Parliamentary Undersight: The Strange Case of the Sentencing Council

 

If the Justice Secretary’s draft law aims to surgically remove the offending part of the Sentencing Council’s guideline, I hope she never operates on me.

It will block guidelines about obtaining pre-sentence reports (PSR) being “framed by reference to the personal characteristics of an offender” but doesn’t clarify which.   Race, religion or belief and cultural background are spelled out, but the explanatory notes to the bill make clear this is a non-exhaustive list.

So will the law prevent the guideline saying that a PSR will normally be considered necessary for any of the other cohorts currently mentioned:  pregnant women, young adults or people with chronic health conditions for example? 

Parliamentary Counsel won’t have had much time to draft the law, but it seems unsatisfactory. Unless that is, the Justice Secretary is uncertain about allowing what she calls differential treatment for these other groups. But a fast track procedure for law making is hardly appropriate for amending and debating these questions.  

In the longer term, the role of the Sentencing Council is being added to the long list of matters being reviewed by the Justice Ministry.  The Justice Secretary told Parliament “we have uncovered a democratic deficit” and proposes to fix it as part of the post Gauke sentencing reforms.  

It’s fair to say that until the last month, the Council has excited limited political attention over the 15 years of its operation. So what has been the Council’s relationship with Parliament and with government before the current brouhaha?

As for Parliament, the Justice Committee is always consulted about guidelines and generally responds. It periodically invites the Council’s Chair to talk about its work but the last of these "regular evidence sessions" was in  2021.  Additionally, shortly after his appointment, the current Council Chair Lord Justice William Davis did give oral evidence in December 2022 to the Committee's inquiry into Public Opinion and Understanding of Sentencing and spoke at an event to launch the inquiry report in November 2023. Davis also gave evidence to a House of Lords Committee inquiry into Community Sentences in May 2023.

At the December 2022 evidence session, the Justice Committee Chair told Davis he hoped " this will be the first of a number of constructive discussions that we will have". But there don't seem to have been any formal evidence sessions focussed on the work of the Council since, at any rate public ones.  

This is despite the Council’s objective of increasing parliamentarians’ understanding of their work “including by discussing how best to establish regular evidence sessions with the Justice Committee”. The Council was  planning to attend regular evidence sessions from the first quarter of 2022 but appearances in Parliament  since then have been infrequent and ad hoc, providing limited opportunities for scrutiny. 

As for MPs more broadly, Professor Tony Bottoms’ internal review of the Council in 2018 reported that it once held an awareness day in Parliament but “attendance by MPs other than those on the Justice Committee was poor.” The Council rejected Bottoms’ suggestions that they hold a further event for MPs and to open itself up to a television documentary about its work. Given the election of so many new MPs last year, the Council could certainly revisit the first of these ideas.

As for government, an official representing the Lord Chancellor attends Council meetings, presumably as an observer.

In 2016, the Ministry of Justice and Cabinet Office exempted the Council  from the need  to undergo the kind of formal regular review normally undertaken of arm’s length bodies. This was “due to its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary.”  (Incidentally, Robert Jenrick seems to have been a Parliamentary Private Secretary to the then Justice Secretary, Liz Truss, when that decision was made).

When in 2020, the Council itself consulted about what its priorities should be for the next five years, the Justice Committee and then Lord Chancellor responded although no other MPs.

The resulting strategy comprises five objectives, the third of which is that the Council “will explore and consider issues of equality and diversity relevant to our work and take any necessary action in response within our remit. One of the actions to achieve this is to “ensure any evidence of disparity in sentencing between different demographic groups is taken into account when deciding whether to develop or review a guideline by including this as a consideration in the Council’s criteria for developing and revising guidelines.” The controversial elements of the Council’s revised guideline on the imposition of community and custodial sentences in large part flow from this welcome commitment.

Back in 2016 I wrote what I hope was a constructively critical report about the Council for Transform Justice  and elaborated on it four years later. The second report argued for a fundamental debate about how the Sentencing Council can play a greater role than it currently does - as an expert body in the development of more effective sentencing law, policy and practice in England and Wales”.

I suppose we might get that debate now although in the wake of the unedifying political pile on during the last month I have my doubts.

 

Why the Justice Secretary is Wrong and Politically Inept on "Two tier Justice"

 

As the Guardian suggests, the government may be dipping their toe in the culture wars in their row with the Sentencing Council; but they may well end up drowning. Why?

First because they are so fundamentally wrong to accept the conservative view that long overdue and hard won efforts to address racial and other disparities in criminal justice amount to two tier justice.

Second because they have not defended the Sentencing Council, they lay themselves open to attacks on a range of other agencies who have started to take racial and other equality issues seriously. The College of Policing Race Action Plan sets out ways to improve outcomes for black people who work within or interact with policing; and the Crown Prosecution Service  action plan aims to tackle disproportionality in charging decisions.

