that structure. Does that make sense?
Q60 Chair: Yes, except that it may require you to use a custodial sentence when you know it is not going to work and that what the person really needs is the kind of very continuous monitoring and supervision which Dr Treadwell referred to. Therefore, you need people to understand-and the media to accept-that this may be more challenging and more uncomfortable for the person who has committed the offence than an easy time in prison for a few months while he takes a rest before going back to the same life.
Dr Treadwell: Yes. That is a very important point. A number of offenders who risk imprisonment regard prison as a relatively easy option. Once they have first been to prison, it has lost much of its deterrent effect. They know what it is like and that it is a place to meet their mates. I even know of individuals who have reunited with their fathers in custody. It holds little deterrent value while they are in there. They will sit in their pad, smoke some cigarettes, kill time and see it as dead time and then they will come out. Indeed, a number of drugdependent offenders will see prison as something they can use to stabilise themselves.
That said, some forms of imprisonment are much harder. For example, if we were to take a look at some of the therapeutic community systems which do indeed go about tackling these background factors-the things that have happened to an individual that have led them to have complex emotional problems-prisoners will often describe those as the hardest prison time they ever do. For example, if we were to look at Her Majesty’s Prison Grendon, you will find that prisoners sent to that establishment do not regard it as easier time, although the regime, when held up to the public and outside, would seem very relaxed in comparison.
Javed Khan: I have two points, if I may, Chairman. They are broader points on this issue of prisoners and the experience that they are going through and whether it contributes to their rehabilitation or not. A while ago, I spent a bit of time with some longterm prison inmates in Wandsworth. These were all between the age of 21 and 30-relatively young-and had another 15 or 20 years to look forward to in prison. We talked about their experience to the point where they got into this longterm prison sentence. Without exception, out of the 10 people I met, every one of them had a really complex childhood. Very early on in their life they faced major trauma and they were victims in many other ways themselves, whether it was domestic abuse with violence all around them, a drugs culture or the estate that they lived on. It was all the sorts of things that Dr Treadwell is talking about. They all talked about their experience of being in and out of prison of one sort or another as a young person. Each of them said that they learnt more about crime while in custody than when they were out. They were extremely critical about any attempt that had been made to rehabilitate them. Usually they talked about no attempt having been made at all because they were on shortterm prison sentences and therefore got very little direct attention. Then they were out and they were back in again until they committed a very serious crime. That is where they were. It left a really important thought in my mind about how the profile between victims and offenders, in many ways, is not that dissimilar and most serious offenders have been victims in their earlier life. As society in general, we need to think about that, about what we do upstream to try and stop them from ending up where they are.
My second point is about how we give the public more confidence in terms of sentencing being effective. The Sentencing Council, in terms of the guidelines we are talking about today, has probably made the best effort yet in explaining something that is quite complex in a way that the public can hopefully understand. It is not quite there. It is not quite lawyers still speaking to lawyers, but it is better and we need to recognise that. We certainly applaud them for that and we will work with them to help improve it. The Sentencing Council could be far more clear in terms of how sentencing is explained to the public, not only in the guidelines but in court too, in the way the final sentence is handed out to offenders, the point of conviction, how it is explained not only to the offender but also the victim and the witnesses that were involved as well. There is no current duty on the judiciary to explain that in any real way. We have many examples of victims walking away from very serious court cases having understood that the person got a 10 year prison sentence but not really understanding that that 10 years could mean five years in custody and five years on a community order. Therefore, five years down the line, when that person is released and walking the streets, shock horror. They do not understand what happened. They feel let down, they lose confidence in the criminal justice system, their plight begins all over again and the revictimisation continues for them. Their confidence in the system is lost.
Therefore, the suggestion we would make, very strongly, is that, at the point of sentencing, absolute and unequivocal explanation needs to be given on the sentencing and all of the nuances that are around it to the victim and the witnesses as much as it is to the offender.
Chair: Thank you very much.
Q61 Mr Buckland: I have one final point. You think, in essence, this is a very welcome move away from phrases-that awful phrase, do you remember, that was used a couple of years ago-"a standard dwellinghouse burglary"? That was used by the Court of Appeal in a previous guideline case. That is an awful phrase which does not seem to be repeated in these guidelines. I think that is welcome, isn’t it?
Javed Khan: I fully agree with you. There are lots of examples within this document where the Sentencing Council has tried its best to use language that most people could understand. It is not quite there, and it is a really difficult issue. I have had this conversation with the Sentencing Council representatives and we are working with them, as I say, to help improve that. Their issue, of course, is that they do not want to go down the line where it becomes ambiguous. We understand and appreciate that. But they could use softer, more gentle ways-more customerorientated ways, if you like-to explain the law to people who are not well versed in the terminology used in these matters.
Chair: Mr Khan, Dr Treadwell and Professor Hough, thank you very much indeed for your help this morning. It really is much appreciated. Thank you.