Published just days before the findings of the government review on the issue are expected to be announced, the report calls on ministers to press ahead with plans to implement one of the main recommendations of last year’s Carter review on prisons and establish a sentencing commission in the law reform, victims and witnesses bill in the next parliamentary session.

By the end of June 2008 the prison population had exceeded 83,000 for the first time and there were less than 100 spare prison places in the entire prison system in England and Wales. According to the Ministry of Justice, approximately 70% of the increase in demand for prison places between 1995 and 2005 arose due to changes in sentencing practice, increased use of custody and longer sentences.

The report authors found that although a more structured and mandatory set of sentencing guidelines, based on the sentencing grids used in some US states, would rapidly yield greater predictability and uniformity in sentencing practice, this approach has many disadvantages:

• Sentencing grids only take into account the offence and previous convictions in determining the sentence, excluding many important  factors currently taken into account by the courts.
• Sentencing grids would force sentencers to impose similar sentences in dissimilar cases.
• Sentencing grids would lead to more plea-bargaining.
• Sentencing grids would be unpalatable to sentencers and other criminal justice professionals.

Instead the report recommends an approach building on the work of the current Sentencing Guidelines Council that would offer sentencers clearer and simpler guidance that would structure – rather than fetter – judicial discretion. 

The report recommends the establishment of a sentencing commission serving three main functions:

1.      Providing guidance to sentencers;

2.      Gathering and providing information and statistics for monitoring, planning and policy development; and

3.      Community engagement – to inform and consult with the public.

In the international context, the only jurisdiction currently planning a commission that performs all three functions is New Zealand.

The new sentence of imprisonment for public protection (IPP) introduced by the Criminal Justice Act (2003) should act as a warning of the unintended consequences of ill-considered, badly drafted legislation. Over 4,000 people are now serving this sentence with more than 600 already held beyond their tariff. A sentencing commission could avert such disasters by providing an ‘impact assessment’ of new laws to improve policy-making and helping the government better plan its use of criminal justice resources. 

The report stresses that people are very often misinformed about sentencing practice and believe the courts are much more lenient than they are in reality. The report calls for a sentencing commission that is a source of authoritative, trusted and accessible information about sentencing to correct public misconceptions and create a more constructive climate of debate about crime and punishment.

Professor Mike Hough, director of the Institute for Criminal Policy Research, King’s College London, said:

A well-resourced, unitary sentencing commission should be set up to replace the Sentencing Advisory Panel and the Sentencing Guidelines Council. It should build on the good work of the Council. But it should also have an explicit function of engaging with the public, and explaining the realities of current sentencing practice. In this way it could help reduce the politicisation of sentencing policy and practice, by acting as an institutional buffer between the political process and penal practice.

Juliet Lyon, director of the Prison Reform Trust, said:

It’s time to take the political sting out and introduce some sense into sentencing policy. A thoughtfully constructed sentencing commission could be an authoritative source of trusted information for politicians, sentencers and the public alike.
 
In his foreword to the report, former home secretary and president of the Prison Reform Trust Lord Hurd of Westwell said:

This review is free of the constraints inevitably imposed by the terms of reference for Lord Gage's review. It provides an authoritative, evidence based examination of the various models of sentencing commissions that exist around the world. It recommends a model that makes sense in our constitutional framework.

The authors have been careful to steer away from measures that might restrict judicial independence and towards an approach that would lead to greater consistency in sentencing, better assessment of the resource implications of policy proposals and clearer information for the public.