You’ll note that this slot is shown in the programme as a Magistrate’s Perspective. It happens to be me, simply, I think, because I was in range when the Regional Offender Manager, Trevor Williams, was planning this event.
I make the point because I want to be clear that, as a magistrate, the comments I’m about to make are entirely my own and do not purport to represent the views of the justices in Hertfordshire, Bedfordshire and Essex/Cambridgeshire, Norfolk and Suffolk. Or any one of them - even if a synthesis were remotely possible. It’s all the more a privilege therefore to be the one addressing a captive group of sentencer movers and shakers.
My views are based on my experience as a JP, but they are also informed by my current stint as a Probation Board chair. Although the roles of the bench and probation are clearly very different from each other, my engagement with both at close quarters reinforces to me ever more plainly the importance of a common characteristic which binds us and the other agencies with whom we work: interdependence.
It’s not a revolutionary or even revelatory concept, I acknowledge. Nevertheless, it’s one that, in my view, is at the heart of what happens in court. And so it’s at the heart of today’s event.
By interdependence I mean that as sentencers we have an interwoven responsibility with other agencies to do all we can to promote public confidence in the criminal justice system and to make our fellow citizens feel safer. It’s an interdependency in the main with - as well as our legal advisors - the Crown Prosecution Service, the Youth Offending team and Probation, with whom we have a special relationship.
As we all know, our contribution to that interdependency is judicial decision-making: passing appropriate and just sentences. It’s a duty underpinned by our oath - a solemn, binding and personal undertaking to do right to all manner of people according to law. In short, to be fair to all those who appear before us and also being appropriately speedy and having a proper focus on victims and witnesses.
The oath is our single, permanent and most potent guideline, but I wonder if we tend to view its meaning too narrowly. Indeed, when I began to think about the phrase in the context of today, I concluded that if I am fully to do right to all manner of people, I have obligations in addition to those related solely to the cases before my colleagues and me.
In support of the approach which this view implies, I think we need to consider the current public policy context. We are all aware the government sees public services generally as needing an overhaul. Our sector - criminal justice - is part of that drive. Indeed, in the past five years, we’ve seen, for example, the creation of:
The last two, in my view, have had a direct beneficial impact on what we do in court on the day. But much else that has happened has taken place around us, and not to us or for us specifically, until now, that is, with NOMS. Its overarching purposes are essentially:
The second purpose unquestionably is a hand - a helping hand - on the sentencers’ shoulder and the reason for today’s event. That purpose is plainer still when you take those aims alongside the recent Simple, Speedy, Summary Justice white paper and its articulation of the Principles of Community Justice.
According to the paper, as a sentencer I need to be more responsive to local people and to work collaboratively with a range of agencies to solve problems, so that courts can provide a complete end-to-end service to offenders.
In my view, therefore, there’s no escaping the conclusion that doing right is not just about what happens in court on the day. It’s also about playing the long game.
So how do the current arrangements meet this aspiration? Sentencing is a sharp end activity - but we carry it out with some fairly blunt instruments, because broadly we have to make do with what we’re given. Take it or leave it. Except that we can’t leave it. Our oath commits us to do otherwise.
I’ve been used for years to talking to Probation in various forums about the services it provides. And helpful and constructive those arrangements continue to be. But, at present, that’s just it: the services it provides. We have a common interest in ensuring that our sentences are implemented effectively; but we have no real say over the practical ingredients, beyond the most general.
The scope for a bespoke array of disposals within the sentencing framework has been constrained by a national prescription for what’s needed. You may feel that some of the ingredients have been determined by a process more akin to alchemy than analysis.
As far as I know, there’s never been a systematic assessment - a sort of Domesday Survey - of what we actually need - here in this region - to meet our responsibilities; to contribute to those principles of community justice, an end-to-end service to offenders and, thus, our role towards the safety of our fellow citizens. In today’s language: there’s no pull-together of what services should be commissioned.
That’s the background. It’s not complicated; disarmingly simple perhaps? But events such as this won’t take us direct to judicial nirvana. That may yet be some way off! But I do think they reflect a new era of engagement. They set a new direction which we should explore enthusiastically, so that we sentencers really do play our full part in the bigger picture.
Being asked what we want, rather than commenting on what we have, is a bit unreal and, I think, unique. But I believe that very rapidly we can take full advantage of the offer, without becoming unwitting collaborators in the erosion of our judicial independence in individual cases.
Let me give you a few examples with community sentences. I’m sure you’ll have countless others. For instance, we have plenty of offenders with alcohol problems. Far too many, we may feel. So it’s essential that, if we make alcohol treatment requirements, they work. Hand on heart, as things stand, I don’t think I can say, with complete certainty, if I’m on a bench that makes such a requirement, that it’ll do what’s needed.
