CHAPTER 13 Conclusions The purpose of this chapter is to draw together various themes emerging from the topics examined in the 12 substantive chapters, and to offer some concluding reflections. The chapter begins by returning to a fundamental issue, that of the role sentencing should be expected to fulfil in criminal justice. It then looks at the more positive aspects of the new sentencing framework introduced by the Criminal Justice Act 2003, and at their prospects in practice. This links to the third issue – the new sentencing guideline mechanism and its ability to ensure that the new sentencing framework is translated faithfully into practice. The fourth part of the chapter looks at less constructive aspects of the new sentencing framework, notably its reliance on the rhetoric of protection, its use of the concept of risk and the proliferation of preventive orders in sentencing. The fifth part reassesses the place of proportionality in the new system and the impact of the framework on issues of social justice. The chapter concludes with some reflections on political courage and the need for leadership on criminal justicepolicy in general and sentencing policy in particular. 13.1 The responsibility of sentencing There is no doubt that the task of sentencing imposes a great burden on magistrates and judges, and that many of them say that it is the hardest and most disturbing of judicial tasks. In view of the momentous consequences it may have for offenders, in termsofdeprivations or restrictions on liberty, that is as it should be. In the present context, however, a more significant question is what sentencers and sentencing should be held responsible for.Discussions of criminal justice sometimes appear to assume that sentencers are responsible for crime rates in society, or for the subsequent conductof offenders, and these are the issues that need to be confronted. As argued in Chapter 1.4 and in various other places, the very concept of ‘the crime rate’ is a difficult one. Recorded crime has been measured for years, but it is well known that it does not measure the total number of crimes committed. The British Crime Survey comes closer to this (although it leaves out crimes against and by companies, crimes without direct victims, and some other offences), and it is the most complete measurement available. It has shown a downward trend in overall 380 13.1 The responsibility of sentencing 381 crime rates in recent years, but there are few policy-makers, politicians or members of the public who appear to accept this, let alone to use it as a basis for policy. Adecline in the crime rate may be influenced by other factors, such as a decline in the number of young people in society (stemming from a decline in the birth rate at some time past) and that is true of the last few years. Other social factors, such as the ready availability of a new and stealable expensive consumer product (notably mobile phones in recent years) may have an influence on the crime rate, as may crime prevention measures that reduce the susceptibility to theft of major items (such as manufacturers’ improvements in the security systems of cars). The willingness of victims to report certain crimes (serious sexual offences, ‘domestic’ violence) may increase, as a result of initiatives within criminal justice. This list of possible influences on the crime rate could be expanded, but the fundamental point remains the same and was made in Chapter 1.4 above. Such alow proportion of crimes are reported to the police and recorded by the police, and such a low proportion of those are detected (fewer than a quarter), that the criminal justice system makes a formal response to only around 3 per cent of offences committed in any one year. Of those about a third (or 1 per cent) receive a caution, reprimand or warning. This means that the courts sentence only around 2 per cent of offenders. The idea that sentencing policy in respect of this 2 per cent – which is admittedly higher in some categories such as serious violence (10 per cent) but not so as to weaken the argument here – can have a significant effect on the overall crime rate is difficult to sustain. There is a whole range of broader social trends and changes that have an impact on offending rates: one of them, mentioned at various stages in this book and highlighted in the report Rethinking Crime and Punishment, 1 is the link between drug-taking and crime. Thus the simple notion that increasing sentences will have a kind of hydraulic effect in reducing criminality is unsustainable. As we saw in Chapter 3.3 above, the evidence on deterrence and incapacitation does not bear this out. 2 Some judges seem either to be unaware of this or to doubt it, since general deterrent rhetoric remains common when justifying sentences. 3 Some politicians, especially ministers, must be well aware of the evidence, since there is ample support for it in Home Office-conducted or -commissioned research. But by setting over-ambitious targets for sentencing and by subscribing to a notion of ‘public confidence’ that too readily dissolves into beliefs about sentence severity (and may be influenced by media representations anyway), the government goes against the evidence that it possesses. 