Sentence THE SENTENCING GUIDELINES NEWSLETTER SEPTEMBER 2004 ISSUE 01

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1 the Sentencing Guidelines Council Sentence Sentencing Advisory Panel SEPTEMBER 2004 ISSUE 01 The late Lord Justice John Kay. WELCOME Welcome to the first in a series of newsletters keeping you informed about the work of the Sentencing Guidelines Council (the Council) and the Sentencing Advisory Panel (the Panel). This edition brings together important information about what the Council and the Panel are doing. It also records facts about the work of the prison and probation services that affects the sentences imposed by the court. For more information about the membership and work of the Council and Panel, see our website COUNCIL MEMBERSHIP The Council had to cope with the sudden death of John Kay on 2nd July. The Chairman made the following statement on 5th July: On Friday night Lord Justice John Kay died. This is a grievous loss to the whole of the justice system. He was quite outstanding in the contribution he has made and it is tragic that at the age of 60 we should lose him. As I am sure you are aware, he took silk in 1984 and, as everybody expected, in due course he became a judge in He had all the qualities that were required of a High Court judge to the full. He was highly intelligent, he had a huge amount of common sense, and he had an ability to relate to people which was quite remarkable. In 2000, to no one s surprise, he became a Lord Justice. Since that time he has taken on huge burdens to assist the justice system and he carried them out with outstanding ability. He was Chairman of the Criminal Justice Consultative Council; he was on the National Criminal Justice Board. He was the Deputy Chairman of the new Criminal Procedure Rule Committee. I can speak particularly of his contribution to that Criminal Procedure Rule Committee because I am the Chairman. He has given that committee the basic structure it needs to be in the forefront of bringing about a change of culture in the criminal justice system which is sorely needed. We have lost someone who has been, and could have continued to be, one of the most distinguished figures in the criminal justice field. Of course, our loss and it is a very great loss does not compare with the loss of his family, and I know the whole of the judiciary, and indeed everyone who is engaged in the justice system, will want to send their sympathy and condolences to Lady Kay and their children. It was not only in the field of justice that he made a real contribution; it was also in the field of sport and, in particular, that of rugby. We all took vicarious pride, as he took immense pride, in the fact that his son was able to make such a significant contribution to our World Cup rugby team which was so successful last year. I am delighted that John and his wife had the opportunity of going to Australia and seeing that success. He took great pride from his son s contribution to that achievement. Lord Justice Paul Kennedy has been appointed to the Council to fill the place created by the death of John Kay. He is an experienced member of the Court of Appeal (having been appointed in 1992) with a wealth of expertise in crime.

2 COUNCIL NEWS PROGRESS TO DATE The Council has worked hard in its first six months, meeting four times, starting work on issues of general principle, setting up a system to help understanding of what influences sentences, considering four sets of Advice from the Panel and producing two draft guidelines. In September, the Council will publish those draft guidelines one on the new sentences shortly becoming available (and we have been working closely with the Judicial Studies Board to make sure these are ready for use in the training that is being prepared) and the other on the reduction in sentence given to those who plead guilty. Courts always want the sentence imposed to be effective. Sentences are effective in different ways but many depend heavily on the prison service and the probation service, soon to become the National Offender Management Service. To ensure that the sentence passed by the court is the sentence served, the Council needs to know what resources are available and how they are being used. The Council supports amendments to the Criminal Justice Act, making it clear that it can take account of prison and probation service capacity when considering setting a guideline. Following the Government s response to the Carter report, the Council has a key role in helping to ensure that court decisions are implemented effectively. OUTSIDE EXPERTISE At the end of July, the Council brought together a small group with substantial experience of what has happened in some American Lord Justice Paul Kennedy new Council member jurisdictions where guidelines have been largely successful in improving sentencing consistency and some where they have not been particularly successful. Other seminars have brought together practitioners to stimulate discussion and further thought. The Council intends to make full use of academic expertise and experience in other jurisdictions as it develops its role. Notes of these seminars are on our website: ABOVE: Back row, left to right: Kevin McCormac (Secretariat), Mr Justice Crane, Martin Narey, Judge Peter Beaumont, DPP Ken Macdonald, Judge Michael Mettyear, Judge Tim Workman, Anthony Edwards, Cheryl-Ann Saldanha (Secretariat), Martin Wasik. Front row, left to right: the late Lord Justice Kay, Malathy Sitaram JP, Lord Justice Rose, The Lord Chief Justice Lord Woolf, Chief Constable Peter Neyroud, Teresa Reynolds.