But what we can now say to Trevor Williams is that he needs to invest heavily in alcohol treatment services - and get the health sector to do so as well – so we can match provision with need. And to ensure that those services are of a high standard. And to find a way to show that they reduce reoffending. For alcohol, you could just as easily say drugs.
Another example: how many offenders have mental health problems? Again, plenty. We can make mental health treatment requirements. But, as with alcohol and drugs, we’re fairly powerless to do anything substantial about what we receive. Or to find out how good they are. Or to speed up those all-important psychiatric reports.
Then take housing and jobs. We know that not having a home and/or a job are two main triggers to reoffending. We should support Trevor in ensuring that local authorities and local employers take their share of responsibility for doing something about those problems.
Similarly, getting sufficient help for offenders who can’t read and write properly can make a huge difference to them - and to all of us, by reducing the risk that they will re-offend.
Take a further example even closer to our direct experience: people who don’t or won’t pay their fines. We all know we have to try money payment supervision orders before we can move up the tariff. But we know, too, that unless offenders happen already to be on Probation’s books, the service doesn’t generally have the resources to deal with standalone MPSOs.
So for offenders who may not be existing Probation customers, it’s a bit of machinery that remains out of service, because there’s been no starting handle to crank it to life. It doesn’t have to be like that. Another job for Trevor and his team!
As sentencers, we know that Hertfordshire has no premises for offenders to be bailed to rather than being remanded in custody. No premises for offenders on licence to go to. And no formal means - until now - to get those issues addressed.
In short, we’re very much on the receiving end of what others say is we should have. We are not in the driving seat. That’s been the picture for as far back as I can remember. Long-standing problems, but no mechanism to address them on the scale or with the focus that’s necessary.
Now’s our chance to say upstream with an independent voice - long before we deal with specific cases - that we need practical, tailored, quality services to support how we deal with people who are mentally ill, alcoholic, drug addicted, homeless, jobless and so forth.
That isn’t us becoming social workers. It’s us as sentencers using our wealth of experience and expertise to help to solve problems for our communities. Our way of helping to do right to and right for all manner of people.
A string of examples, then, the obverse, which means there’s also a reverse and it’s this. Traditionally, we have had no regard to the resources involved in our decisions, although, you’ll know that the Criminal Justice Act does say that the Sentencing Guidelines Council’s guidance should have regard to the cost of different sentences and their effectiveness in preventing re-offending. A clear reference to resources and how they’re used.
It’s interesting, too, to see in another white paper, this time from the Home Secretary- Rebalancing the system in favour of the law-abiding majority - a reference to sentencing report ordering. There’s a commitment to working with the Lord Chief Justice and sentencers to ensure that courts don’t make excessive demands for reports.
In that context, I think we ought to be told how many thousands of precious probation hours we’re using - perhaps squandering - across the region by ordering reports we don’t need, because we end up giving offenders fines or discharges. Disposals we could have made without reports. That’s time not spent working with offenders to enforce our sentences and helping them not to re-offend.
Of course, there will be occasions when the decision to fine or discharge could only be made following a report because of the facts which emerge from it. But not every time. Certainly not around the five or six per cent of the occasions that Hertfordshire, for example, is running at.
I wag my finger at all of us collectively on this, because I think we’ve all been guilty. I’d hope that in the dialogue that’s now starting, Trevor will feed back to us directly, or through Probation, the resource impact of those decisions. That will help us to do our job better.
As I said a few minutes ago, for us as sentencers, commissioning is about approaching what we do in a different way. I’ve given two sets of examples of how things could – in my view, should – be. In essence, it’s about our responsibility to identify need; to recognise that resources to meet it are finite; and so to help to make sure that those resources are used to best effect. It’s about doing that while maintaining our independence in each case we deal with.
As we work towards those objectives, let me add that I believe also we must exploit to the full that special relationship with Probation I referred to earlier.
It’s a relationship that’s almost a century old. It has a very long and productive life ahead of it. In my Probation role, I am in no doubt that it should, and will continue, to be seen as the number one player in the ROM’s list of service providers he commissions.
So, along with sentencers’ new relationship with the ROM, it’s part of a triangle of interdependency which has never been so valuable and which has never had so much potential. When we achieve that level of collaboration, we will have made major progress in leading ex-offenders towards law-abiding lives and towards protecting our fellow citizens.
In my view, we shall fully be doing right both to and for all manner of people.
Nicholas Moss JP
Chair North Herts Bench
November 2nd and November 3rd 2006.
Ends
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