4 On this first issue, then, the conclusion is that too much should not be expected of sentencing. It should aim to be fair and proportionate, and any exceptions to this aim call for strong and evidence-based justification. Sentencing is a form of 1Rethinking Crime and Punishment (2004), ch. 7. See also Coulsfield (2004), ch. 6. 2 See further the brief but penetrating analysis by Bottoms (2004), pp. 60–72. 3 See ch. 4.4 above; Tonry (2004), pp. 110–12; and Attuh-Benson [2005] Crim LR 243. 4For the fragile relationships between public opinion and public assessments of the sentencing system, see Hough and Roberts (1998) and Hough et al. (2003). 382 Conclusions public censure, and the sentences imposed should convey the relative degree of censure for the particular offence(s). Sentencing is but a small part of criminal justice policy, and it is wrong to treat it as a primary form of crime prevention: there are several other kinds of initiative that have a greater crime-preventive potential than modifications of sentencing levels, although it is of course necessary to have in existence a sentencing system that operates so as to exert an overall or underlying preventive effect. 13.2 The new penal ladder The concept of a penal ladder has two applications in sentencing. Its fundamental meaning is to describe the hierarchy of sentencing options, from the least restrictive (or that with the lowest punitive weight) to the most restrictive or onerous sanction. It is also used, however, to describe how some sentencers apply those options in the ‘typical’ case of an offender who commits a further offence following an earlier conviction and sentence, the tendency being to select a sentence on a higher ‘rung’ of the penal ladder on the premise that the previous sentence (on a lower rung) did not ‘work’. More will be said about the approach to sentencing persistent offenders in parts 13.4 and 13.5 below, and the primary concern here is with the hierarchy of sentences and how they are intended to operate in the new sentencing framework. In Chapters 9 and 10 above there was much discussion of the custody threshold, and how the various new forms of sentence might fit together. But possibly a more important starting point is the fine. In Chapter 7.5 and in Chapter 10.5 above we noted that the use of the fine has declined spectacularly in the last thirty years, and indeed that the changes in sentencing in the last decade have been affected by courts’ apparent lack of confidence in the use of the fine. The aim of increasing the use of community sentences has been achieved, but this has not been successful in the sense that it has not diminished the use of custody – it appears that the increase in community sentences has been at the expense of fines and discharges, with the result that there has been a general raising of the severity of penal interventions. If this movement is to be reversed – and the government accepts that it should be reversed – then the fine must be regenerated and revitalized as a penal measure. This book has argued strongly in favour of the day fine system in successive editions, and in the last few years there has been greater interest in revisiting a system of this kind. It has grave dangers, of course, because when a version of day fines was tried in the early 1990s some sections of the media misrepresented it. The result of the ensuing furore was its abolition, and the result of its abolition was that poorer people were again fined more. That leads to problems of collection and problems of default. Considerable effort has been put into improving the collection of fines in recent years, and there is acceptance that part of the problem is the imposition of unduly onerous fines in the first place. So, bearing in mind these pitfalls, it is now imperative that the government both introduces a form of day fine system without delay and ensures that it is properly explained to everyone – to the extent that when 13.2 The new penal ladder 383 certain sections of the press attack it for ‘inconsistency’ (i.e. for fining rich people more than poor people, which is the whole purpose of the system), ministers are prepared to defend it in public, to explain the principle of equal impact, and to weather any negative publicity. If the fine becomes accepted as a viable option in some cases of moderate serious- ness, this may begin the processof ‘unsilting’ the resources of the National Probation Service by relieving it of the need to provide community sentences for offenders who are not really serious enough to warrant them. The next step is to ensure that community sentences are given to offenders of moderate seriousness, and that the community sentence is not regarded as a single ‘rung’ on the penal ladder. The dan- ger, in other words, is that courts may take the view that if a community sentence has been tried and failed, another community sentence should not be imposed for a further offence of moderate seriousness. We saw in Chapter 10.6 that attempts have been made in the definitive guidelines to ensure that this view is not taken, and that the range of requirements that may be made as part of a community sentence is used constructively and not just once for each offender. 