Friday, 22 January 2016

Avoiding Long Sentences

 Yesterday the Sentencing Council published an assessment of the impact which its Guideline on Burglary has had on sentencing trends since it came into force in 2012.  I came across it by chance – it doesn’t appear on the “Latest from the Sentencing Council” bit on their homepage, but is tucked away under Publications.

The Council may not have wished to draw attention to the study because on the face of it, the results raise embarrassing questions about the value of guidelines . The Burglary Guideline was supposed to increase consistency and "regularise practice", rather than "substantially altering it”.  The research found that in fact there has been a shift towards more severe sentences for all kinds of burglary and for non- domestic cases “a steep increase” with average custodial sentence lengths going up 13% between 2011 and 2014.

Much of the report looks to attribute the changes to factors other than the Guidelines such as pre-existing upward trends or the effect of the 2011 riots in London and other cities. The report argues for more research to identify why there has been a change contrary to the resource assessment – the exercise the Council is required to undertake to estimate the impact of their guidelines on the need for prison and probation places. In the case of burglary no change in disposal types or length was anticipated in the final resource assessment published in 2011.

Something seems to have gone seriously awry, with judges seemingly either misinterpreting the Guideline or ignoring it. The Crown Court Sentencing Study published last year found that in 97% of cases Judges sentenced within the (generously wide) prescribed range for the various burglary offences; but for sentences of “domestic burglary” and “non-domestic burglary” virtually all departures from the guidelines were above the offence range. The latest study findings make it look plausible that in addition,  some at least of the Courts which have sentenced within the ranges have nevertheless upped the going rate in a way that was neither intended nor predicted. 

Whatever the reason, sentence inflation has certainly happened and as the resource assessment document pointed out in 2011 “since sentencing for burglary costs around £260m a year, small changes to sentencing practice have the potential to have substantial resource implications”. These cannot have been welcome to the cash strapped Ministry of Justice who, according to the Permanent Secretary, have had to introduce unusual and controversial measures last year to avert a several hundred thousand pound overspend.

But the research points to a brutal truth that the ministry and its boss must face. It was put eloquently in the House of Lords yesterday by Lord Dholakia who argued that “sentencing guidelines should scale down the number and length of prison sentences except for the most serious crimes”; and that the Government should legislate to make sentencing guidelines take account of the capacity of the prison system.  Unless they take those kind of measures, Mr Gove’s warm words on prison reform will be destined to remain just that.


  1. Thanks for your interest in our report. Your article quite rightly points out that the initial analysis of the burglary guideline - used to sentence 15,500 burglary offences in 2014 - has found that for non-domestic burglary, sentences have become more severe, something which was not anticipated when releasing the guideline.

    While the riots in August 2011 may have had an impact on this upward trend, it has not yet been possible to establish whether the riots contributed in any way to the continued upwards trend, whether the guideline is attributable, or whether a combination of the two led to the observed outcomes. The Council therefore plans to conduct further research in this area to explore some of the possible reasons and to establish whether the guideline may need to be changed, and if so, in what way.

    The Council’s approach to developing guidelines is based on a guideline development cycle, whereby different iterations of a guideline are produced and tested to ensure they can meet their aims and be implemented by judges in the way intended. Based on the outcome of these exercises, guidelines are refined.

    Monitoring and evaluation activity is also undertaken, with a view to assessing both the impact of the guideline (on sentencing practice and consequentially correctional resources) and any issues that have occurred with its implementation. In this way, the Council can consider the need to potentially revisit the guideline and make improvements.

    Our work with sentencers has shown that they place great value on the guidelines. In a recent assessment of the Council’s assault guideline, sentencers were positive about the guideline in relation to the consistency they felt it brought to the sentencing process, and the logical structured decision-making it promoted, whilst still allowing them judicial discretion and flexibility.

    Even so, the Council has noted that the assessment has highlighted some issues with that guideline that may be affecting its implementation and therefore has committed to revising it in due course. It will consider whether or not to take similar action in relation to the burglary guideline following the more in depth assessment it has already committed to undertake.

  2. This is an excellent spot. Thank you for highlighting! It still isn't clear to me exactly how much sentencing reform our new Justice Secretary wants to implement... but he will have to do some if he is to hit George's budget targets...