There is no such thing as a free breakfast. I am paying for mine by addressing you - you are paying by risking indigestion as a result of listening to what I have to say. I begin by expressing my appreciation of your association and its impressive work. It is important to maintain close links between the legal professions of our three countries. During his much too generous introduction, your President mentioned the extent to which my civil law reforms have influenced the development of procedure in Australia. I would argue that it was much more the case that what I learned during my visits to Australia and New Zealand had an enormous impact on my Access to Justice report. This goes some way to undo the harm between our countries that results from Australians always beating us at cricket, rugger, soccer, tennis... that is enough for this time of the morning. As you have heard, I am to talk about a 'New Approach to Sentencing' and, to avoid doing even more damage to Anglo-Australian relations, I will make clear at the outset that I am not proposing the return of transportation.
The father of criminology, Sir Leon Radzinowicz, wrote a book at the age of 92 in which he stated that, "no meaningful advance in penal matters can be achieved in contemporary democratic society so long as it remains a topic of political controversy instead of a matter of national concern." I suppose you have to reach that age to recognise what should be glowingly obvious.
Another of his remarks was that, "much good can be achieved in promoting progress and readjustments in the penal system, not so much by putting on the agenda of reform huge, ambitious schemes of "reconstruction" but by coming to grips with a series of much more limited and much more precisely defined topics in response to certain obvious, yet not adequately satisfied needs."
What I am going to say this morning will, I hope, reflect Sir Leon's wise comments. I also hope it has some relevance to my Australian colleagues. I recognise that, while England and Wales is a single jurisdiction, Australia has many, so there should be a chance of striking a chord.
The current position in the UK
There have been at least three recent reports relevant to sentencing in England and Wales, each of which makes extremely depressing reading [Endnote 1]. Each report describes a situation in which is quite apparent that our present sentencing policies are not working. They are failing to deliver what should be the primary role of the criminal justice system - the protection of the public.
Let me tell you some worrying facts about the position in the UK. There are, as I speak, over 73,000 prisoners within our prison system (an increase of approximately 30,000 in the past 10 years). The UK imprisons a larger proportion of its population than any other country in the European Union - 139 people in every 100,000 are in custody (I note that the equivalent figure for Australia is 116 and for New Zealand is 157). There is a particularly disturbing trend in the UK in relation to the female prison population which has risen by over 50% in less than three years.
The average cost of a prison place in the UK is £36,651 ($95,000) per year. Overcrowding is excessive, despite a building program (since 1995) which has cost £1.28 billion and has produced 12,000 extra places. Because the system is overcrowded, prisoners are once more being kept in police cells, the costs of which amount to no less than £300 per night (providing an interesting perspective on the cost of a Sydney hotel room).
Almost 3/5ths of all prisoners in England and Wales are re-convicted within two years of their release. For younger prisoners and those serving short prison sentences, the reconviction rates are even higher. The expense caused by re-offending by ex-prisoners is staggering. A re-offending ex-prisoner will, on average, be recorded as responsible for crime costing the criminal justice system £65,000. While a significant sum in itself, this cost is a fraction of the actual expense caused by re-offending since recorded crime accounts for only 1/4 to 1/10 of total crime.
75% of prisoners leave prison without a job, 30% leave prison homeless, 50% of prisoners have poor literacy skills, 65% have poor numeracy skills and are usually unemployable. Those re-convicted will have received a further three convictions within two years, 70% of prisoners are not released to education, training or employment.
These shortcomings are particularly unfortunate because there is now clear statistical evidence that, if prisoners have a home and a job to go to on their release, it is very much less likely that they will re-offend. It is also extremely depressing that these shortcomings should arise at a point in time at which the UK prison service has developed considerable skill in education, training and tackling offending behaviour in order to reduce the likelihood of a prisoner reoffending after release. Unfortunately, the combination of overcrowding, the lack of resources and an inability to release a prisoner back into the community with the necessary support, means that, all too often, either the education and training is not provided or, if it is, it is wasted because of lack of continuity.
The problem of overcrowding in prisons is a cancer eating at the ability of the prison service to deliver. It is exacerbated by a large number of prisoners who should not be there, the most significant group being those who are sentenced to less than 12 months imprisonment. It is now accepted on all sides that prisons can do nothing for prisoners who are sentenced to less than 12 months. In many of those cases, the prisoners could have been punished in the community. If prison was what was called for, the most appropriate sentence would be one of no longer than one month, to give the offender the experience of the "clang of the prison door".
