Exploring Sentencing Practice in England and Wales

Transcription

1 Exploring Sentencing Practice in England and Wales

2 Also by Julian V. Roberts POPULAR PUNISHMENT: The Normative Significance of Public Opinion for Sentencing Theory and Practice (2014, co-editor ) SENTENCING GUIDELINES: Exploring the English Model (2013, co-editor ) SENTENCING FOR MURDER: Exploring the Mandatory Sentence of Life Imprisonment for Murder (2012, co-author ) PRINCIPLES AND VALUES IN CRIMINAL LAW AND CRIMINAL JUSTICE (2012, co-editor ) MITIGATION AND AGGRAVATION AT SENTENCING (2011, editor ) THE ROLE OF PREVIOUS CONVICTIONS AT SENTENCING: Theoretical and Applied Perspectives (2010, co-editor ) HEARING THE VICTIM: Adversarial Justice, Crime Victims, and the State (2010, co-editor ) PRINCIPLED SENTENCING (THIRD EDITION) (2009, co-editor ) PUNISHING PERSISTENT OFFENDERS: Community and Offender Perspectives on the Recidivist Sentencing Premium (2008, author ) UNDERSTANDING PUBLIC ATTITUDES TO CRIMINAL JUSTICE (2005, co-author ) THE VIRTUAL PRISON: Community Custody and the Evolution of Imprisonment (2004, author ) PENAL POPULISM AND PUBLIC OPINION (2003, co-author ) RESTORATIVE AND CRIMINAL JUSTICE (2003, co-editor ) CHANGING ATTITUDES TO PUNISHMENT: Public Opinion, Crime and Justice (2002, co-editor ) MAKING SENSE OF SENTENCING (1999) ( co-editor ) PUBLIC OPINION, CRIME AND CRIMINAL JUSTICE (1997, co-author ) CONFRONTING SEXUAL ASSAULT (1994, co-editor ) EVALUATING JUSTICE (1993, co-editor )

3 Exploring Sentencing Practice in England and Wales Edited by Julian V. Roberts University of Oxford

4 Editorial matter and selection Julian V. Roberts 2015 Chapters Contributors 2015 Foreword Paul Wiles 2015 Softcover reprint of the hardcover 1st edition All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6 10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act First published 2015 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number , of Houndsmills, Basingstoke, Hampshire, RG21 6XS Palgrave Macmillan in the US is a division of St Martin s Press LLC, 175 Fifth Avenue, New York, NY Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave and Macmillan are registered trademarks in the United States, the United Kingdom, Europe and other countries ISBN ISBN (ebook) DOI / This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress.

5 Contents List of Figures List of Tables Foreword Paul Wiles Acknowledgements Notes on Contributors vii ix xi xiv xv 1 Empirical Sentencing Research: Options and Opportunities 1 Julian V. Roberts and Mike Hough 2 Using Court Records for Sentencing Research: Pitfalls and Possibilities 18 Mandeep Dhami and Ian Belton 3 Sentencing Practices and Trends: Julian V. Roberts and Keir Irwin-Rogers 4 Exploring Public Knowledge of Sentencing Practices 61 Martina Feilzer 5 Defining and Measuring Consistency in Sentencing 76 Jose Pina-Sánchez 6 Sentencing Women: An Analysis of Recent Trends 93 Carol Hedderman and Rebecca Barnes 7 Women and Sentencing: Challenges and Choices 118 Loraine Gelsthorpe and Gillian Sharpe 8 Sentencing and Dependents: Motherhood as Mitigation 137 Shona Minson 9 Paying for the Past: The Role of Previous Convictions at Sentencing in the Crown Court 154 Julian V. Roberts and Jose Pina-Sánchez 10 Penitence and Persistence: How Should Sentencing Factors Interact? 173 Hannah Maslen v

6 vi Contents 11 Exploring the Impact of Sentencing Factors on Sentencing Domestic Burglary 194 Keir Irwin-Rogers and Thomas W. Perry 12 More Than One Crime: Sentencing the Multiple Conviction Offender 221 Natalia Vibla 13 Sentencing for Murder: Drawing Lessons from Research 235 Barry Mitchell and Julian V. Roberts 14 Sentencing Young Offenders 251 Max Lowenstein Index 263

