Sentencing and Criminal Justice - Conclusions

CHAPTER 13
Conclusions
The purpose of this chapter is to draw together various themes emerging from
the topics examined in the 12 substantive chapters, and to offer some concluding
reflections. The chapter begins by returning to a fundamental issue, that of the
role sentencing should be expected to fulfil in criminal justice. It then looks at the
more positive aspects of the new sentencing framework introduced by the Criminal
Justice Act 2003, and at their prospects in practice. This links to the third issue –
the new sentencing guideline mechanism and its ability to ensure that the new
sentencing framework is translated faithfully into practice. The fourth part of the
chapter looks at less constructive aspects of the new sentencing framework, notably
its reliance on the rhetoric of protection, its use of the concept of risk and the
proliferation of preventive orders in sentencing. The fifth part reassesses the place
of proportionality in the new system and the impact of the framework on issues of
social justice. The chapter concludes with some reflections on political courage and
the need for leadership on criminal justicepolicy in general and sentencing policy
in particular.
13.1 The responsibility of sentencing
There is no doubt that the task of sentencing imposes a great burden on magistrates
and judges, and that many of them say that it is the hardest and most disturbing of
judicial tasks. In view of the momentous consequences it may have for offenders, in
termsofdeprivations or restrictions on liberty, that is as it should be. In the present
context, however, a more significant question is what sentencers and sentencing
should be held responsible for.Discussions of criminal justice sometimes appear
to assume that sentencers are responsible for crime rates in society, or for the
subsequent conductof offenders, and these are the issues that need to be confronted.
As argued in Chapter 1.4 and in various other places, the very concept of ‘the
crime rate’ is a difficult one. Recorded crime has been measured for years, but it is
well known that it does not measure the total number of crimes committed. The
British Crime Survey comes closer to this (although it leaves out crimes against and
by companies, crimes without direct victims, and some other offences), and it is the

most complete measurement available. It has shown a downward trend in overall
380
13.1 The responsibility of sentencing 381
crime rates in recent years, but there are few policy-makers, politicians or members
of the public who appear to accept this, let alone to use it as a basis for policy.
Adecline in the crime rate may be influenced by other factors, such as a decline
in the number of young people in society (stemming from a decline in the birth
rate at some time past) and that is true of the last few years. Other social factors,
such as the ready availability of a new and stealable expensive consumer product
(notably mobile phones in recent years) may have an influence on the crime rate,
as may crime prevention measures that reduce the susceptibility to theft of major
items (such as manufacturers’ improvements in the security systems of cars). The
willingness of victims to report certain crimes (serious sexual offences, ‘domestic’
violence) may increase, as a result of initiatives within criminal justice.
This list of possible influences on the crime rate could be expanded, but the
fundamental point remains the same and was made in Chapter 1.4 above. Such
alow proportion of crimes are reported to the police and recorded by the police,
and such a low proportion of those are detected (fewer than a quarter), that the
criminal justice system makes a formal response to only around 3 per cent of offences
committed in any one year. Of those about a third (or 1 per cent) receive a caution,
reprimand or warning. This means that the courts sentence only around 2 per cent
of offenders. The idea that sentencing policy in respect of this 2 per cent – which is
admittedly higher in some categories such as serious violence (10 per cent) but not
so as to weaken the argument here – can have a significant effect on the overall crime
rate is difficult to sustain. There is a whole range of broader social trends and changes
that have an impact on offending rates: one of them, mentioned at various stages in
this book and highlighted in the report Rethinking Crime and Punishment,
1
is the link
between drug-taking and crime. Thus the simple notion that increasing sentences