5 There are other dangers, too, such as the imposition of too many requirements in an individual case to the extent that an offender – particularly one with a disorganized lifestyle or other per- sonal problems – is ‘set up to fail’. The role of NOMS and the National Probation Service, in preparing sensitive pre-sentence reports and in ensuring that there is asufficient range of relevant programmes available in each area, is no less crucial than that of the courts in ensuring that the guidelines are properly followed, that the statutory threshold for a community sentence is treated as meaningful (which appears not to have been the case in recent years), and that breaches are dealt with in context and proportionately. NOMS and the National Probation Service must also continue to strive to improve the effectiveness of the programmes they offer, without succumbing to the temptation to make excessive claims about their results. The next statutory threshold is also critical to the application of the new sen- tencing framework. Again, there is little evidence that in recent years courts have taken a proper view (or indeed any view) of the requirement to impose custody only if the offence is too serious for a fine or a community sentence. It would not be appropriate here simply to repeat the warnings collected in Chapter 10.7.4 above under the provocative heading, ‘101 malfunctions’. But we must recall that the new framework – with custody plus, suspended sentences and intermittent custody all clustered around the custody threshold – will require careful handling in both the magistrates’ courts and the Crown Court. The guidelines set out the principles, but at the point of application there will beaconsiderable degree of judgment to be exercised on whether the custody threshold has been passed and whether there are sufficient reasons to take the case back down to a community sentence or a suspended sentence or (in a small number of cases) to intermittent custody. The success of these sentences will depend considerably on how NOMS and the National 5 See SGC, NewSentences: Criminal Justice Act 2003 (2004), discussed in ch. 10.6 above. 384 Conclusions Probation Service carry out their ‘parts of the bargain’, as it were, in terms of pro- viding relevant and persuasive pre-sentence reports, in sustaining a sufficient range of programmes in each area, and in ensuring that any requirements imposed are duly supervised. But it will be court decisions that make or break the bold initiatives taken by the government in creating this part of the new framework. 13.3 Delivering change: the guideline system Previous editions of this book have argued strongly in favour of the creation of a sys- temofsentencing guidelines, tailored to English requirements, for several reasons – particularly for improving consistency in the delivery of sentencing policy and broadening the range of professionals having an input into sentencing guidance. As we saw inChapters 1 and 2, the Sentencing Advisory Panel began work in 1999 and it proposed guidelines to the Court of Appeal for five years until 2004. The Panel’s method of working involves wide consultation among interested organiza- tions, considers the opinions of members of the public (there are three lay persons on the Panel too) and takes several months to come to fruition. The process then changed, as a result of the Criminal Justice Act 2003, with the introduction of the Sentencing Guidelines Council. The Council now issues its definitive guidelines. It is a cumbersome system, and all the arguments about consulting Parliament, and not leaving a purely judicial body to issue the guidelines, could equally have been met by adapting the Sentencing Advisory Panel rather than creating an extra tier. However, that is the mechanism we now have: will it work? Michael Tonry has argued that the new system is flawed because it ignores the lessons of other guideline systems that have been operating for up to 25 years. 6 In particular, a body with a judicial majority and a judicial chair is said to be too conservative to make the kind of changes that are needed if the idea of guidelines is to be taken seriously – for example, reassessing relativities between offences, reviewing the evidence on the effectiveness of prisons and non-custodial options and then acting on the results. One reply is that the English system required a tailor-made solution and was and is not ready for the kind of radical change advocated by Tonry. The system has long had guidelines, in the form of Court of Appeal judgments, and the new system can be seen as a further evolutionary step rather than a revolution. Judges and magistrates will resist the changes if they do not consider that they have some ‘ownership’ of them. The kinds of deviant behaviour seen among some US judges, sometimes (as in the case of the federal system) resulting in greater compulsion and rigidity in the guidelines, could become much more common in this country if there was substantial alienation from the approaches adopted in the guidelines. It remains an open question whether the government was right in the model it chose. The early days of the Sentencing Guidelines Council have been directed by a sympathetic and knowledgeable Lord Chief Justice, although not 6Among several writings, see most recently Tonry (2004), ch. 5. 