Lord Leveson: the Sentencing Council 18 months on

Minutes of the All-Party Penal Affairs Parliamentary Group, held on
22 November 2011 at 5.00 pm in Committee Room 6, House of Commons

The Sentencing Council: 18 months on

Speaker:  The Right Honourable Lord Justice Leveson
Chairman of the Sentencing Council


    
Lord Ramsbotham opened the meeting on behalf of Lord Corbett, who was unwell and had sent his apologies. He was sure the meeting would send Lord Corbett its very best wishes for a speedy return to good health. He noted that there were three further meetings planned, all to be held in that room: on 24 January 2012 there would be a presentation on the multi-faith prison chaplaincy and the community chaplaincy; and on 6 March 2012 Professor Alison Liebling would be coming to talk about public and private sector prisons. He drew members’ attention to Professor Liebling’s recent report on prisoner-staff relations, a follow-up to her previous work in Whitemoor in 1998. Then on 24 April there would be a meeting entitled ‘Working in Prison’, with Eoin McLennan-Murray of the Prison Governors Association and PJ McParlin, National Chairman of the POA. Alun Michael MP requested that they also be invited to give their views on the report of the Justice Committee on the role of the prison officer.

Lord Ramsbotham then introduced Lord Justice Leveson, who would be speaking in his role as Chairman of the Sentencing Council. He noted the appreciation of the meeting, since Lord Leveson had cancelled many other speaking engagements in the light of his current involvement with the inquiry into the culture, practice and ethics of the press. He further noted that it would be inappropriate to ask any questions about that inquiry at this meeting.
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Lord Justice Leveson began:

Thank you very much for inviting me to speak to you today.  Although I withdrew from almost all speaking commitments as a result of the new responsibilities that I have been given, the importance of this group and the concerns that I have in relation to criminal justice in general and sentencing in particular caused me to decide that I would stay with this one: I hope that you feel that the result is worth it.

When the Lord Chief Justice asked if I would accept appointment as the Chairman of the Sentencing Council, I said that I would do so enthusiastically.   I expressed myself in that way because I believed that the Sentencing Council, which has a wider remit than the structures that came before it, had a significant opportunity to contribute both to the law and practice of sentencing and also to the wider public understanding of issues of sentencing.

Eighteen months on from the creation of the Council, notwithstanding my other duties, I remain just as enthusiastic about the Council’s contribution to the criminal justice system.  What grounds do I have for such enthusiasm?

I would suggest that you need look no further than the Council’s first annual report for 2010/11 which we published last month.  The Council had an extremely busy and productive first 18 months and shows no sign of slowing down.  From draft guidelines and consultation exercises, to issuing definitive guidelines for use by the courts; from launching the Crown Court Sentencing Survey, to running a sentencing competition for students; the Council has achieved many milestones across the wide remit of its work.  And it is this very breadth of the Council’s work which so encourages me and maintains my enthusiasm about the Council’s future.

Let me begin by clarifying the Council’s remit and its role within the criminal justice system for those of you who do not know.  The Council has three principal aims which are: firstly, to promote a clear, fair and consistent approach to sentencing by developing new sentencing guidelines; secondly, to produce analysis and research on sentencing including assessing the impact of guidelines on sentencing practice; and, thirdly, to work to improve public confidence in sentencing by promoting awareness and understanding of sentencing and considering the impact of sentencing decisions on victims.

I want to take you through the Council’s achievements across all three of those aims but in particular I want to focus today on the last of them – improving public confidence in sentencing.  This is perhaps the Council’s biggest challenge as it is often a matter of changing often firmly held views about the way in which criminal justice operates.  It is one thing to draft and publish a piece of work, confident in the belief that the courts will duly accept and implement it, following, as they must, the law.  It is quite another to alter the understanding and the mind-set of the general public through the same piece of work.  However, I am determined to make a difference and the whole Council shares this ambition.

First, let me just set out how the Council has gone about promoting a clear, fair and consistent approach to sentencing.  The Council has already developed and promulgated two sets of definitive guidelines: for assault, and for burglary.  The assault guideline, which was the first to be developed by the Council, came into use on 13 June and has been well received by sentencers.  The definitive burglary guideline will be in use with effect from 16 January next year.

These guidelines have adopted a new step-by-step approach which the Council believes is easier for judges and magistrates to apply, and easier for the public, including victims and witnesses, to follow.  Each guideline includes individually tailored processes for each different type of offence meaning that they are all self-contained and comprehensive – no need to refer back and forth to other parts of the guideline or indeed other documents altogether.  This sounds sensible but is in fact quite a departure from the existing Crown Court sentencing guidelines. Those guidelines generally consisted of a substantial text and then a series of boxes, and the problem we found in court was very frequently that counsel would refer to the boxes without necessarily going back to the underlying text.

