Some of you may recall the last time we attended a regional gathering like this. That was back in April 2003 when sentencers and probation got together to consider the theme, Cutting Crime: sentences that work.
I mention that not from a sense of nostalgia; although in our business, three years is a long time. So the event was far enough back to begin to acquire a lustre of its own!
No, I refer to it for a more practical reason: to compare and contrast - as they say in exam papers - where we were then with where we are now. Because it’s a good way to identify changes and progress.
As a reminder, one of the talking points in 2003 was the new local criminal justice boards. Three years on, they’re now a valued part of the furniture. The agenda also included keen advocacy by Lord Justice Kay - now sadly no longer with us - of the value of community sentences.
Other issues we discussed were the use of curfews and DTTOs, as they were called then. OASys assessments; promoting sentencer confidence in community disposals; and how to improve offenders’ thinking and attitudes. Yes; as you’ve spotted, some things don’t alter.
The difference between then and now is the effect the changes in our landscape since 2003 have had on our response to topics like these. So let me focus on some of the headline changes and consider how we’ve handled them.
First, of course, the reason we’re here: the new Criminal Justice Act itself. But I don’t think we can look at that without reflecting on another important change.
A month after the Act became law, a report appeared from Lord Carter on his review of correctional services. Without over-simplify things, there’s an argument which says that part of the report identified what he saw as problems: a trend towards harsher sentencing for offending of no greater severity, and sentencing inconsistency across England and Wales.
He pressed the need for a seamless system for managing offenders’ sentences, whether in prison or the community. A system to be provided through a proposed - now a reality - National Offender Management Service - NOMS. Another reason we’re here.
He pointed, too, to the need for a clear understanding of the link between a sentence given and a sentence served. In short: he saw a problem and offered - partly through NOMS - a means of managing the solution. The Criminal Justice Act, I suggest, offers a framework for part of the solution itself.
Thus, I think we must take the two together for an effective review of where we are. First, the Act. For me as a magistrate Part 12, which deals with sentencing, is one of the most significant. It runs to nearly a hundred and sixty sections. So I’ll pick just four of many highlights that for me show how we should change the way we think about our role in court.
First, we have an explanation for the reasons we pass a sentence - punishment, reduction in crime, deterrence, reform, public protection and so on. We’ve been dishing out justice for more than six centuries, so you may feel that a formal guide to why we’re doing it is somewhat overdue. I couldn’t possibly comment! But no matter how late it may be, it now provides a practical tool to improve our decision-making.
Second; another crucial aspect of the Act is its establishment of the Sentencing Guidelines Council. Its purposes include the need to promote sentencing consistency – which is in tune with Carter’s evidence about sentencing inconsistency.
To help with that, one of its first guidelines unpicked what we mean by a term we all use: seriousness. It’s a starting point for sentencing decisions, and therefore, critical to the process. Now, thanks to the SGC we have to test our assessments of seriousness against two carefully crafted criteria - culpability and harm. Words that provide, for the first time, objective measures rather than the not untypical practice of pitching an offence against a subjective seriousness scale of one to ten.
In my view, that’s hugely beneficial reform, because it makes us hack a clear mental path through the jungle of facts that characterise so much of our business.
And for community sentencing, the Council has added risk of re-offending as a valid sentencing consideration. We are expected now to broaden our thinking to reflect formally on, for example, an offender’s potential for turning a corner. This, too, is significant, because, as you will know, prior to the Act, sentencing decisions tended to focus on seriousness alone. This in my view, we now have the machinery for greatly improving how we sentence.
The Council also refers to the expectation that Probation will be consulted over decisions to impose community sentences. That’s important, because it reinforces the interdependent relationship between sentencers and probation. As sentencers we decide. But to do so effectively, we need probation as interdependent partners.
Third, the Act itself also includes the requirement for us to give reasons for our decisions and to explain the effect of our sentences. Giving reasons is something we’ve become practised at since the Human Rights Act came in with its expectation of explicitness. Now, it’s specifically enshrined in law.