13.4 Risk, public protection and trifurcation 385 without some misgivings among other senior judges. When Lord Woolf retires, the orientation of the whole exercise could change. Are the published guidelines well conceived and well drafted? Those questions are for others to answer. A particular style was adopted by the Panel, and the Council appears to wish to simplify the format so that the essence of the guidelines can be conveyed more simply and succinctly. If there is to be progress towards the goal of comprehensive guidelines – albeit that that will take many years, in view of the consultation process and the part-time nature of the two bodies – then a simpler format for guidelines is surely a proper objective. Are the guidelines self-consistent? Efforts have been made to ensure that there is no incompatibility of approach or outcome among the 15 sets of guidelines and the other drafts that are in the public domain, but the stage has now been reached at which some hard thinking needs to be done about relativities between offences and their sentence ranges. In many US guideline jurisdictions this was one of the first tasks – to rank the major offences. The English system has proceeded piecemeal up to this stage, although with occasional discussions of wider relativities, but an effort to devise a coherent framework (even if it may need to be adapted) must now be made. What impact do the guidelines have on sentencing practice? Anecdotal evidence has been mentioned, but the fact is that there is no research evidence on this point. If relevant evidence were available, it would tell us whether sentences for rape, handling stolen goods, domestic burglary or causing death by dangerous driving had been affected by the sentence levels proposed by the Panel and laid down by the Court of Appeal. But a far more difficult test is the one set by the guideline on the new sentences introduced by the Criminal Justice Act 2003. 7 Thus the government has abandoned the policy of proliferating the number of community sentences, and the new Act incorporates a single community sentence with a range of possible requirements, but this renders critical the various thresholds provided by the law. As is apparent from part 13.2 of this chapter, how sentencers approach community sentences and the suspended sentence (and, where available, intermittent custody) will be absolutely crucial in determining the impact of the new Act. The guideline captures the spirit of the legislation and tries to convey it, in practical detail, to sentencers. The horses have been taken to the water: will they drink? 13.4 Risk, public protection and trifurcation English sentencing has sometimes been depicted as a bifurcated system, in which apolicy of lowering the penal response towards non-serious offenders has been combined with a much more severe policy in respect of those committing seri- ous crimes. The ‘lower track’of sentencing is one that tries to avoid custody, or at least to keep it short in those cases where it is thought ‘unavoidable’. The ‘upper track’ of sentencing is characterized by long sentencers for armed robbers, drug 7 SGC, NewSentences: Criminal Justice Act 2003 (2004). 386 Conclusions smugglers and serious sexual and violent offenders. In this context, the operative conception of proportionality becomes an elongated or stretched scale that accen- tuates the extremes of the spectrum of penalties, rather than spacing offences out ‘evenly’. Changes of emphasis in recent years, and particularly some provisions in the Criminal Justice Act 2003, suggest that there is a third ‘track’ emerging in English sentencing, and that a word such as ‘trifurcation’ might better convey contemporary sentencing policies. This third track is one that places the emphasis on the risk that an offender is believed to present rather than upon the offence(s) already committed. Public protection is seen as an important rationale for sentencing, and so the assessment of risk becomes a key factor. This element is evident in the burgeoning range of preventive orders discussed in Chapter 11.2 above: these orders are not regarded as punitive, but are rather seen as protective and justified by the need to prevent a person from doing harmful acts in the future. Whatever the justification for such measures in principle – and several counter-arguments were put in Chapter 6.6 and Chapter 11.2 above – there are acute difficulties raised by practice. One is that the conditions imposed, particularly in anti-social behaviour orders, may be numerous and very restrictive, often aimed at a young offender or someone with a disorganized lifestyle. The order is entirely negative, although there is now some provision for the supervision of juveniles. The second practical difficulty is that sentencing for breach of such orders has tended to be severe, particularly in respect of breach of an ASBO, which constitutes a separate offence with a maximum penalty of five years’ imprisonment. The preventive orders, and sentencing for their breach, constitute one new strand of a risk-based penal strategy. Persons (usually, but not always, offenders) are iden- tified as posing a risk to others, on the basis of behaviour that may or may not amount to a criminal offence and may only have been proved in civil proceedings. 