What are we seeking to achieve?
The situation I have just described is simply unacceptable. The problems which confront us in dealing with offenders after they have pleaded guilty or have been convicted requires a fundamentally different approach. This does not mean we should depart from what are said to be the three objectives of a criminal justice system: (a) to punish, (b) to deter and (c) to rehabilitate. But the statistics I have quoted demonstrate that the criminal justice system in England and Wales is doing even worse than our cricket team in achieving its objectives. At best, the system goes some way towards assuring the public, and the victims of crime, that retribution has been meted out to the offender. This achieves little, if any, protection for the public.
I recognise that what I am about to say is capable of being labelled soft or liberal. In fact it is not soft, but realistic common sense. Whether it is liberal depends on what you mean by the term. The effectiveness of a criminal justice system has to be judged by the extent to which it can deter crime and reduce the pattern of further re-offending. These questions should be at the centre of the system. They should influence the decision as to whether to prosecute, the charges which are brought, what happens during the period that the offender is being punished and the provision made for the offender when released from punishment.
In what I have said so far you will observe my emphasis has not been primarily on punishment, but on deterrence and rehabilitation. That is not unintentional. I accept that punishment has an important role to play in sentencing, but I believe that we in England, and this may be true of most common law countries, attach too great an importance to punishment (which tends to be regarded as a synonym for imprisonment) and pay insufficient attention to the other objectives. Furthermore, we are overly concerned with satisfying the public's, and individual victim's, thirst for vengeance rather than seeking to reduce the number of victims.
Sometimes sentences are purely for deterrence - I am thinking, for example, of the offence of causing death by dangerous driving. Those who drive badly do not intend to kill or maim, but that can be the result of their conduct. There is usually little risk of the same offence being repeated. Furthermore, the offender is usually deeply and sincerely remorseful. Nonetheless, I have come to the conclusion that a prison sentence must be the norm in these cases, so as to deter others. I recognise that the families of the deceased find difficulty in distinguishing a dangerous driver who kills from a murderer. While we should not give effect to a wish for vengeance, we must take account of the feeling of the victim's family and not impose a sentence which they would regard as a travesty of justice.
Prison overcrowding - impact and causes
The fact that the situation in the UK is so unsatisfactory is surprising. We have, in relation to many areas of offending, identified constructive ways in which to tackle offending behaviour on the part of a substantial number of those convicted of criminal conduct. I have already referred to the positive effects of education, training and providing accommodation and employment on release. In addition, our probation service can today play a much greater role in assessing the risk of an offender reoffending. We also have a prison service that is capable, if given the opportunity, of not only warehousing prisoners but of sending them back into the community better equipped to avoid reoffending.
Part of what has gone wrong in our prison system is overcrowding. It is a central problem which makes progress virtually impossible. If the number of prisoners that the courts are sending to prison is in excess of the number that the prisons can both accommodate and deal with constructively, then you have only three choices. (1) You build more prisons to accommodate the number of prisoners being sent to prison, or (2) you reduce the number of prisoners being sent to prison (or you both build more prisons and reduce the number of prisoners) or (3) you continue to send more prisoners to prison than the prisons can accommodate and accept the consequences. There is, I suggest, no further option.
On the judges' behalf, I am prepared to accept some of the blame for increases in the prison population. (You cannot say I'm not objective!). Judges on occasion impose imprisonment when they should not have done so and impose higher sentences then they should. However, there are relatively few cases where the sentences imposed are higher than the going rate (the going rate being the sentence which is appropriate for the criminal conduct of the particular offender). If it is the going rate that is the problem, why do the judges not reduce the going rate? In order to answer that question it is necessary to understand how the present going rate has become increasingly punitive over recent years.
There is a continuous upward pressure, and very rarely any downward pressure, on the level of sentences. The upward pressure comes from public opinion and the media, the government of the day and Parliament. I suspect that when, usually in response to a sensational crime, Parliament, at the behest of the government, increases the maximum sentence for that crime, it is not generally appreciated that this will have an effect on the going rate for all sentences for that crime and indirectly for other crimes as well. When the maximum sentence is increased, the judiciary, as their guideline judgments show, take that as an indication that Parliament wishes all sentences for that offence to be increased. This increase then has an indirect effect on other offences because of the need to keep sentencing for different, but similar, offences in proportion with each other. Thus, when Parliament doubled the maximum sentence for cases of death by dangerous driving, sentences for all such cases were pushed up and there was a knock-on effect on sentences for dangerous driving cases without death as an aggravating factor. Indeed, in my recent guideline judgment I referred to the gap that had arisen between the maximum sentences for the two offences and indicated my support for an increase in the maximum sentence for the less serious offence to address the anomaly.
