Sentencing Trends

 

 

To give effect to its manifesto commitment to introduce “ tougher sentencing for the worst offenders”, the Government has sought both to ensure that more of a sentence is served in prison and to provide courts with options to impose longer terms. It moved quickly to shift the automatic release point from halfway to two-thirds on fixed term sentences of 7 years or more imposed for serious offences- something it had tried and failed to do before the December 2019 election.  

While the change made by the Release of Prisoners (Alteration of Relevant Proportion of Sentence)Order 2020 applies to people sentenced after 1 April 2020, emergency legislation in February made new restrictions on the early release of terrorist offenders retrospective with current and future cases henceforth being considered by the Parole Board at the two thirds point. The Independent Reviewer of Terrorism Legislation  was concerned that as a result  terrorists who served their full sentences would be released unconditionally without licence.

May saw a more comprehensive Counter Terrorism and Sentencing Bill propose a new 14 year minimum Serious Terrorism Sentence with an extended licence period of up to 25 years and restrictions on any early release for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence. The Bill is still in Parliament.

In July a limited consultation was launched on doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years. It was raised from 6 to 12 months only in 2018. The large majority who responded were apparently in favour, but the MoJ has refused to publish the responses. Legislation is likely to follow next year as part of a raft of measures proposed in September’s White Paper A Smarter Approach to Sentencing.

These will abolish automatic halfway release for a yet wider range of prisoners, increase tariffs for discretionary life sentences, and widen the scope of whole life orders which involve no prospect of release. There are plans to prevent courts departing from minimum mandatory prison terms for repeat offenders.

Alongside these more punitive measures, the White Paper includes some more constructive plans to strengthen community based supervision. The Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag came into force in October and another go at Problem Solving courts, a return for deferred sentences and more treatment options are promised.   

If and when enacted, any substantive changes to law will be integrated into the new Sentencing Code which came into force on 1 December, consolidating existing sentencing procedure law into a single act and making the daunting technical task of sentencing significantly more straightforward for judges and magistrates.  It is hoped that the Code will ensure that Sentencing Guidelines are easier to apply than hitherto.

The Sentencing Council has published two new guidelines, on sentencing offenders with mental disorders and on firearms offences. While the former is something of a missed opportunity, the latter breaks new ground by giving explicit reminders of the disparity in punishments being imposed by the courts on white, Asian and black offenders.

This follows research published earlier in the year which found that for three drug offences, when taking into account the main sentencing factors, the sex and ethnicity of offenders were associated with different sentencing outcomes- for example, the odds of a Black offender receiving an immediate custodial sentence were 1.4 times the size of the odds for a White offender.

Drawing  on the Court of Appeal case of Manning, the Council also  published a note reminding courts to bear in mind the practical realities of the effects of the pandemic, and consider whether increased weight should be given to mitigating factors, given that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.

After ten years of work, the Council has conducted a wide ranging consultation about its future priorities. My report for Transform Justice argued that it should be doing much more to limit the use of imprisonment in line with its duty to consider the costs and effectiveness of sentences and that it may need a wider remit to fulfil its potential. This may not be easy to achieve given the “perceptible hardening of the public and political attitude to crime” noted by the Lord Chief Justice in a significant if somewhat depressing speech in December.  Real or not, the perception of a hardening may impact on the root and branch review of parole which got underway in October. 

Two voluntary sector initiatives may help counter the punitive trend. The Sentencing Academy aims to inform public debate and promote effective sentencing practice. It has reviewed the 20 year old scheme which enables victims to make a personal statement in court. In other jurisdictions victims who use the scheme are more satisfied with the sentencing process and there has been no systematic increase in sentence severity as a result- but we don’t know if that’s the case here so a comprehensive evaluation is needed. 

The Prison Reform Trust has established an Independent Commission into the Experience of Victims and Long-Term Prisoners which looks to stimulate fresh thinking on the range of issues from sentencing to parole, particularly in respect of the growing number people serving very long sentences. The experiences of those receiving long sentences when young people have been closely studied by Ben Crewe and colleagues.    

Something is certainly needed to put the brakes on the use of imprisonment which is projected to grow by 25% over the next six years, with demand for places highly likely to outstrip supply.   In the year to June, the average custodial sentence length was the highest in the decade at 19.5 months for all offences and 22.0 months for indictable offences. The custody rate for indictable offences was also the highest in a decade at 35% up from 32% the previous year.

The increases are likely to have been influenced by the prioritisation of cases during the pandemic. The public health emergency has of course had many and various impacts on the work of courts. One minor one seems to have been a delay in progressing the televising of judges’ sentencing remarks which was announced in January.  I was against this back then but might have been more positive had I known about the lockdown to come.