3 PANEL NEWS ABOVE LEFT: Back row, left to right: Michael Morgan, Howard Riddle, Christopher Woolley, Lesley Dix (Secretary), John Staples, Andrew Ashworth, David Mallen. Front row, left to right: Anne Fuller, Joan Webster, Martin Wasik, Heather Harker, Lord Chan Panel members not available for the photograph: Rhys Davies, Frances Heidensohn and Peter Jones. UPDATE Knowing that the Council wants to introduce guidelines ahead of new sentences and as soon as possible after new offences start to come before the Courts the Panel produced a major discussion paper on the new sentences likely to come into force over the next few months and ran a series of A seminar group hard at work. seminars to develop the issues covered. Advice went to the Council in July and guidelines should be available in time for planned training for the judiciary and practitioners. The Panel has also been working extensively on the Sexual Offences Act Consultation is now closed on two papers. THE SENTENCING ADVISORY PANEL The Council benefits greatly from the work of the panel, which has been operating since The Panel s chairman attends every Council meeting and Council member HH Judge Michael Mettyear was a founding member of the Panel. The authority and quality of the work of the Panel is now well established and widely recognised. The Panel has advised the Council on robbery; on the impact of the increase in the maximum sentence for causing death by dangerous driving; and on the reduction for a guilty plea. It has issued a consultation paper on sentencing for the offence of manslaughter following a charge of murder, and the successful plea of the partial defence of provocation, and is now reviewing the responses. In July it published a paper on domestic violence. MEMBERSHIP Howard Riddle has recently been appointed to the Panel, bringing wide experience of magistrates and youth court proceedings. He has been a District Judge (Magistrates Courts) since 1995 following a two-year term as assistant Metropolitan Stipendiary Magistrate. MEMBERS WANTED The Panel will be looking for new members when its term of office ends mid Some will be continuing but there will be an opportunity to apply for membership of this important body. Watch for advertisements later this year.

4 Guidelines have been around a long time. For many years the Court of Appeal has given guideline judgments while the Magistrates Association has co-ordinated, published and promoted the Magistrates Courts Sentencing Guidelines. These have been well used and have provided a sound basis for improving consistency. OVER THE PAST TEN YEARS, THE DEMANDS ON BOTH THE PRISON AND PROBATION SERVICES HAVE OUTSTRIPPED CAPACITY PRODUCING GUIDELINES The creation of the Council as an independent, expert body provides a new opportunity, a constructive approach to the creation of guidelines that: enables many more to contribute involves both Parliament and Ministers at draft guideline stage enables thorough research to be commissioned enables the development of guidelines to be based on extensive research. A flow chart showing the process of creating a guideline is available from the secretariat. The Council knows that it can be difficult to find guidance relevant to sentencing in a particular case, especially for cases heard in the Crown Court. It will shortly publish a compendium of existing guidelines to help courts and practitioners. EFFECTIVE SENTENCING When is an offence of assault more or less serious than an offence of theft? And what makes one assault more or less serious than another? The creation of the Council is a chance to look at sentencing issues such as these much more broadly than might have been possible in the past. There has, for example, to be a clearer understanding about what sentencing is trying to achieve in different circumstances. There also needs to be much clearer information about which sentences are effective in what circumstances. When we say effectiveness do we mean in terms of protection of the public, or punishment, or effective reparation, or the prevention of re-offending? And how can effectiveness be measured? Having established the principles and priorities of sentencing, the Council will want to ensure that the resources available deliver effective sentences. Over the past ten years, the demands on both the prison and probation services have outstripped capacity despite the significant additional investment (set out on page 5). Figures show that the number of offenders being convicted has stayed broadly constant. But this pressure on the services makes sentences imposed by the court less effective and undermines the confidence of sentencers and the public. The Carter report (Chapter 7) emphasised the role of the Council in producing guidelines promoting consistent and effective use of the resources available for delivering sentences. Government decides how best to spend public money and, in that context, decisions have to be made on the level of resources for correctional services. Part of the Council s role is to take these issues into account when developing guidelines, helping to ensure the quality of choice of sentence and that sentences are properly implemented. Another part of the role is to gather evidence about the effectiveness of sentences. This will enable better decisions to be made about the future capacity of the National Offender Management Service, the body responsible for offenders made subject to both custodial and community sentences, and youth justice services. The Council is acutely aware of the concerns of many Judges and magistrates about the resources available, particularly to the probation service. This is reflected in difficulties in some parts of the country in getting a pre-sentence report within the time given and in maintaining effective work under orders of the Court. The Council welcomes the priority that is being given to resolving these concerns. The Council recognises that one of the effects of the number of people being sent to prison exceeding prison capacity is that executive measures are used to release prisoners earlier than the period set by the Court. That is why the Council welcomes its pivotal role in achieving a better balance in the system, in using resouces in the best way possible and in helping to make the case for future resources to deliver effective sentences. As a first step, the Council commissioned the chief executive of the National Offender Management Service (NOMS), Martin Narey, to pull together information on current demands and resources, and future projections. This information is summarised over the page. The Council is also planning to respond to requests for better information about sentencing patterns across the country, to inform discussions at a local level. See next issue for a summary of work commissioned by the Council into this area.