8 Twomore strands of this strategy are the new approach to persistent offenders and the new provisions on ‘dangerous offenders’. The approach to persistent offenders, discussed in Chapter 6.3 above, urges courts to treat each recent and relevant pre- vious conviction as an aggravating factor when sentencing for the current offence. This has the potential to increase sentences for persistent offenders well beyond the level appropriate to the seriousness of the current or indeed the previous offences, and thus to lead to swingeing sentences for persistent minor offenders – notably property offenders such as shop thieves, handbag thieves and pickpockets. It is ques- tionable whether these offences are so serious in the scale of things as to warrant sentences of three, four or five years’ imprisonment, which were handed down in some such cases even before the new law came into force. As for the new provisions on ‘dangerous offenders’, these are likely to lead to a sharp rise in the number of offenders sentenced to life imprisonment or to imprisonment for public protection. 8The admissibility of evidence would be governed by the civil law, but the standard of proof is equivalent to that in criminal proceedings, i.e. beyond reasonable doubt. 13.5 Proportionality and social justice 387 Provisions on dangerous offenders form a part of many sentencing systems across the world, despite the well-documented problems of identifying the dangerous and the poor prediction rates revealed by almost all studies. 9 What is particularly objec- tionable about those in the 2003 Act is that they have an enormously wide range of application and could lead to long indeterminate sentences for two offences of only moderate seriousness committed some years apart. Moreover, the so-called ‘test’ of dangerousness in s. 229 of the new Act is broad, unspecific and skewed by apresumption of dangerousness that may arise from one previous conviction for a qualifying offence. Even if some justifications for longer, incapacitative sentences for a group of ‘dangerous’ offenders can be found, 10 this new law is condemned by its ‘over- breadth’. The preventive orders such as ASBOs and the new law on previous convic- tions are vitiated by the shared presumption that a person who breaches an order or commits another offence (as the case may be) ought to receive a more severe sanc- tion for going against the authority of the state in that way. There is ample evidence that people breach preventive orders or commit further offences for a variety of reasons, some of which reflect the situation they are in, defects in their personality or a response to unusual pressures. This is not to say that all such persons should be excused or their wrongdoings mitigated, but rather that the approach of these two laws presumes that courts should not look first into the reasons for what has happened. When the Council of Europe recommended that previous convictions should not mechnically be treated as making an offence more serious, 11 they were pointing to this multiplicity of reasons. These English laws are wrong to presume otherwise, and to take the notion of defiance of authority as a strong reason for severity. 13.5 Proportionality and social justice A further objection to these three elements of the risk-based penal strategy is that they, like most other severe elements in the criminal justice system, are likely to impinge disproportionately on offenders from disadvantaged backgrounds. In all the debate about sentencing and criminal justice policy in the last few years, the impacts on members of ethnic minorities, on the unemployed and on the mentally disordered have received little examination, and although the treatment of women offenders has received discussion, there has been little by way of concrete changes of approach. Some general points were made on race, poverty and gender in Chapter 7 above and on mental disorder in Chapter 9.6 and 12.3 above, but one salient feature is the extent to which these and other disadvantaged categories overlap. The crim- inal justice system, and particularly the prison system, contains a disproportionate number of people with not just one but more than one of these characteristics. 9 See generally ch. 6.8 above. 10 See further von Hirsch and Ashworth (2005), ch. 5. 11 See ch. 6.3 above. 