And the fourth big reform, which is particularly relevant today, is the Act’s tidying, clarifying and expanding community sentences with its twelve potential components of a community order. Carefully structured options, which steer courts on a route towards cogent and defensible decisions.
Alongside these, we have other new options – the re-invigorated suspended sentence; deferred sentences. Plus, of course, intermittent custody and, soon to arrive, custody plus. Taken together they’re a potent mix.
So let me recap on what I regard in today’s context as four of the main plusses of the Act.
As I’ve said, this is my selection of reforms which I consider have the greatest beneficial impact and scope for enhancing how we, as magistrates, carry out our duties, according to our judicial oath. My question is how far have we harnessed its potential?
I mentioned a few minutes ago that there were two major changes since the 2003 conference. I’ve looked at one - the Act. Let me return now to the other change: the impact of Lord Carter’s views on sentencing practice and the invention of NOMS.
Again, I’ll pick on some key themes, offer my thoughts about how we as sentencers have responded, and should respond and then tie them up with my earlier comments about the Act.
It’s too soon, I think, to answer the issues Carter raises about sentencing severity and consistency. I accept we now have figures so we can compare the same periods in 2004 and 2005: pre- and post-Act.
For instance, I can tell you that in Hertfordshire prison sentences of up to twelve months have risen by twenty seven per cent. I can also tell you that there’s been a drop of twenty three per cent for sentences of twelve months and over.
Looking regionally at community sentences; that between April and September, the region has passed an almost ten per cent bigger proportion of sentences with compulsory unpaid work requirements than the national average.
But I have to ask, is this more severe sentencing? Is it less severe sentencing? Is it inconsistent sentencing? Is it limbering up or settling down? Is it taking us closer to, or farther away from, a goal of re-configuring the sentencing cake?
At this stage, I think, we just can’t tell. But the figures also connect with another Carter issue where we can have a view: the need for clear understanding of the link between sentence given and sentence served.
It’s a proposition broadly reflected in the Act with its requirement that the Guidelines Council’s guidance should have regard to the cost of different sentences and their effectiveness in preventing re-offending. It puts a clear expectation on sentencers and sentence-providers to consider what that link should be. And, therefore, how the relationship between sentencers and probation and NOMS should develop.
And we can use those figures as a prompt for questions about, for example, the growth of those short prison sentences in Hertfordshire. And about compulsory unpaid work. For example, on that I’d like to know if there’s enough compulsory unpaid work for offenders to do. If not, how many offenders are being sent home? Or should we consider alternative penalties?
Are all offenders doing the prescribed number of hours’ work per week? What work are they doing? Are the sentences effective? In my Probation role, I know that the tasks are demanding and effective. But I’m not sure if that message is shared a widely as it should be.
Are the arrangements for breaching offenders being carried out according to Probation’s national standards? How much does all this cost? And does it reduce re-offending?
All reasonable questions, but not perhaps ones that the two thousand four hundred of us JPs on our two dozen benches in our region would ask routinely. Or if we do consider them, do we sometimes wonder if they’re our business anyway?
Such questions are only illustrative. But they reflect my view that NOMS is promoting a change of climate to a position where they are very much our concern. So the answer from each of us to each of those questions must be a resounding ‘Yes’. Because they are part of our shared overall responsibility for helping to reduce crime. We’re on the threshold of a new relationship and it’s important that it works well for both of us.
And in that vein, let me flip the coin and give you an example of some questions that NOMS and Probation could be asking us as sentencers.
Take, for instance, sentencing reports and the numbers we order where offenders end up with either a fine or a discharge – something we could have imposed without a report.
Now, sentencing isn’t easy. It’s a matter of assessing and sifting facts about offenders and offences and aiming to match them as precisely as we can with the sentence available. To do that we require as much relevant information as possible.
But it’s fair to question whether we’re always as focussed as we could be in our information- gathering if the reports we order may have been unnecessary. Now, this isn’t me banging the drum for a reduced Probation workload. It’s me with a snapshot of my county, Hertfordshire, for the first nine months of two thousand and five – six.
It shows that our four benches ordered around a hundred and forty reports where offenders ended up with fines or discharges. That’s about five per cent of the reports produced. It may not seem many, but it represents hundreds of hours spent producing material, which, on the face of it, we haven’t needed.