will have a kind of hydraulic effect in reducing criminality is unsustainable. As
we saw in Chapter 3.3 above, the evidence on deterrence and incapacitation does
not bear this out.
2
Some judges seem either to be unaware of this or to doubt it,
since general deterrent rhetoric remains common when justifying sentences.
3
Some
politicians, especially ministers, must be well aware of the evidence, since there is
ample support for it in Home Office-conducted or -commissioned research. But
by setting over-ambitious targets for sentencing and by subscribing to a notion of
‘public confidence’ that too readily dissolves into beliefs about sentence severity
(and may be influenced by media representations anyway), the government goes
against the evidence that it possesses.
4
On this first issue, then, the conclusion is that too much should not be expected
of sentencing. It should aim to be fair and proportionate, and any exceptions to
this aim call for strong and evidence-based justification. Sentencing is a form of
1Rethinking Crime and Punishment (2004), ch. 7. See also Coulsfield (2004), ch. 6.
2 See further the brief but penetrating analysis by Bottoms (2004), pp. 60–72.
3 See ch. 4.4 above; Tonry (2004), pp. 110–12; and Attuh-Benson [2005] Crim LR 243.
4For the fragile relationships between public opinion and public assessments of the sentencing
system, see Hough and Roberts (1998) and Hough et al. (2003).
382 Conclusions
public censure, and the sentences imposed should convey the relative degree of
censure for the particular offence(s). Sentencing is but a small part of criminal
justice policy, and it is wrong to treat it as a primary form of crime prevention: there
are several other kinds of initiative that have a greater crime-preventive potential
than modifications of sentencing levels, although it is of course necessary to have in
existence a sentencing system that operates so as to exert an overall or underlying

preventive effect.
13.2 The new penal ladder
The concept of a penal ladder has two applications in sentencing. Its fundamental
meaning is to describe the hierarchy of sentencing options, from the least restrictive
(or that with the lowest punitive weight) to the most restrictive or onerous sanction.
It is also used, however, to describe how some sentencers apply those options in
the ‘typical’ case of an offender who commits a further offence following an earlier
conviction and sentence, the tendency being to select a sentence on a higher ‘rung’
of the penal ladder on the premise that the previous sentence (on a lower rung) did
not ‘work’. More will be said about the approach to sentencing persistent offenders
in parts 13.4 and 13.5 below, and the primary concern here is with the hierarchy of
sentences and how they are intended to operate in the new sentencing framework.
In Chapters 9 and 10 above there was much discussion of the custody threshold,
and how the various new forms of sentence might fit together. But possibly a more
important starting point is the fine. In Chapter 7.5 and in Chapter 10.5 above we
noted that the use of the fine has declined spectacularly in the last thirty years,
and indeed that the changes in sentencing in the last decade have been affected by
courts’ apparent lack of confidence in the use of the fine. The aim of increasing the
use of community sentences has been achieved, but this has not been successful in
the sense that it has not diminished the use of custody – it appears that the increase
in community sentences has been at the expense of fines and discharges, with the
result that there has been a general raising of the severity of penal interventions.
If this movement is to be reversed – and the government accepts that it should be
reversed – then the fine must be regenerated and revitalized as a penal measure. This
book has argued strongly in favour of the day fine system in successive editions,
and in the last few years there has been greater interest in revisiting a system of
this kind. It has grave dangers, of course, because when a version of day fines was
tried in the early 1990s some sections of the media misrepresented it. The result of
the ensuing furore was its abolition, and the result of its abolition was that poorer
people were again fined more. That leads to problems of collection and problems

of default. Considerable effort has been put into improving the collection of fines
in recent years, and there is acceptance that part of the problem is the imposition of
unduly onerous fines in the first place. So, bearing in mind these pitfalls, it is now
imperative that the government both introduces a form of day fine system without
delay and ensures that it is properly explained to everyone – to the extent that when
13.2 The new penal ladder 383
certain sections of the press attack it for ‘inconsistency’ (i.e. for fining rich people
more than poor people, which is the whole purpose of the system), ministers are
prepared to defend it in public, to explain the principle of equal impact, and to
weather any negative publicity.
If the fine becomes accepted as a viable option in some cases of moderate serious-
ness, this may begin the processof ‘unsilting’ the resources of the National Probation
Service by relieving it of the need to provide community sentences for offenders
who are not really serious enough to warrant them. The next step is to ensure that
community sentences are given to offenders of moderate seriousness, and that the
community sentence is not regarded as a single ‘rung’ on the penal ladder. The dan-
ger, in other words, is that courts may take the view that if a community sentence
has been tried and failed, another community sentence should not be imposed for
a further offence of moderate seriousness. We saw in Chapter 10.6 that attempts
have been made in the definitive guidelines to ensure that this view is not taken, and
that the range of requirements that may be made as part of a community sentence
is used constructively and not just once for each offender.
5
There are other dangers,
too, such as the imposition of too many requirements in an individual case to the
extent that an offender – particularly one with a disorganized lifestyle or other per-
sonal problems – is ‘set up to fail’. The role of NOMS and the National Probation
Service, in preparing sensitive pre-sentence reports and in ensuring that there is
asufficient range of relevant programmes available in each area, is no less crucial
than that of the courts in ensuring that the guidelines are properly followed, that

