December 02 2023

Sentencing Council: leading role or bit part player?

Sentencing Council: leading role or bit part player?

Pic by Andy Aitchison from Proof magazine (HMP Winchester)

Last week the Sentencing Council of England and Wales issued new guidelines on offences involving the possession of firearms. For the first time they suggested that sentencers should be aware of ‘a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders’.

Professor Lesley Thomas QC tweeted ‘about bloody time – Judges & Magistrates take note!’

These are tentative steps into controversial territory for a conservative organisation which has previously said that ‘our guidelines are drafted in a way which is intended to be neutral as to the sex and ethnicity of an offender’ and that it could not identify the reasons for disparities in drug sentencing. Maybe the Sentencing Council is turning a new leaf in advance of the launching a new strategy? Earlier this year they openly consulted on ‘What next for the Sentencing Council?’ A new report by Rob Allen for Transform Justice –The Sentencing Council and criminal justice: leading role or bit part player? suggests that the Sentencing Council needs to reform in many ways, not just in attempting to address racial disparity in sentencing.

The Sentencing Council was set up over a decade ago to produce greater consistency in sentencing, and more predictability. In the 2000s prison numbers had radically increased (by 18,000 in eight years). At one point prisons were so over-crowded that the government resorted to an emergency early release scheme. Lord Carter was asked by the Labour government to come up with solutions which would prevent such knee-jerk responses. He proposed separating sentencing policy from the political process, and the setting up both of a sentencing framework and a standing commission. The latter was achieved but sentencing policy is still intensely political and the standing commission – the Sentencing Council – is not consulted on it.

When the government decided in 2009 to make the Sentencing Council a judicially led body, they closed down the possibility of it having influence on sentencing policy or having any responsibility for controlling the prison population – since judges need to be independent of policy. Currently more than two thirds of the members of the Sentencing Council are members of the judiciary and more than two thirds are lawyers. The Sentencing Council has set out to achieve less ‘post-code’ sentencing through producing very detailed sets of guidelines to help judges decide how to sentence.

But has the drive for consistency contributed to the trend for ever harsher sentencing? The average prison sentence has risen by 40% in the last ten years, across nearly all crime types. Sentence inflation can’t just be blamed on new primary legislation, since for most of these crime types there has been no new legislation. The Sentencing Council acknowledges that there is a trend for sentence inflation but doesn’t think its own guidelines have contributed. Maybe not, but in the case of 11 offences (including ABH and burglary) sentencing for those offences increased in severity after the new guidelines were implemented. And in most of those cases the Council didn’t intend sentence severity to increase. Its not clear whether guidelines have caused punishment to increase, but they are certainly not preventing sentence inflation, nor in many cases os the Council accurately predicting what the effect of new guidelines would be.

The Sentencing Council could play a very different role. It could try to work out what the key causes of sentence inflation are and then work on addressing them. One theory is that offences are simply more serious in nature nowadays. But is it really the case that the average robbery or drugs offence is so much more serious than ten years ago? The Sentencing Council needs to find out. And to establish whether an increase in the severity of sentencing is leading to more effective sentencing.

The Sentencing Council has a statutory duty to have regard to the relative effectiveness of sentences in reducing reoffending. But it has chosen to ignore this bit of its remit. If you search ‘effectiveness’ on their new website it comes up with ‘no results’. Promoting effectiveness of sentencing would start with the importance of supporting desistance – how people with a previous pattern of offending abstain from crime. But a search for desistance on the Sentencing Council website also comes out with no results. Unless and until sentencing fits into the evidence base of what works to supports desistance it will never be effective in reducing reoffending. The evidence base for short prison sentences reducing reoffending is pretty thin, yet sentencing guidelines continue to promote their use. There is strong evidence that criminal sanctions make no difference to the reoffending of someone convicted of domestic abuse, but the sentencing guidelines don’t mention that.

I’m sympathetic to the Sentencing Council failing to address the evidence on what works to prevent reoffending. It is an impossible task to reconcile the need to comply with primary legislation, to comply with one of the purposes of sentencing being punishment and have regard to the effectiveness of sentencing in reducing reoffending. But maybe that leads to the inevitable conclusion that the Sentencing Council is not fit for purpose and that we need to start again. We need an independent government sponsored body that researches what effective sentencing is, advocates for that evidence to be incorporated into primary legislation and guidelines, and that educates the public as to what makes for an effective sentence.

Transform Justice is holding an event to discuss the role of the Sentencing Council – more here