In addition, Parliament has, also at the behest of the Government, increased the proportion of the sentence served in prison and the period during which an offender can be recalled to prison. It has also provided for extended sentences and mandatory and minimum terms both of which have an upward effect on the prison population.
Finally, the fact that the Attorney General can and does appeal against unduly low sentences has a direct and indirect upward effect - directly, on the individual sentence referred by the Attorney and, indirectly, on other sentences for the same and similar offences. The increasing number of guideline judgments and Attorney General's appeals also have a damping effect on the sentencing judges' discretion to extend leniency because of the particular circumstances of a case.
If sentences have increased in this way, should not the judges now decrease all sentences because of the conditions in our prisons? Our judges, when sentencing in individual cases, can and should take into account the situation within the prisons, but I doubt whether action reducing sentences across the board can be taken by anyone other than Parliament.
My own experience, when issuing recent sentencing guidelines in respect of domestic burglary, confirms this. I suggested no more than a change of emphasis in relation to burglaries by first time offenders where there were no aggravating features, but my guidelines prompted a howl of outrage from the media which interpreted them as a general amnesty for all burglars.
New Sentencing Guidelines Council
What is needed is a new approach. The approach involves recognising what should be the order of priorities when sentencing. There needs to be a greater emphasis on the prevention of crime and greater priority given to the police and probation services. I would also like to see greater emphasis on community punishment, restorative justice and rehabilitation. That is the same as saying, "concentrate on what works".
Parliament is taking action. There is a massive Bill (the Criminal Justice Bill 2002) going through Parliament which will establish a new Sentencing Guidelines Council. The Council's task will be to create a new code of sentencing guidelines. The Council was to consist only of sentencers at all levels, but the Government is no longer sure that this is the right approach. However, the Council will be independent and the holder of my office will preside. A judge, in passing sentence, will be expected to take its guidance into account. The legislation makes clear the Council's remit. It requires the Council, when setting guidelines, to have regard to:
- the need to promote consistency in sentencing
- sentences to which the guidelines relate
- the cost of different sentences and their relative effectiveness in preventing re-offending
- the need to promote public confidence in the criminal justice system
- the views communicated to them by the Sentencing Advisory Panel.
Those considerations are not exclusive and I would like the guidelines also to take into account the facilities and resources that are available for dealing with offenders both in the community and in the prisons. Similarly, I would welcome a statement that the Council should not make guidelines which will result in the prisons being overcrowded. If the Council was required to produce guidelines that would result in a match between the number of prisoners and the size of the prison accommodation, this could be done and would, in itself, be a positive move.
What I hope the Council will do is assist in taking questions as to the level of sentencing out of the political arena. In my jurisdiction, unfortunately, there has all too often been competition between the parties as to which can be toughest on crime and too little attention has been paid to addressing the causes of crime. The fact that guidelines will, in future, be set by an independent body under a structure created by Parliament may well deter politicians from regarding the level of sentencing as being a subject from which they can make party political capital.
An holistic approach
Regrettably, our new legislation does not follow the example of New Zealand and recognise that, at least in relation to young offenders, if you are really going to tackle the causes of crime, what is required is a holistic approach involving the families of potential repeat offenders. There is also a need to involve other agencies including the authorities responsible for education. All too frequently, youth crime, truancy and exclusion from school go together.
An illustration of the changes that the Council could promote is provided by what is happening in the Youth Justice System. A Youth Justice Board has been established with the principle statutory aim of preventing (rather than punishing) offending. This does not mean that there is no need to punish. It means that it should be recognised that punishment is only part of what is to be achieved. Sentences should be constructed to make it clear that crime does not pay, but they must also be constructive and result in the offender, at the end of his punishment, being less likely rather than more likely to re-offend. Lord Warner in the recent annual review (2001/2002) explains what has been achieved;
"The local engines for driving the majority of the reforms to the youth justice system have been the new multi-agency Youth Offender Teams - bringing together police, social services, education, health and probation to deliver a wider range of programs that tackle offending behaviour at the different stages of its development".