7 List of Figures 3.1 Trends in all disposals, all courts, Trends in cases sentenced, magistrates courts, Trends in cases sentenced, Crown Court, Rates of all disposals, all courts, Rates of all disposals, magistrates courts, Rates of all disposals, Crown Court, Trends in custody, suspended sentence orders and community sentences, all courts, Trends in immediate custody, all offences, magistrates courts and Crown Court, Trends in community sentence orders, magistrates courts and Crown Court, Trend in fines, magistrates courts, Trends in suspended sentence orders, magistrates courts and Crown Court, Trends in levels of punitiveness Custody rates for assault offences by court Top ten courts with highest and lowest probabilities of custody for common assault before and after the new guideline came into force Between court variability in the probability of custody before and after the new guideline came into force Variability in the probability of custody, considering aggravating and mitigating factors, before and after the new guideline came into force Potential influences upon judicial decision making when sentencing a mother with dependent children Theoretical models for the use of previous convictions at sentencing Theoretical projections and empirical trends: effects of number of previous convictions on probability of custody Effect of previous convictions on probability of custody controlling for other factors 167 vii

8 viii List of Figures 10.1 Relationship between number of previous convictions and the probability of custody for an assault offence, by remorse Sentence severity by mitigating factor Sentence severity by aggravating factor Sentence severity by number of previous convictions 209

9 List of Tables 1.1 Empirical and recommended sentence reductions for a guilty plea Cases sentenced in the magistrates courts and the Crown Court, Volumes and rates of all disposals, all courts, Volumes and rates of all disposals, indictable offences, all courts, Volumes and rates of all disposals, Crown Court, Volumes and rates of all disposals, magistrates courts, Trends in immediate custody rates by principal offence group, magistrates courts, Trends in immediate custody rates by principal offence group, Crown Court, Trends in community sentence rates by principal offence group, magistrates courts, Trends in community sentence rates by principal offence group, Crown Court, Trends in suspended sentence order rates by offence group, magistrates courts, Trends in suspended sentence order rates by offence group, Crown Court, Average custodial sentence lengths, all courts, all persons, Average custodial sentence lengths, Crown Court, all persons, Average custodial sentence lengths, magistrates courts, all persons, Average custodial sentence length by offence group, Crown Court Public estimates of the average custody rate for domestic burglary/rape, The prison population under sentence Number and percentage of women convicted of indictable offences Number of out of court disposals and court proceedings by gender, all ages, ix

10 x List of Tables 6.4 The sentencing of adult women to custody, The use of custody for adult women sentenced for indictable offences by court venue, Proportion of adult women (over 21) convicted of indictable offences who were sentenced to immediate custody at the Crown Court The sentencing of adult women and men (over 21) for indictable offences, Changes in magistrates court sentencing of women (over 21) following the CJA, Changes in Crown Court sentencing of women (over 21) following the CJA, Female sentence receptions by sentence length and offence, England and Wales, Ranking of mitigation factors: comparison of responses from the 2007 and 2012 studies Number of convictions and cautions by year, all offenders, indictable offences, Prior convictions and cautions, all indictable offences and specific offence categories, Volume of previous convictions taken into account by offence category, Custody rates by number of prior convictions, offence categories, Percentage of cases where remorse was noted by sentencer, Logistic regression model showing the extent to which variables predict whether the offender receives a custodial sentence for an assault offence Domestic burglary percentage of cases in which sentence factor was cited Percentage of offenders within sentence category by mitigating factor Percentage of offenders within sentence category by aggravating factor Average minimum terms imposed on offenders convicted of murder, Average custodial sentence length, selected offences, Public estimates of number of years served in prison by offenders convicted of murder Public acceptance of fixed term alternative to life imprisonment 246

11 Foreword Sentencing lies at the heart of the criminal justice process. Courtimposed judicial sanctions set the tone for the criminal justice system and attract widespread public and media attention. Given the number of criminal courts sitting all over the country, there is an inherent danger that sentencing practices could vary between different places. Our legal system has long recognised this danger and tried to manage it by a system of precedence and hierarchical decision-making. Despite these responses, the problem of differential judicial decision-making was repeatedly raised as a matter of concern in the last quarter of the twentieth century. In the words of the populist press, there were allegations of a postcode lottery in criminal sentencing, supported by data that showed apparently identical offences receiving different sentences across the country. Whether these really were identical offences, or whether they were sufficiently different in their facts to warrant different sentences, was difficult to determine because the judicial statistics lacked the necessary detail (and occasionally the quality), and there was resistance to collecting the evidence needed for systematic research. One response to this apparent lack of consistency was the creation, by the Criminal Justice Act, 2003, of the Sentencing Guidelines Council and its sister body, the Sentencing Advisory Panel, to provide guidelines for criminal sentencing. England and Wales thereby became one of the very few countries outside the United States to implement a national criminal sentencing guidelines system. The new body did important work in establishing that guidance could be provided to judges without impeding judicial discretion to such an extent that sentencing was reduced to a mechanical, formulaic process that denied substantive justice to both victims and offenders. However, this first attempt at creating a sentencing guidelines body had some weaknesses, and in late 2007, the Sentencing Commission Working Group, chaired by Lord Justice Gage, was set up to consider the existing arrangements and make recommendation for the future. 1 The result was a new body the Sentencing Council for England and Wales created by the Coroners and Justice Act, 2009, with an enhanced remit as to the status of its guidelines and a simplified and strengthened analytic and research function. The new Council was also xi