the statutory threshold for a community sentence is treated as meaningful (which
appears not to have been the case in recent years), and that breaches are dealt with
in context and proportionately. NOMS and the National Probation Service must
also continue to strive to improve the effectiveness of the programmes they offer,
without succumbing to the temptation to make excessive claims about their results.
The next statutory threshold is also critical to the application of the new sen-
tencing framework. Again, there is little evidence that in recent years courts have
taken a proper view (or indeed any view) of the requirement to impose custody
only if the offence is too serious for a fine or a community sentence. It would not be
appropriate here simply to repeat the warnings collected in Chapter 10.7.4 above
under the provocative heading, ‘101 malfunctions’. But we must recall that the new
framework – with custody plus, suspended sentences and intermittent custody all
clustered around the custody threshold – will require careful handling in both the
magistrates’ courts and the Crown Court. The guidelines set out the principles,
but at the point of application there will beaconsiderable degree of judgment to
be exercised on whether the custody threshold has been passed and whether there
are sufficient reasons to take the case back down to a community sentence or a
suspended sentence or (in a small number of cases) to intermittent custody. The
success of these sentences will depend considerably on how NOMS and the National
5 See SGC, NewSentences: Criminal Justice Act 2003 (2004), discussed in ch. 10.6 above.
384 Conclusions
Probation Service carry out their ‘parts of the bargain’, as it were, in terms of pro-
viding relevant and persuasive pre-sentence reports, in sustaining a sufficient range
of programmes in each area, and in ensuring that any requirements imposed are
duly supervised. But it will be court decisions that make or break the bold initiatives
taken by the government in creating this part of the new framework.
13.3 Delivering change: the guideline system
Previous editions of this book have argued strongly in favour of the creation of a sys-
temofsentencing guidelines, tailored to English requirements, for several reasons –
particularly for improving consistency in the delivery of sentencing policy and

broadening the range of professionals having an input into sentencing guidance.
As we saw inChapters 1 and 2, the Sentencing Advisory Panel began work in 1999
and it proposed guidelines to the Court of Appeal for five years until 2004. The
Panel’s method of working involves wide consultation among interested organiza-
tions, considers the opinions of members of the public (there are three lay persons
on the Panel too) and takes several months to come to fruition. The process then
changed, as a result of the Criminal Justice Act 2003, with the introduction of the
Sentencing Guidelines Council. The Council now issues its definitive guidelines. It
is a cumbersome system, and all the arguments about consulting Parliament, and
not leaving a purely judicial body to issue the guidelines, could equally have been
met by adapting the Sentencing Advisory Panel rather than creating an extra tier.
However, that is the mechanism we now have: will it work?
Michael Tonry has argued that the new system is flawed because it ignores the
lessons of other guideline systems that have been operating for up to 25 years.
6
In particular, a body with a judicial majority and a judicial chair is said to be too
conservative to make the kind of changes that are needed if the idea of guidelines is to
be taken seriously – for example, reassessing relativities between offences, reviewing
the evidence on the effectiveness of prisons and non-custodial options and then
acting on the results. One reply is that the English system required a tailor-made
solution and was and is not ready for the kind of radical change advocated by Tonry.
The system has long had guidelines, in the form of Court of Appeal judgments, and
the new system can be seen as a further evolutionary step rather than a revolution.
Judges and magistrates will resist the changes if they do not consider that they
have some ‘ownership’ of them. The kinds of deviant behaviour seen among some
US judges, sometimes (as in the case of the federal system) resulting in greater
compulsion and rigidity in the guidelines, could become much more common in
this country if there was substantial alienation from the approaches adopted in
the guidelines. It remains an open question whether the government was right
in the model it chose. The early days of the Sentencing Guidelines Council have

been directed by a sympathetic and knowledgeable Lord Chief Justice, although not
6Among several writings, see most recently Tonry (2004), ch. 5.