In both of these guidelines that we have now issued, the Council has returned to first principles of sentencing and opted to focus attention on the two key determinants of seriousness as defined in statute  by the Criminal Justice Act 2003, namely harm and culpability.  Weighting these two determinants equally in order to reach a specific category of offence within the guidelines represents a different approach from previous guidelines which focussed more on scenarios which judges found restrictive and resulted in offences being effectively shoe-horned into the scenario most closely resembling the case in hand.  The Council’s approach allows for a clear structure which can be broadly replicated for all offences.  Of course, we aren’t wedded to an exact and limiting structure – some guidelines will require slightly different structures, but the principles will remain the same which is important in encouraging a consistent approach by sentencers, and to promote better understanding by anyone who wants to look at the sentencing guidelines.

The Council has also consulted on a further two draft guidelines.  In March of this year, we launched a consultation on a draft guideline for drug offences.  Unlike assault and burglary which replace previous guidelines issued by the Sentencing Guidelines Council, there is no current guideline for courts to use when sentencing drug offences. That may be because some very distinguished judges, as long ago as the early 1970s and beyond, fashioned guidelines and some authorities for the most serious types of offences. A large number of responses to the consultation, together with substantial research conducted with judges across the country, on the likely effects of the guideline, have given us a great deal to consider in the preparation of the definitive guideline and we are soon to complete our work in this area. It has been an iterative process. We consulted extremely widely, as I shall explain, but also have conducted other events to test out potential solutions with groups of judges against common sentencing exercises.

The most recent consultation exercise which we have launched is for a set of overarching guidelines rather than offence-specific guidelines.  The package containing guidelines for allocation of cases between the Magistrates Court and the Crown Court – critically important: when should the magistrates decide that a case is too serious for them to try but should be sent to the Crown Court?; the practice of taking offences into consideration, where an offender is prosecuted for one burglary, but then is prepared to admit having committed some others; and finally the approach to totality for multiple offences – in other words what should be the total sentence even if individual sentences taken together and added up would produce far too high an overall sentence.   This was launched in September and, in light of the subject matter, the consultation process on this occasion is aimed more at legal professionals than the general public. (I ought just to explain that when we consulted on the other guidelines, which I will come on to, it was a much wider consultation exercise among the public as well.) When the consultation period comes to an end next month (8 December) we will review all of the feedback and respond early next year.

The second of the Council’s aims which I want to touch upon is the production of analysis and research on sentencing issues.  The Council has a duty to assess the impact of guidelines on sentencing practice and one of the Council’s achievements of which I am most proud is the Crown Court Sentencing Survey which has been designed to allow us to fulfil that duty. In October 2010, we launched the survey nationwide in order to collect information about the way judges are sentencing, and what factors are influencing their sentencing decisions.

When we published our annual report last month, we also published a bulletin of the results from the first six months of the survey on our website, which you are very welcome to look at.  The bulletin sets out a number of results which one would expect such as a clear correlation between sentence length and the severity of the crime. The results confirm that the majority of sentencers are sentencing within the guideline range. We will be doing further work on the interaction between all of the factors collected on the survey forms in order to make further sense of the survey’s findings.  Also, the bulletin was written in a style aimed at helping to give the public a greater understanding of why offenders committing seemingly similar offences can get different sentence outcomes.

One thing which the bulletin only hints at is how the Council will use the information to fulfil our statutory obligation to monitor the frequency and extent to which courts depart from guidelines.  There is limited information in this bulletin because I took the decision that at least a year’s worth of data was required before we would have sufficiently robust information to present in relation to all offences.  However, you will see that the example which we give in the bulletin notes that, for the offence of assault occasioning actual bodily harm, 2½ per cent of sentences in the period 1 October 2010 to 31 March 2011 fell outside the guideline and this is about the level that I would expect. If you imagine sentences as falling within a bell curve, the guideline intends to capture the centre ground; the interests of justice will always throw up a very few cases that fall at the extremes – either they are unusually serious, or there are unusual mitigating features which certainly should permit a court to sentence outside the Council’s guidelines, in the interests of justice.  On the other hand, a significantly higher level of departure would suggest that there was a problem with the guideline which would need to be reviewed. I’m not making the assumption that I’m right. I  want to find out where the evidence leads us.

Apart from the Crown Court Sentencing Survey, the Council has also undertaken a number of social research projects in the past 18 months which have served to inform the development of each of the guidelines to date.  Various methodologies have been used: surveys, focus groups, one-to-one interviews.  Some of the work has been conducted by the Council’s own staff, for example the interviewing of drugs mules, which had been the subject of discussion in our drugs consultation paper. Other pieces of research have been undertaken by organisations such as Ipsos MORI, YouGov and the Institute for Criminal Policy Research.  These pieces of research have provided an evidence-based rationale for guideline development and the Council publishes research bulletins to accompany its draft guidelines, ensuring that everyone can benefit from the findings of the research conducted. Whatever we do, in this regard, we will make public.