5 HOW SENTENCING PATTERNS HAVE CHANGED OVER THE PAST TEN YEARS Since 1993, the use of both imprisonment and community sentences has increased dramatically yet the number of offenders being convicted has remained broadly the same. The greatest increase in the use of custody was between 1993 and 1996; the use of community sentences has increased steadily from Current trends are generally either stable or slightly downwards for use of custody, sentence length and use of community sentences except in the Crown Court, where use of community sentences is increasing. If we were able to return to custody rates and sentence lengths of recent years, it would provide the opportunity for the time served by an offender to be as the court intended. THE KEY FACTS ARE: SPENDING IS UP In the last 10 years, spending on the prison service has increased, in real terms, by 24% ( 467 million) and on the probation service by 50% ( 248 million) a further 6% increase in prison service resources is planned for 2005/06. Over the same time period, prison capacity has risen by nearly 50%. BUT NOT IN LINE WITH NUMBERS IN CUSTODY Prisoner numbers, however, have increased by nearly 60%. Between 1992 and 2002, the number aged 18 and over sentenced for indictable offences in magistrates courts rose 5% to 217,287 while the custody rate for this group more than tripled (from 5% to 16%). The average sentence length fell from 2.8 months to 2.5 months, probably because more people are going to prison for less serious offences. The number of over-18s sentenced for indictable offences in the Crown Court dropped from 77,097 to 69,127 in the ten years to 2002, while the custody rate increased from 45% to 63%. Average sentence length increased from 19.8 months to 26.5 months. WHERE THE BIGGEST INCREASES ARE The greatest increase in the sentenced prison population for all offenders has been for those sentenced to four or more years (83%), but there is also a substantial increase (around 50%) in shorter sentences. There have also been big increases in the numbers remanded in custody by

6 Joanne Savage Secretary to the Council. magistrates courts (up 71% from 1992 to 2002) and in those committed in custody for trial (up 28%). The number of pre-sentence and specific sentence reports for adult offenders rose from 195,289 in 1992 to 252,673 in 2002 (29%). NO PREVIOUS Offenders with no previous convictions for standard list offences account for a large part of the increase in use of both custody and community sentences since 1996 (47% and 63% of the increase respectively). The proportion of people with no previous convictions made subject to community sentences rose between 1991 and 2001 for community rehabilitation orders from 11% to 27%, for community punishment orders from 14% to 51%. SUPERVISION STATS The number of people starting supervision on community sentences has increased 42% from 90,034 in 1992 to 127,548 in Meanwhile the number of people under supervision from the Probation service at any one time increased 41% from 136,612 in 1992 to 192,856 in Substantial extra resources have been made available to prisons for education, healthcare, drugs, offending behaviour and resettlement. However, the increase in the number of people in prison and the effects of having to move prisoners more often than is desirable means that it becomes increasingly difficult to deliver those programmes in the way that will most likely reduce re-offending. WHAT NEXT? No-one who passes sentence resorts to custody unless absolutely necessary. The Court of Appeal has regularly emphasised this and also that, when custody is inevitable, it must be for the shortest possible time. Sentencing does not take place in a vacuum. It is influenced by many factors and it s part of the skill of sentencing to balance the many conflicting issues to produce a sentence that is just and fair. Today s judiciary are more carefully selected and better trained than they have ever been. However, sentencing has changed dramatically in the past ten years, with major consequences. We need to understand better both why that has happened and what it means for sentencing in the future. We also need to know more about the process of sentencing and the effect of sentences. The wider public must understand what sentencing can (and cannot) be expected to achieve. The Council is actively promoting research into different areas and will be taking a lead in developing understanding more information will be published as it becomes available. YOUR COMMENTS To share your thoughts and reactions to any of the issues covered in this issue, if you have views on the role and priorities of the Council or Panel, or if there s anything you d like to see covered next time, please contact: Kevin McCormac Head of Sentencing Guidelines Secretariat, Room G11, Allington Towers, 19 Allington Street, London SW1E 5EB Telephone: Or info@sentencing-guidelines.gsi.gov.uk This newsletter is published in hard copy and electronic form and is also published on our website. When we publish newsletters, would you prefer to receive notification by that is now on our website rather than getting a copy direct? If so, please let us know and provide the address. If you have access to Felix, you can find an electronic copy of this newsletter in the Sentguidelines conference.