Principles of sentencing - political influences

Criminal justice system 1999 - 2000 cost £60 billion (HORS 217)

2005 update shows a fall of 9%, here

Crime statistics obtained by

Recording of offences by the police.
Biennial British Crime Survey (not all crimes)

Home Office report, here

Reforms

All governments, of all political persuasion make extensive changes to the Criminal Justice System tackling new types of crime or existing crimes by applying new sentencing or treatment of offenders in an attempt to reduce crime and obtain a political advantage by satisfying the public desire to have crime dealt with effectively.

Sentencing Guidelines Council

The new independent Sentencing Guidelines Council was set up in 2004 under the Criminal Justice Act 2003.

The Halliday report emphasised the importance of sentencing guidelines, Halliday was followed by the White Paper “Justice for All”.

The Council includes the Lord Chief Justice and members with experience of the police, probation and prison services and victims of crime. Parliament will scrutinise the Council’s draft guidelines through the Home Affairs Select Committee.

All courts will be required to take the Guidelines issued by the Council into account and to give reasons for departing from them.

Sentencing Advisory Panel

Website

The existing Sentencing Advisory Panel was set up by the Crime and Disorder Act 1998 tenders its advice to the Sentencing Guidelines Council, and not the Court of Appeal, as it did before.

The Sentencing Advisory Panel is an independent public body charged by the Home Office with encouraging consistency in sentencing in the Crown Court and the magistrates' courts of England and Wales. It has been meeting regularly since 1 July 1999, more here.

There are fifteen members on the Sentencing Advisory Panel. The members include judges, academics and criminal justice practitioners, as well as public representatives. They have all been appointed by the Lord Chancellor, in consultation with the Secretary of State and the Lord Chief Justice.

Existing sentencing guidelines

Sentencing guidelines already exist for the more serious offences (e.g. burglary, rape, serious drug offences, fraud, causing death by dangerous driving); they are issued when the Court of Appeal believes guidelines to be necessary but only when a case of that type comes to the Court of Appeal.

For cases that are dealt with in Magistrates' Courts, the Magistrates' Association issues the Magistrates' Courts Sentencing Guidelines, latest edition 2004, and most Magistrates' Courts adopt these.

Sentencing website here.

Criminal Justice Act 1988 (Reviews of Sentencing) Order 2000

[Sentencing – AG can now refer unduly lenient either way offences]
In force: August 21, 2000. Made under Criminal Justice Act 1988 s.35(4).

This Order extends the range of offences triable either way which, under the Criminal Justice Act 1988 Part IV, the Attorney General may refer to the Court of Appeal, with the leave of that Court, where he considers that a sentence imposed in the Crown Court was unduly lenient.

The Criminal Justice Act 1988 (Reviews of Sentencing) Order 2003

adds Racial and religious hate crimes

This Order extends the range of offences where the Attorney General can use his powers.

racially or religiously aggravated assaults;
racially or religiously aggravated criminal damage;
racially or religiously aggravated public order offences;
racially or religiously aggravated harassment.

R v Secretary of State for the Home Department Ex p. Hindley (2000)

[Sentencing - life imprisonment – Murder – Myra Hindley]
H, convicted of a series of child murders, appealed against the dismissal of her application for judicial review of a decision taken by the Home Secretary in 1990 that she should serve a whole life sentence, subsequently re-affirmed in 1997.

H contended that under the Murder (Abolition of Death Penalty Act) 1965 it was intended that a prisoner would be released after a finite period of imprisonment, that the policy currently practiced in relation to whole life tariffs was Wednesbury unreasonable and that a whole life sentence amounted to an unlawful increase of the tariff imposed in 1985.

Held: There was nothing unlawful in requiring detention of a prisoner until death where the crime committed was so wicked, that the Home Secretary's continued willingness to reconsider his decision meant that his discretion had not been unlawfully fettered and that the 1985 decision had been provisional.

Appeal dismissed.