Returning to the issue of improving public confidence: it is vital that the public understand what judges do in their name and why.  When I gave an interview to Radio 5 Live earlier this year, clips from “You Be the Judge” were used in the programme to provide examples of sentencing decisions. They were well received by those who later responded to the programme.  For those of you who have not heard me extolling the virtues of “You Be the Judge” before, it is an online resource which enables people to hear the facts of a case from both prosecution and defence, and reach their own sentence before the approach of a sentencing judge is then revealed and explained.  It is an excellent tool for giving members of the public a real insight into the three dimensional nature of sentencing rather than the often very one dimensional nature made out in the media reporting of crime.

The feedback from that interview I gave was very positive and the number of visitors to the “You Be the Judge” website increased as a result.  I would urge anyone dealing with members of the public who have concerns about current sentencing levels to encourage them to go online and use the examples on the website.  More often than not, those people who believe sentencing to be too lenient find themselves under-sentencing the judge in some of the cases provided.

And we have been doing our own work to engage the public – in July we invited members of the public to an event in Liverpool to meet members of the Council to discuss sentencing issues generally, and specifically the on-going consultation on burglary.  Around 200 people attended this event.  But we were able to reach even more people than this by linking the event to coverage in the Liverpool Echo which has a readership of over 85,000.  A number of hypothetical burglary sentencing scenarios were presented, with attendees asked to choose which sentence from four options they would give the burglar in each case. The aim, similarly to “You Be the Judge”, was to see how their sentences compared with those which would actually be passed. The results showed that the majority of sentences passed by those attending were either the same as or more lenient than the sentences judges would have passed.  I believe that events like this are really helping us to promote public understanding of sentencing. If the public understand what we are doing, they will have greater confidence in what we are doing, and if they have greater confidence, the clamour might be reduced.

We have also taken a very pro-active approach to communications more broadly and I believe that it is also yielding results.  Our consultations have reached much larger audiences than those of our predecessor bodies, resulting in significantly higher response rates. I’m not, I say immediately in the presence of the former chair of the Sentencing Guidelines Council, criticising what they did by way of consultation, but let me explain how we have done it. For our main guidelines – that’s assault, burglary, drugs – we’ve issued a professional consultation paper, aimed at lawyers, judges, academics, and Parliament, with a series of questions raised and problems posed. We’ve also issued a public consultation document, directed at those who do not have a particular knowledge or understanding of the criminal justice system.   And finally we have issued an online consultation for those who don’t want to see it on paper– there is a section of our website that encourages members of the public to provide us with their views. After I discussed this on radio there was, perhaps unsurprisingly, an enormous spike of interest, and responses received.  Making it easier for members of the public to respond to the consultations has meant that more than 500 people have accessed the online questionnaire for each of our offence-specific consultations to date.  Council members have given interviews to a broad range of media channels encouraging people to look at our website and complete the online questionnaires and I strongly believe that giving people a voice in these issues will give them more confidence in the end result which reflects their views. One of the things that has been commented upon frequently is that when the definitive guideline is published it is by no means the same as the one that we consulted on. So when we have demonstrated that we have indeed taken account of the issues that have been raised, we have received very positive comment upon it.  

The surveys undertaken as part of our research work, which I have touched upon already, are another way in which we are reaching out to a public audience and involving them in our work.  Feedback from those who have taken part in surveys or focus groups has also been very positive on the whole and the opportunity to discuss and contribute to sentencing policy for certain types of offences is welcomed by most participants.  It is very important that we continue to engage as wide an audience as possible through the development of our guidelines at each stage of their development.

Another area which I would like to take this opportunity to highlight to you is the Council’s relationship with Parliament.  The Council has a statutory requirement to consult with Parliament and I have given evidence to the Justice Select Committee as part of the Parliamentary scrutiny process on the assault, drugs and burglary guidelines.  I am due to give evidence to the Committee again on 13 December.  I regard the Committee’s scrutiny of our work, through the evidence sessions they hold and the reports which they produce, as a vital component of the work that we do.  While Parliament sets the sentencing framework including statutory maximum penalties, the Council then has the task of filling in the gaps.  Guidelines exist to provide structure to the penalties allowed by Parliament, not to undermine them.  Therefore, it is important that Parliament understands sentencing guidelines and we are always happy to consider new ways of interacting with Parliament as part of our work.

Earlier on, I asked what grounds I had for remaining enthusiastic about the Council’s contribution to the criminal justice system.  I believe that I’ve given you plenty of reasons but, of course, listing the Council’s achievements in its first 18 months is only one part of it.  Looking forward, the Council has a great deal of work yet to do.  There are a number of guidelines currently in development on which we look forward to consulting the public.  These include new guidelines across the range including sexual offences, environmental crime and dangerous dog offences which you may be surprised to hear was subject to a well-argued number of requests for guidance from magistrates and the police. And throughout its work, the Council needs to continue its efforts to improve public confidence in sentencing and will do so with the support of other key players, including many of you, who work tirelessly to promote confidence in the system.

I hope that I have been able to give you some idea of the Council’s aims, achievements and goals in the time I have had.  I would like to thank you for your attention and of course I am very happy to answer any questions which you may have.’