Imagine if that figure is repeated across the region, let alone across England and Wales. It will represent a vast consumption of time and resources for apparently little purpose. Time and resources not available to supervise or do other work with offenders we’ve already sentenced. Never mind the time we spend on the bench reading those reports – time we could spend on other work.
The Act continues our discretion not to order reports where we don’t need them. Are we, I wonder, making the most of that discretion? Similarly, I wonder if we ask ourselves routinely before ordering all-options reports the basic question, ‘If we were sentencing today, would we send this person to prison?’ Because if we did ask, I wonder how many times the answer would be ‘No’ ? Quite a few, I suspect. So other than making an offender ponder his fate for a time, there seems little point in asking Probation to use its resources assessing options we have no intention of invoking.
I know the argument that by limiting options when we order reports we’ll tie the hands of the sentencing bench. But I think it’s a weak argument, particularly with guilty pleas, because the original bench and the sentencing bench hear virtually the same facts. So why shouldn’t the first bench have the courage of its convictions - if you’ll forgive the phrase - and give the sentencing bench a clear steer as to the most suitable sentencing range.
In my view, not to do so is passing the buck. To be fair, there’s a further issue here. A report-commissioning bench is unlikely to hear the actual sentence passed. So rarely, if ever, do we have the chance to compare the views of the report-commissioners with the sentencers. I’m really not sure that that’s the best way to do things.
But I am sure that the new bench/Probation liaison structure now being established could help on this front. Is there a role for the ROM in enabling a process for letting a report-commissioning bench know what decision has been taken? That’s not to under-estimate the complexity and resource implications of such a process, but I am in no doubt about its value.
Because if we knew, for example, that a significant number of all-options reports sought resulted in non-custodial sentences, we might, in future, be certain we genuinely had custody in mind before ordering them. Perhaps as a start, we ought to add a couple of question to those report request forms we use: Is a report truly necessary? And, Are we really considering custody?
Sharpening up our approach in this way has the potential for enormous benefits. And in my view, these are proper issues for Probation to raise with us.
And finally, some potential collaborative enterprise. Many of the points I’ve touched on relate to practices away from the public gaze. But let’s never forget that the acid test of how the Act and NOMS and all the things linked with them work, is how far they’ve helped to reduce re-convictions.
We all want to be able to say, for example, that through the community sentences passed under the new Act, re-conviction has dropped by X per cent. But we can’t.
And therein lies a problem. Even the most obvious means of measuring - through the police national computer - has its drawbacks. Apart from delay, for example, it doesn’t distinguish between convictions for severe and less severe re-offending.
Nor does it assess frequency of re-offending. Both valid considerations. So perhaps jointly, Probation/NOMS and sentencers could make common cause in pressing for early action to produce supportable data on re-conviction.
These, then, are examples of how I feel the Act and Carter have encouraged a new culture of constructive collaboration. But let me go back to my original notion of comparing and contrasting our world now with the picture in 2003. I’d say that many of the issues are the same, but we’re now far better equipped to deal with them.
The Act, the Sentencing Guidelines Council and NOMS have a unity of purpose and an interdependence which, as sentencers, we should share.
They’ve made us explain ourselves better. To think more clearly and carefully about what we want to do, what we should do and why.
It must always be the case that sentencers decide sentences in individual cases. That’s what judicial independence means. But it doesn’t mean our being separate from the processes which enable us meet those responsibilities.
Or our being separate from the communities on whose behalf we dispense justice. We’re part of those worlds. We have a duty to engage as interdependent partners with those who provide and manage sentences for us. To understand better what they’re about; what they’re offering; to feed back practical experiences. To understand better the consequences of our decisions.
So that we are better able to reassure our communities that the sentences we pass can make a difference and can reduce crime. It’s up to us to seize the opportunity - and to use it. So far, then, I’d say it’s mission partly accomplished.
Nicholas Moss JP,
Chairman, North Herts Bench/
Chair, Hertfordshire Probation Board
January 16th 2006
Ends
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