388 Conclusions Thus black people may be over-represented among the mentally disordered; a high proportion of mentally disordered offenders are unemployed and without settled accommodation; many women offenders are also very poor and/or have a drug problem; and so forth. These facts, as well known to the government as to crimi- nologists, have been marginalized in policy-making and debate, probably because they do not have the vote-winning potential of the new dangerousness sentences or the approach to persistent offenders. If the Sentencing Guidelines Council follows its declared line on the centrality of the proportionality principle in sentencing, 12 then we should see new guidelines that may – at least for offenders not caught by the previous convictions premium or the dangerousness provisions – see the emergence of some more definite sentence levels that focus on the offence itself and restrict the possibility of discrimination. Whether English guidelines will be so fine-grained as to exert such control over sentencers must be doubted, however. Moreover, there is a whole range of questions about the application of the proportionality principle in English sentencing. The question of the relativities between offences (‘ordinal proportionality’) has been raised in part 13.3 above, and the current structure calls for a root-and-branch reconsideration. But in Chapter 5 above we identified another issue on proportionality. For some offences the presence or absence of an aggravating factor appears to have a greater effect on sentence than the basic offence itself. Thus where an offence is committed against an older person or indeed any vulnerable victim, the extent to which that aggravates the sentence may be 100 per cent or more of the basic offence. The same may prove to be true of previous convictions, as we saw in Chapter 6.3.Onthe other hand, where an offender pleads guilty and satisfies the sentencer that he or she is genuinely remorseful, the reduction in sentence may reach 40 per cent or more. Enhancements or reductions of sentence of this magnitude are questionable in the light of the proportionality principle, and it is important that they be re-examined. 13.6 Political courage and criminal justice It was argued in parts 13.2 and 13.3 of this chapter that recent legislation has introduced some potentially worthwhile reforms into English sentencing, although some manifestly unsatisfactory features of the new system have been pointed out in parts 13.4 and 13.5.The paradox is that it is those features here described as unsatisfactory that the government has promoted most vociferously, and those features here described as in principle worthwhile that have received far less coverage in public speeches. The government remains nervous about criminal justice policy and unwilling to give the leadership necessary to explain to the public exactly what it is doing. It seems that every reform package must contain elements of greater severity, and they then become the focus of public discussion. 12 SGC, Overarching Principles: Seriousness (2004). 13.6 Political courage and criminal justice 389 This is wrong for two main reasons. It is wrong because the Home Office knows that imprisonment is no more effective that other forms of sanction in preventing reoffending, and indeed that the hydraulic hypothesis (an increase in sentence lengths brings a decrease in offending rates) is simply not sustainable. The Halliday report set out the research findings very clearly, even though it rather overestimated the ability of rehabilitative programmes to reduce reoffending, but the government has not taken heed. Despite its rhetoric about evidence-led policies, its approach to sentencing has been to promote what it conceives to be a populist agenda in defiance of the research findings. The government is also wrong in the second place because it knows from its own and other research that the public tends to be ill-informed about crime and sentencing in general, and that when members of the public are asked to focus on the facts of particular cases they are not necessarily more punitive than the courts – indeed, they are more interested in exploring rehabilitative and restorative responses. Nonetheless, the Home Office has taken few measures to deal with this phenomenon of ignorance and latent support, and seems more concerned about the popular press and its probable reactions. The upshot is that the constructive side of its agenda (outlined in part 13.2 above), which is an immense undertaking involving large numbers of criminal justice professionals and large numbers of offenders, is not explained to the public as the centrepiece of its sentencing policy. The government should take advantage of falling crime rates to reorganize its criminal justice policy, to reassert a sharpened proportionality principle, and to push forward its more constructive agenda while allowing the policies outlined in part 13.4 above to wither on the vine. Unless it has the courage to take these steps, we are likely to witness a spiralling prison population with relatively non-serious offenders being swept into custody in their thousands, many of them falling within the disadvantaged groups mentioned in part 13.5 above. A change of priorities is much overdue. . social justice. The chapter concludes with some reflections on political courage and the need for leadership on criminal justicepolicy in general and sentencing. expected of sentencing. It should aim to be fair and proportionate, and any exceptions to this aim call for strong and evidence-based justification. Sentencing