For the Justice Secretary perhaps the biggest issue lies with probation, for which she is directly responsible. The Court Services Policy Framework issued in January 2025, under her watch,  provides guidance on the Bail Information Service which enables courts to make more informed decisions regarding the suitability of a defendant for bail. Lo and behold the key criteria to be taken into consideration for the identification of priority cohorts include

 • vulnerable defendants, such as those with mental health conditions and learning disabilities
•  young adults (18–25 years old)
•  women, pregnancy and maternity
•  defendants from ethnic minorities
•  transgender defendants

This is pretty much the list of cohorts to which the Justice Secretary has taken exception in the Sentencing Guideline. It seems inconsistent to say the least to decry "differential treatment" in sentencing while promoting it at the remand stage.  

The policy framework also includes the wholly sensible view that “to better understand the defendant, their offence/offending, capacity to desist or ability to comply with a sentencing proposal, it is vital that the pre-sentence report assessment considers the defendant’s background and culture and whether they have experienced trauma from experiences of racism or discrimination”. Is this something Ms Mahmood will now feel the need to overturn? I hope not.
If the Justice Secretary cannot support these kind of measures to address social inequality and discrimination, perhaps she is in the wrong job.

A Burning Issue

 

Two reports this week about HMP Forest Bank, the privately run prison in Manchester. Both the national Prison Inspectorate  and local Independent Monitoring Board are broadly in agreement about the state of the Category B reception and resettlement prison- rising rates of violence and use of force, continuing problems of drugs and concerns about the attitudes of some staff members.

Surprising to my mind is the fact that neither report makes reference to one striking fact about the prison: according to a parliamentary answer, last year there were 137 cell fires at the prison, the highest number of any establishment in England and Wales, and up from 91 the in 2023. There were just 13 fires there in 2016.

The prison was subject to various enforcement notices from the Crown Premises Fire Safety Inspectorate in 2018, thankfully all complied with.  But it seems a major failing that the two main prison oversight bodies haven’t reported on last year’s troubling figures.

The Prisons Minister in the last government said that during 2024-25, “H M Prison & Probation Service will introduce an ignition-free Safer Vape Pen to replace the existing product, which is the source of approximately 80 per cent of fires set” across the prison estate. There does not seem to have been any announcement on this.

I know this is a topic I’ve banged on about before but it really deserves to be taken with the utmost seriousness.

 

A Distressing Report

 

Extraordinary levels of self-harm are reported among the women at HMP Eastwood Park today. In a distressing report, the Independent Monitoring Board (IMB) found that in the 12 months to the end of October last year “seven of the most prolific individuals were responsible for 4,204 incidents”.   Over a five week period, one prisoner subject to constant supervision used J-cloths as ligatures in excess of 80 times (14 times on one day).

The IMB were also deeply concerned that force was used on prisoners over a thousand times, double last year’s figure.

While staff were observed employing excellent verbal de-escalation practice in extremely challenging situations, the watchdog notes that “compassion burnout” together with injuries and attacks from prisoners during restraints “seemed to have affected the overall goodwill of some staff”.  Similarly, in one example, the prisoners became resentful when they were locked in while a segregated prisoner had their hour out of cell.   

The IMB tell the minister that it’s essential that individuals who prolifically self-harm are more evenly distributed throughout the women’s estate to help reduce the adverse pressure on the regime and staff in a single prison.

More significantly they argue that use of force could be reduced if more women with complex trauma, neurodiversity or serious mental health issues were diverted from the prison system altogether.

The report says that in the second six months of the reporting year, 21 women, both sentenced and on remand were referred for transfer to hospitals. 11 actually moved but eight referrals were refused by hospital trusts, as they “did not appear to meet their admission criteria”.  

The new Women’s Justice Board must surely address as a priority the questions of where the most vulnerable and challenging women should be placed within the prison system; and whether there are sufficient options for managing them outside where necessary.  

If there are not, some of the funds earmarked for prison expansion should be used to develop more appropriate community based and institutional alternatives for women; and legislation promised after the Gauke review should enable them to be used more easily.

Mixed Messages on Fire Safety in Prisons

 

I was surprised to read in today’s inspectorate (HMIP) report on HMP Styal that the 15 detached houses which accommodate most of the women prisoners there “needed urgent and significant investment to address fire safety concerns”.

Why the surprise? Because 18 months ago the Independent Monitoring Board (IMB) at the Cheshire prison noted in their 2022-23 report that the houses were “now fully compliant with fire safety regulations.” 

Prior to that, fire risk to prisoners was so bad at Styal that the Crown Premises Fire Safety Inspectorate (CPFSI) apparently issued an enforcement notice. According to the IMB report for 2021-22, “prison staff have endeavoured to reduce the fire risk for prisoners in the affected houses by implementing measures such as not locking them into their cells at night and completing a volumetric exercise on all prisoner property within the prison. This enforcement notice was withdrawn on March 22, 2022.”

