Yet More Council of Despair

Hopes that penal policy might be taking a less punitive turn took a blow this week when the Sentencing Council issued its long awaited guideline on dealing with offenders who fail to comply with court orders in the community. The Council accepts that the guideline, in particular the part on Suspended Sentences, Community Orders and Post Sentence Supervision “could have an impact on the prisons, with more offenders being sent to custody than at present”.  They don’t really know because the resource assessment the Council is required to do is even more of a guesstimate than usual. But why at a time when ministers are looking to encourage alternatives to short prison sentences is the Council requiring courts to adopt a more robust approach to sentencing of breaches?

A generous interpretation might be that stronger consequences for non- compliance will give courts and the public greater confidence in community based alternatives to prison and help to expand their use. More likely is a view that flouting court orders simply deserves less tolerance than it has in the past. It’s more cocking a snook at authority requiring punishment rather the sign of a problem needing to be solved. 

The less offenders adhere to their sentence, the greater the punishment will be. Under the new guideline, wilful and persistent non-compliance with a community order will result in a prison sentence -even where the original offence was not serious enough to merit custody.

To be fair, after consultation, the final guideline now encourages courts to take into account factors such as an offender’s mental health difficulties or personal circumstances when deciding if their level of compliance hitherto should be categorised as low, medium or high. It’s not quite clear how courts will calibrate the presence of what the guidelines call factors impeding compliance; but the focus on why an individual may not have followed their order is welcome.

Less so the Guideline’s restriction on what courts should and shouldn't take into account when deciding whether to activate a suspended sentence. The law says a court must do this in the event of a further conviction or failure to comply with a supervision requirement “unless it would be unjust in all the circumstances.” The Council doesn’t want courts to consider all the circumstances however.  Yes, they are able to consider any strong personal mitigation, whether there is a realistic prospect of rehabilitation or whether immediate custody will result in significant impact on others. But only new and exceptional factors or circumstances “not present at the time the suspended sentence order was imposed should be taken into account”.

The House of Commons Justice Committee argued in their Consultation Response that faced with sending someone to prison for breaching a suspended sentence, courts shouldn’t have to sit on their hands if the original offence had fallen short of the custody threshold. The Committee were particularly concerned about cases that had been sentenced before the Council issued its guideline on the Imposition of Community and Custodial Sentences, which has sought to prevent courts suspending prison sentences as a tougher form of community sentence. 

It’s hard to believe some aren’t still doing so. Indeed the Sentencing Council Chairman wrote to Judges and JPs as recently as April, because he thought they were. So the Committee’s point still has force.  But the Council won't accept it. 

A second proposal by the Justice Committee has also been rejected by the Council. The Committee thought the guideline should require sentencers to consider whether supervision by the probation services had been of sufficient quality to be effective and take into account “any shortfall in the quality of supervision by probation services which may have contributed to the likelihood of a breach”. The Transforming Rehabilitation reforms have probably produced many such cases.  

Some probation failings will of course have allowed errant offenders to escape breach proceedings for too long. But in almost half the cases inspected in an enforcement study, the person under supervision had not received a sufficient induction, with the Community Rehabilitation Company  then missing the opportunity for early, effective engagement.  The Council take the view that “assessing the quality of offender management is not within the remit or responsibility of sentencers and do not agree that the guideline should impose such an exercise”.

Such a view is symptomatic of the narrow approach to their remit that the Council has often taken. More worrying on this occasion is the way that they are championing not a fairer or more effective approach but a more "robust" one. The Council was supposed to save sentencing from the politicians not to adopt their language and tone.