The Wrong Trousers: Why The Tailored Review of the Sentencing Council Doesn't Measure Up

This week the Government published reports about four important organisations sponsored by the Ministry of Justice- the Law Commission, Criminal Cases Review Commission, Independent Advisory Panel on Deaths in Custody and the Sentencing Council. The reports are the fruits of so-called “tailored reviews”, which departments must undertake on all their arms- length bodies once every parliament. The reviews look at whether the outfits are still needed and how well they are working.

Up to now, the Sentencing Council has escaped the attentions of any government scrutiny because of its “unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”.  Such a role should arguably call for more not less examination, but anyway eight years on, there’s been a review of sorts. Sadly, it falls far short of what’s needed.

The review should have started by looking at what’s happened to sentencing since the Council started work in 2010. Eight years ago, if you were convicted of an indictable or either way offence- one of the more serious crimes- you had a one in four chance of going to prison. Now it’s one in three. Average sentence lengths have gone up too from less than 16 and a half months to over 20.   Since almost all the Council’s 25 Guidelines have generally sought to retain the current levels of sentence severity, on the face of it something’s gone wrong.

It’s possible that in recent years offences have become more serious and offenders more persistent- there is some evidence for that. But that’s far from the whole story. The Council’s own assessment of its guidelines on assault and burglary have shown they have resulted in unexpected increases in sentencing. Their assessment of theft guidelines, also published this week, paints a similar, if less pronounced picture.

Of the Council’s contribution to sentence inflation, you would learn nothing by reading the tailored review.   The review makes some useful recommendations - for the Council to consult more widely with black and minority ethnic groups in the production of guidelines for example - but the first order questions about the impact the Council has had, just haven’t been asked.

That’s the case as well with the Council’s remit to increase public understanding of sentencing. Is that any better than it was eight years ago? Not an easy question to answer but the review doesn’t even try- instead making an opaque recommendation that the Council “should consider widening public awareness of its work through cost-effective engagement with other criminal justice bodies”.

Part of the problem is that the review was somehow supposed, in true Sir Humphrey vein, to provide robust challenge with a light touch- and it’s the latter approach which has prevailed.  Cabinet Office Guidance says these tailored reviews should be appropriate for the size and nature of the organisation being reviewed and the significance of the organisation to the department. 

With a budget of £1.4 million, the Council is, in Whitehall terms, small beer. But its significance for the MoJ and its provision of prison places is much bigger. As an example, the introduction of the guideline on bladed articles and offensive weapons offences, which came into effect on 1 June 2018, is estimated to result in a need for around 80 additional prison places per year at a net cost of around £2.5 million. As a key driver of the MoJ budget, the Council deserves much greater attention than it's had.   

To be fair, back in 2017 the Council itself invited top Cambridge criminologist Tony Bottoms to review its work and it is making some changes as a result. But the Bottoms recommendations were limited to how the Council can best exercise its current statutory functions. My 2016 report for Transform Justice looked more broadly at what the Council should and could be doing if those functions were altered. I thought the House of Commons Justice Committee should conduct an inquiry into its role. But this tailored review might have done so too.

On Monday, alongside his announcements about  reconsideration of parole decisions, the Justice Secretary launched a tailored review of the Parole Board to examine further options for longer-term reform. He wants “to examine what further, more fundamental measures might be possible over the longer term, including the possibility of primary legislation. A tailored review of the Parole Board provides the opportunity to do that”.  

Much the same exercise is needed for the Sentencing Council.  Whoever did the tailoring of its review got their measurements wrong.