Presumably this was because what HMIP today describe as “fire safety concerns” had been addressed.  For some reason the notice about Styal does not appear in the CPFSI enforcement register , although notices relating to other prisons do. 

While this may seem a technical matter, last year there were 26 cell fires at Styal. While most if not all are likely to have been in the prisons cellular units rather than the houses,  there were only 6  in the establishment in the preceding year.

Given the scale of potential consequences of fires, it’s surely important that the adequacy of fire safety is properly monitored by oversight bodies.  HMIP seldom mentions it in their reports, IMB’s more so but inconsistently.  In their report on HMP Wayland last week, the IMB expressed dissatisfaction at “the failure to provide a significant number of additional anti-barricade cells, which were promised following a very serious cell fire some years ago.”

As for CPFSI, it’s responsible for ensuring that fire safety standards are maintained by regulating compliance with the Fire Safety Order in over 10,000 Crown Premises, including prisons. But it’s under resourced to do that job effectively.

It’s a legal requirement to make all cells Fire Safety Compliant which the Prison Service have estimated would cost £1.4bn. But that was before one of the main contractors doing the work, ISG, went into administration so the bill will be higher.

It’s good news that the Prison Service has agreed with CPFSI that any of the 23,000 cells which currently don’t meet standards will be “taken offline” at the end of 2027 if they haven’t been “remediated” and do not have the necessary in-built smoke detection.  

But given funding and population pressures, this remedial work needs much better oversight to ensure progress is being made. HMIP, IMBs and CPFSI need to get their act together on this.

The Public Accounts Committee are looking at the condition of government properties and should recommend that they do so.  

Council Attacks

 

What on earth is Justice Secretary Shabana Mahmood doing recommending that the Sentencing Council “reverse” its new guidance on the imposition of community and custodial sentences?

She seems to object to the idea that a court should normally ask for a pre-sentence report in the case of an offender belonging to a cohort at risk of unfair outcomes.

We know that for certain crimes at least, ethnic minority defendants are treated more harshly in the courts than white; and that the pains of imprisonment are particularly severe for women, for young people and for other groups.

I’d have expected a Labour Justice Secretary to welcome guidance which seeks to address these disparities in a constructive manner. But instead it has caused her “displeasure” because she does “not stand for any differential treatment before the law, for anyone of any kind”.  The Prime Minister appears to have backed her in a Delphic tweet saying “the British people rightly demand the security of safe streets and justice done. We’ll sort out any system not working in their interests”.

I don’t imagine Mahmood consulted her cabinet colleague David Lammy whose 2017 review found pre-sentence reports “may be particularly important for shedding light on individuals from backgrounds unfamiliar to the judge.”  Instead she accepted the absurd claim from her Conservative shadow that this was irrefutable evidence of two tier justice. If anything it shows the opposite.

I’ve not always been the greatest fan of the Sentencing Council, but this guideline is the best work they’ve done. It strongly encourages courts to use prison as a last resort and should help to replace useless short jail terms with more constructive sanctions outside.

If the government cannot hold the line against an opposition assault about pre -sentence reports, I don’t hold out much hope for the Gauke review.   

Jury's Out

 

I was supposed to have my first experience of jury service this week. Having blocked out my diary for a fortnight as required, I reported dutifully at the Crown Court at 8.30 on Monday morning. The waiting room was soon packed with almost two hundred people, most of whom were slowly but relatively surely allocated to particular courtrooms.

Sitting juries went back to trials which started last week, new ones were randomly distributed among the remaining courtrooms, initially in groups of 16 before being whittled down to 12. The waiting room gradually grew less crowded as trials got underway but plenty of people were still there when my group was told we could go out for lunch.

When we came back, we sat around until 3.30 when a Jury Officer gathered us together to say there were “complications” in the case and we could go home and should return tomorrow at 10 a.m.

On Tuesday, other than a roll call on arrival, there was no communication with my group until noon when we were told we could go home. Our trial was apparently “ineffective”, but they couldn’t say more.

Wednesday saw a more promising start as we were reallocated to a trial in a different courtroom. We would be needed for two to three days- maybe stretching into early next week. An hour or so later we were summoned to sit in the assembly area for those about to go into court. Our time had seemingly come.

Sadly not. Two trials scheduled for our new courtroom had “cracked” – in one the defendant had pleaded guilty, in the other they hadn’t turned up.

We could go home- and much to our surprise were told our service was now over. Apparently, sometimes they summon more people than they need and have spares.  We were told how to complete our expenses forms and that we won’t have to do jury service again for two years. As one of the spares, I headed home to complete my expenses.  

Although I met some interesting people, it hasn’t been the most satisfying of experiences. I’ve no idea how typical it is. I may just have been unlucky.

Lord Leveson’s review of the courts is looking at “how processes through charge to conviction/acquittal could be improved to maximise efficiency. This includes looking at the processes of the courts but also those of partner agencies in the criminal justice system which affect the efficiency of the criminal courts”.

I don’t know if he’ll consider the experience of jurors at all. I for one hope he does.