I agree with Lord Warner that YOTs are a success and entitled to considerable credit for what they are achieving. And I echo his call for the Crown Courts to consider more carefully whether the use of custody is necessary. But there should be a unified jurisdiction to deal with young offenders that includes those responsible, a family if there is one, for looking after the offender. I also believe that the approach pioneered by the Youth Justice Board could usefully be replicated and applied to a wider range of offenders.
Improving public confidence - changing the emphasis
Perhaps the biggest challenge facing us in the United Kingdom is convincing the public that there are meaningful alternatives to long prison sentences or, in appropriate cases, to any use of custody. Perhaps surprisingly, studies indicate that when members of the public are told the facts of a particular case they suggest similar or less punitive sentences than our judiciary would impose. However, unfortunately the popular media in our country conduct campaigns which are damaging to public confidence and often are not based on the actual facts. It is extraordinarily difficult to obtain the support of the popular media to more rational sentencing policies.
It is my belief that restorative justice has a great part to play. It can assist the victims and it can also cause the offender to face up to the damage his criminal behaviour causes. I attach particular importance to the public involvement in the process. It is my belief that the way forward depends upon getting the public more involved.
The Bill to which I have already referred sets out in statutory form the purposes of sentencing and this has much to commend it. The relevant clauses of the Bill provides as follows:
- Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:
- the punishment of offenders,
- the reduction of crime (including its reduction by deterrence and its reduction by the reform and rehabilitation of offenders),
- the protection of the public, and
- the making of reparation by offenders to persons affected by their offences.
It will be observed that punishment has been placed first in this list. Punishment is important but my message is that the reduction of crime and the protection of the public are the main priorities. A change of emphasis of this sort is what we need in the UK.
Confiscating the proceeds of crime
One element in the sentencing galaxy upon which more stress needs to be placed is the confiscation of proceeds of crime. In the UK, an agency has been established for this purpose. Much more emphasis will be placed on this subject. And so it should. If we can link high rates of detection with rigorous confiscatory procedures we may achieve real deterrence.
A problem solving approach
In New York, they have been piloting with equal success, community courts such as the Red Hook Community Justice Center that are also known as problem-solving courts. At Red Hook, they seek to solve the neighbourhood problems like drugs, crime, domestic violence and landlord and tenant disputes by using a single judge who has an array of sanctions and services at his disposal, including community restitution projects, on-site training, drug treatment and mental health counselling. But the court's reach goes beyond what happens in the court. It reaches out into the community and engages the community in achieving Justice. I found my visit inspiring and was particularly impressed by the way that the outlook of the community towards its court had been transformed by its problem solving approach. The tackling of the problems of minor offenders prevents them becoming serious criminals. I am delighted that the British government has recently announced that it will explore the scope to adapt the Red Hook model to meet the needs of communities in the UK.
On a smaller scale, Drug Treatment and Testing orders in England and Wales are already seeking to achieve what is being achieved at Red Hook. The order was introduced in October 2000 and the reports are encouraging. The distinctive feature of the orders is the continued involvement of the sentencing judge through review hearings. The judge tracks the offender's progress. It is found that the involvement of the judges maintains the motivation of those who are the subject of the orders. They respond to both the deterrent effect and the approbation they receive when they make good progress. The involvement of the judge is not only good for the offenders, it is good for the judges themselves. Their involvement means that they obtain valuable experience as to how to use the orders most effectively. They appreciate that the programs are long term and that progress can be slow with an ever-present danger of relapse. When an offender fails, it does not mean that the program should be abandoned. It is often more effective to return an offender to the order so that they can renew their attempt to break their addiction. Encouragingly, the number of orders terminated for failure to comply with the requirements is now running at 29%.
The Drug Treatment and Testing Order should provide a model for the new community penalties which our new legislation promises. The wider the range of penalties the better. Of those set out in our new Bill, it is my belief that 'community service minus' offers the greatest potential. Community service minus is a form of deferred sentence. It should enable our courts to adopt a similar approach to that of Red Hook and to the use we make of drug treatment and training orders. By offering to defer sentence, the court can provide an incentive to the offender to address his offending behaviour by, for example, becoming involved in a Restorative Justice program. The more tools that are available to the judge the more likely that further offending can be avoided.
