Guest blog: Penelope Gibbs, Justice campaigner and Director of Transforming Justice

12 January 2017

Transforming justice: The Setencing Council of England and Wales

There were four prison disturbances in late 2016 and a major escape from Pentonville. 111 prisoners committed suicide last year, the highest number in ten years.  This led three former cabinet ministers (Ken Clarke, Nick Clegg and Jacqui Smith) to write to the Times calling for a new penal policy: "to restore order, security and purpose to our jails, ministers should now make it their policy to reduce prison numbers. If the tide is not turned soon, the prisons crisis will do untold damage to wider society."

But reducing prison numbers requires concrete action to prevent sentence inflation.  Our total prison population rose to and remains at c 85,000 not because more people are being sentenced to imprisonment but because sentences have got considerably longer - on average by an extra three months in the last six years. Sentence inflation has been particularly high for sex and drugs crimes.

A new report "The Sentencing Council of England and Wales - brake or accelerator on the use of prison?" from Transform Justice, suggests that sentencing guidelines may be one of the factors leading to more punitive sentences. When originally conceived in 2007, the Sentencing Council was supposed to provide a means of curbing prison numbers, which were then rising steeply upwards.  But Judges and parliamentarians hated the idea that sentencing should be in any way linked to resources, so that idea was abandoned.  The Sentencing Council started work in 2010, intending to make sentencing more consistent.  There had been criticisms of post code sentencing, whereby people convicted of the same offence were more likely to be sentenced to custody in one area than another.

The Sentencing Council is now established.  Its Chairman is Lord Justice Treacy and it has eight judicial and six non judicial members including Rosina Cottage QC of Red Lion Chambers. It has produced guidelines - a framework for sentences - for a variety of offences from dangerous dogs to food safety. Most feel that the pressure to keep within the sentencing guidelines has made sentences more consistent, but is this at the cost of increased severity?  In some cases, the Sentencing Council themselves estimate that their new guidelines will result in more offenders being imprisoned - proposed guidelines on reduction in sentence for a guilty plea may require 1000-4000 extra prison places.  But in other cases the Council has produced guidelines which they predicted would not change the length of sentences, but appear to have had that affect - the average prison sentence for grievous bodily harm with intent went up 17% in the year after the new guideline was introduced.

Without proper research it's impossible to know exactly what role guidelines have played in sentence inflation, but the Sentencing Council could undoubtedly play a greater role in combating the trend.  It could start by looking at the impact of sentences.  Lord Chancellor, Jack Straw told parliament in 2009 that "ensuring the effectiveness of sentencing will be an important role of the Sentencing Council". There is a statutory requirement for the Council to consider the cost of different sentences, and their relative effectiveness in preventing re-offending, but it has not really done this. This is partly because the data is sometimes not available, partly because broader research is not judged relevant. Proposed new guidelines  on reduction in sentence for a guilty plea were developed in the absence of any data on what proportion of defendants plead guilty in the magistrates' courts. Given that most cases are heard in the magistrates' courts, this seems a big gap. New proposals on sentencing knife crime cite no evidence or research on the effectiveness of different sentences or approaches in deterring or reducing knife crime. So we have sentencing guidelines which are not based on outcomes.  If they were, the Council would try to avoid recommending short prison sentences, which evidence suggests are ineffective, and suggesting that punitive sentences act as a deterrent, since few do.

How should the Sentencing Council be reformed?  The Transform Justice report suggests that

The membership of the Council should be reviewed.  Should the Council be dominated by the judiciary? Should expertise in defence and rehabilitation be better represented?

Judges should be allowed to sentence more "creatively" by sentencing below the range if it is in the interests of problem solving or rehabilitation.

The Council should produce fewer guidelines on particular offences, and more on topics that apply to all offences; for example on choosing the objectives of sentencing; deciding when offences are so serious that only prison can be justified; the extent to which previous convictions make offences more serious; and what factors relating to a person's circumstances make offences less serious, and sentences capable of being suspended.

The Council should adopt a broader perspective when producing guidelines, analysing the way in which sentences of varying types and lengths, both custodial and non-custodial, contribute to the purposes and effectiveness of sentencing.

Reform of the Sentencing Council isn't yet on the government's agenda, but if Ministers want to reduce prison numbers, it would be a good place to start.