UK prison population is 'average'

If we imprisoned offenders at the average rate (per 1,000 crimes) of EU members, the prison population would be 113,150 instead of 80,000.

Eight out of the fifteen members of the EU for which figures are available imprisoned offenders at a higher rate than England and Wales. The calculations are based on figures for 2003 (the latest available from the Council of Europe).

With a prison population in England and Wales of 80,000, if we imprisoned at the same rate as France, the prison population would be 91,113. If custody were used at the same rate as in Scotland, there would be 88,142 in jail.

Socialist Spain has the highest rate per 1,000 crimes and if her rate applied in England and Wales the prison population would be about 369,000.
Civitas report here

Record prison population

Prison Population

Record population - all time high = February 2008, 81,812,

Maximum capacity = 83,638

Latest prison figures:

Source: MoJ figures

HM Prison Service

Trago Mills, civil action for shoplifters

[Sentencing – shoplifting – contributions to security costs]
Trago Mills, who own a chain of superstores in the West Country, are piloting a civil recovery scheme under which shoplifters will be forced to pay £80 towards the cost of catching their fellow thieves. The first thief to challenge the demand recently lost his case in Bodmin County Court and trials have shown that the threat of a large bill is a greater deterrent than a small fine and a criminal conviction. Other stores are now looking into setting up a similar scheme.

R (Clift) v Secretary of State for the Home Department [2004]

Whole case here

The role of the Secretary of State for the Home Department in determining when offenders should be released from prison on licence has been progressively reduced.

This case decided that the Home Secretary’s power to determine the release on licence of prisoners who were serving determinate sentences of 15 years or more was reasonable and did not contravene art 5, when read with art 14, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Victim Personal Statements

VPSs are not intended to influence sentencing

A victim personal statement (VPS) (previously they were called Victim Impact Statements) is helpful to magistrates and judges in sentencing and the CPS in deciding the charge.

In the vast majority of cases the victim personal statement are taken by the police.

The current scheme has been running since 2001 They are used by the Crown Prosecution Service to decide whether or not it is in the public interest to prosecute, and by the courts to decide matters of bail and in determining an offender’s punishment.

In 2006 their use was allowed in courts, a relative’s statement was permitted to explain how the death affected their family.

Despite opposition a pilot involving victims' advocates went ahead in 2006, and nationwide on 1 October 2007. The offences covered are murder and death by driving but others will be added in future years.

Manchester is one of five crown courts that piloted the scheme, the pilots also ran at the Old Bailey and in Birmingham, Cardiff and Winchester. Manchester alone hears more than 50 murder and manslaughter cases a year.

The arrangement gives the relative the opportunity to make a personal statement in court (addressing the judge, not the jury) before sentence to explain how the death affected their family. This does not extend to other crimes.

Relatives can address the court in person or through a lawyer or other representative - a victim’s advocate. The role of the advocate is to take them through the statement. The advocate could also provide advice and information about the case, the trial and decisions to be taken.

Initial reaction to the scheme is mixed and will not work without judicial approval; for example would all the relatives of victims of Harold Shipman, Peter Sutcliffe or Fred West be afforded individual advocates? And if those responsible for the terrorism attacks of July 7 are brought to court, would only the families of the deceased have a voice “while those who had merely been maimed have none?

As laudable as the aims of VPSs are they are not without controversy and some victims wish to distance themselves from the criminal justice process and not be responsible for sentencing, others welcome the opportunity to contribution to the criminal justice system by being allowed to state the effect the crime has had on their lives.

VPSs are seen as part of the “Restorative Justice” programme which is gaining supporters.

The tariff

On imposing a life sentence, a judge is required to fix a minimum period (the tariff) which must expire before the Parole Board will consider whether it would be safe to release the offender on licence. The starting point is the sentence the offender would receive if a life sentence were not imposed.

The Criminal Justice Act in 2003 gave the power to set murder tariffs to judges in court at sentencing and not the Home Secretary.

Those waiting to be dealt with by the Home Secretary under the old system had to be transferred to the courts.