The Bill provides a vision of what might be achieved by diverting offenders from crime without burdening our prisons. However, the vision has no hope of fulfilment unless our Probation Service is to be funded on a different scale from what is now proposed. All the new programs, whether they relate to new or existing community punishments or the supervision of offenders after prison, depend on the close engagement of the Probation Service. Community punishments will be shunned by judges and rejected by the public if they cannot rely on that supervision taking place. However, the Probation Service, because of a lack of resources, is finding it difficult to fulfil even its present obligations.
The Probation Service is being forced to focus its activities in a manner which means that sentencers are not obtaining the help that they need. With greater funding, there is little doubt that the Probation Service could be far more effective than it is able to be at the present time. Unless this lack of resources is tackled the reforms will be of little value. The whole credibility of the Government's programme of reform of hangs on the resources it is prepared to provide for the probation service.
Here again there are lessons to be learnt from other jurisdictions - I am particularly impressed by the use of home detention in New Zealand. The scope available today to create a virtual prison by electronic means opens up potential to break the vicious circle by which ever-increasing expenditure on prisons reduces our ability to tackle the causes of offending.
One type of initiative which, I am afraid, usually results in the United Kingdom from a politician's knee-jerk reaction to a particularly serious incident, is the mandatory sentence. Mandatory sentences come in a variety of garbs but, with the exception of minor punishments, they are all designed to achieve the same purpose and suffer from the same defects.
I do not regard mandatory sentences as being constitutionally in conflict with the judicial function. I have no quarrel with the decision of the High Court of Australia in Palling v Caulfield where the court held that a statute prescribing a set penalty ranging from $40 to $200 to be imposed as requested by the prosecution did not constitute an interference with the judicial functions or an attempt to delegate legislative power. Chief Justice Barwick said:
"It is beyond question that Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is only one penalty, which the court is empowered to impose, and in my opinion it may lay an unqualified duty on the court to impose that penalty."
However, the CJ went on in terms that strike a chord:
"It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime."
I have also read with interest the article by Sir Anthony Mason, Mandatory Sentences: Implications for Judicial Independence in which he states:
"Some may be surprised that the authorities do not provide support for the proposition that the judicial function in sentencing necessarily entails a sufficient element of discretion which enables a court to differentiate between different degrees of blameworthiness."
"The law which insists on the incarceration of a first offender, more especially a young offender, for theft, no matter how trivial the amount involved, regardless of alleviating circumstances is inhuman in this day and age. Some might describe it as a cruel and unusual punishment."
Interestingly he concluded, "Draconian legislation of this kind strengthens my view that it is time that we joined the other nations of the Western world in adopting a Bill of Rights."
As you know, the UK has now adopted a Bill of Rights and I am glad to say that it is achieving some protection, "against the majority will, when it sanctions legislation causing grave injustice". We have our examples of '3 strikes and you are out', a sporting metaphor which may not amuse those who are subject to penalties of this sort. In our case, the sentences in question are usually mandatory unless there are exceptional circumstances. Prior to the Human Rights Act, what is and what is not an exceptional circumstance was subject to a narrow interpretation because it is very difficult to find anything in the world of crime which truly can be regarded as exceptional. In a case called Offen, relying in part on the need to avoid a mandatory life sentence being regarded as arbitrary and disproportionate punishment contravening article 5, a court of which I was a member, reasoned as follows:
"The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can be assumed that the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption [that is of the mandatory penalty] was misplaced, then this, in the statutory context, was not the normal situation and in consequence, for the purposes of this section the position was exceptional."
This more generous interpretation enabled the court to have regard to the period of time which had elapsed between offences, the fact that they were of a different character or the situation where the first serious offence had been committed when the offender was young.
I have already imposed a cruel, unusual and excessive punishment and I will now bring the ordeal to a close by saying:
- I hope you at least agree that it is time for a new approach to sentencing;
- We must find the best approach and that is unlikely to be achieved unless different jurisdictions learn from each other;
- Sir Leon was right in saying we have to eradicate politics from sentencing.
- By far the most important, was the Halliday Report, Making Punishments Work: Report of a Review of Sentencing Framework for England & Wales, published in July 2001. The second was a report produced by the Social Exclusion Unit of the Cabinet Office and finally, there was a report issued by the Public Accounts Committee.
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