12 xii Foreword given a remit to increase public understanding of sentencing and to consult widely when drawing up its guidelines. From the beginning, the Council sought to lay out the logic of judicial sentencing in such a manner as to guide sentencers but also make the process of sentencing more transparent to the public. As is so often the case with government reform, the new body was conceived at a time of plenty but came into being during a period of financial constraint. Nevertheless, the new Council implemented a key recommendation from the Gage Report and started collecting information about sentencing decisions in the Crown Court through the Crown Court Sentencing Survey (CCSS). 2 The CCSS has provided an important basis for the Council to make evidence-based decisions about its guidelines. In addition, since the Council has made the data available to researchers, scholars have a new source of data that relates directly to development and evaluation of sentencing guidelines. 3 These changes in the provision of sentencing guidelines greater transparency regarding sentencing, concern for public understanding, evidence-based guideline development, open consultation and new data collection have led to a renewed interest in sentencing research. The present volume is evidence of this increased activity. In itself, this is an important outcome of the creation of the Council because, despite the centrality of sentencing to the criminal justice process, sentencing research has long been the Cinderella of criminal justice research. From the 1970s onwards, David Thomas, at Cambridge, opened up sentencing in England and Wales to academic scrutiny, but his work was legal rather than empirical. Andrew Ashworth, at Oxford, continued this work and extended it into empirical analysis, whilst later scholars, several of whom contribute to this volume, conducted studies on sentencing. This collection contains significant contributions on a range of important issues in sentencing. The authors report findings from the CCSS as well as other sources of data. This new interest amongst the academic community is to be welcomed and will contribute to a more informed public debate about sentencing. Lack of public knowledge and analysis of sentencing has been unhealthy and has allowed uninformed criticism of sentencing to go unchallenged. The academic research community, of course, has its own responsibilities: namely to ensure its research represents the world truthfully and speak such truths openly. This research may be supportive of the judicial process but not necessarily. The Sentencing Council was given a wide remit, ranging from promoting principled judicial consistency, to improving the position of victims in the sentencing process and to

13 Foreword xiii ensuring public confidence in sentencing. These are all worthy public goals, but in a time of shrinking public resources, difficult choices will have to be made for which the Council will be publicly accountable. Empirical research will help it make those choices (and fulfil its functions) but will also be a means to hold the Council accountable. This volume the first collection of essays exploring empirical and normative issues in sentencing represents a significant milestone towards the goal of understanding sentencing in England and Wales. Paul Wiles Notes As a result of financial constraints upon the Council, data collection for the magistrates courts has yet to be implemented. 3. For details of the CCSS data, see

14 Acknowledgements My primary debt is to the authors who have generously contributed to this volume. I am also grateful to Julia Willan, Harriet Barker and other colleagues at Palgrave Macmillan for their support and assistance, without which the publication of this volume would not have been possible. My thanks also to Binesh Hass for meticulous proofing and indexing. Julian V. Roberts Oxford 15 November, 2014 xiv

15 Notes on Contributors Editor Julian V. Roberts is Professor of Criminology at the University of Oxford. He has been conducting research in the area of sentencing since He is associate editor of European Journal of Criminology and Canadian Journal of Criminology. His books include Punishing Persistent Offenders (2008), Mitigation and Aggravation at Sentencing (2011), and Understanding Public Attitudes to Criminal Justice (2005, with Mike Hough). His most recent book is Popular Punishment (2014, edited with J. Ryberg). The contributors Rebecca Barnes has been Lecturer in Criminology at the University of Leicester since Her main area of research concerns domestic violence and abuse in lesbian, gay, bisexual and transgender relationships, and she has undertaken research on both the survivors and perpetrators of such abuse, as well as with prison, probation and third sector practitioners involved in the design and/or delivery of domestic abuse interventions. Ian Belton is a PhD student and research assistant at Middlesex University. His research investigates the cognitive processes used by decision-makers in the legal domain, with a focus on criminal sentencing. He has authored publications on legal decision-making, and sentencing in particular. Ian is also a qualified solicitor with eight years experience in the field of commercial litigation, both in London and in Brisbane, Australia. Mandeep Dhami is Professor of Decision Psychology at Middlesex University. Her research focuses on human decision-making, particularly in the criminal justice system. She is the author of over 80 publications and lead editor of Judgment and Decision-Making as a Skill: Learning, Development, and Evolution (2011). Mandeep was an advisor to the Sentencing Council in England and Wales. She is a fellow of the Society for the Psychological Study of Social Issues (American Psychological Association). Martina Feilzer is a senior lecturer in Criminology and Criminal Justice at Bangor University. Her main research interests are the relationship xv

16 xvi Notes on Contributors between public and criminal justice at local, national, and European levels; penal policy; and comparative and historical criminological research. She also has a strong interest in the use of mixed methods research and the secondary analysis and visualisation of existing datasets. Loraine Gelsthorpe is Professor of Criminology and Criminal Justice at the Institute of Criminology, University of Cambridge. She is also director of the Cambridge ESRC Doctoral Training Centre and co-convenor of the Cambridge Migration Research Network CAMMIGRES. Loraine has published widely on women, crime and criminal justice, youth justice, and community penalties in an international context, as well as on more general criminal justice topics. Recent research includes work on the criminalisation of migrant women. Recent publications include A Restorative Justice Approach to Family Violence: Changing Tack (2014, co-edited with A. Hayden, V. King and A. Morris). Loraine was made a fellow of the Royal Society of Arts in 2009 for distinguished contribution to criminal justice, and is the president of the British Society of Criminology (until July 2015). Carol Hedderman has been Professor of Criminology at the University of Leicester since Her research interests include the comparative effectiveness of different approaches to securing compliance and enforcing court penalties, desistance and what works in prison and probation, reconviction studies and the development of alternative measures of effectiveness, the treatment of women caught up in the criminal justice system, and the media reporting of probation. Mike Hough is Professor of Criminal Policy at Birkbeck, University of London, and associate director at the Institute for Criminal Policy Research. Mike has published extensively, with around 250 publications to his name (see ). Max Lowenstein is a senior lecturer in Law at Bournemouth University. His research interests encompass sentencing law, comparative criminology and criminal justice. Hannah Maslen is a research fellow in Ethics at the Oxford Uehiro Centre for Practical Ethics, University of Oxford. Her current research investigates the ethical, social and legal implications of brain intervention technologies. She also continues to work on topics in sentencing and is preparing a book on remorse and penal theory. Shona Minson was called to the Bar of England and Wales and practised criminal and family law from 1 King s Bench Walk, London. Her xvi

17 Notes on Contributors xvii professional experience has led to her research interest in the points of intersection between family and criminal law. Shona is pursuing ESRCfunded research at the Oxford Centre for Criminology on the impact of short-term maternal imprisonment on children, exploring the status of children of prisoners in English law. Her previous research examined the impact of motherhood as mitigation. She is part of the I-Hop Academic/workforce development task force an initiative of Barnardo s and the Department of Education to bring together those with an interest in the children of prisoners. Barry Mitchell is Professor of Criminal Law and Criminal Justice at Coventry University Law School, where he has long specialised in the law of murder and manslaughter and the punishment of offenders. He has published widely in these areas, and in pursuing his empirical research has worked with various government departments such as the Ministry of Justice, the Home Office, the Law Commission and the Crown Prosecution Service. Thomas W. Perry is a postgraduate researcher at the University of Birmingham. He is currently completing a PhD in Education, funded by the ESRC. His research concerns statistical modelling approaches to measuring school effectiveness, such as the value-added methodology. This research interest stems from his academic background in economics, in which he completed two degrees and five years experience as a teacher. Jose Pina-Sánchez is a fellow in Statistics at the London School of Economics and a part-time consultant to RAND Europe. His research interests encompass data quality issues such as measurement error and missing data, and other substantive topics such as consistency in sentencing and political decentralization. Keir Irwin - Rogers is a postgraduate researcher at the University of Sheffield. His ESRC-funded doctoral research explores offenders experiences and views of community sanctions. He has also conducted research for the Sentencing Council concerning the operationalisation of the principle of proportionality in sentencing guidelines. Gillian Sharpe is a lecturer in Criminology at the University of Sheffield. Previous publications have examined criminalised young women ( Offending Girls, 2012), the supervision of women lawbreakers, and persistent young offenders. Her current research focuses on transitions into adulthood amongst women criminalised as children.

18 xviii Notes on Contributors Natalia Vibla is a postdoctoral researcher at the Centre of Penal Theory and Penal Ethics at the Institute of Criminology, University of Cambridge. Her PhD thesis was on sentencing in multiple offence cases, and her postdoctoral research is on sentencing theory and practice. Paul Wiles has spent most of his career as an academic criminologist at various universities in the United Kingdom. From 1999 to 2010, he was chief scientific advisor at the Home Office and government chief social scientist. He has been an analytic advisor to the Sentencing Council since its inception.