Introduction
The Council welcomes the Justice Committee inquiry and subsequent report into Public Opinion and Understanding of Sentencing. The Council’s response to the various recommendations which relate to it are set out below.
It is worth making the point that public confidence in sentencing is dependent on a wide range of factors that cut across the activities of a range of bodies and agencies within the criminal justice system. Many of those factors will be out of the Council’s control and/or its remit. The Council welcomes the report’s recognition of the challenges that can be faced in promoting public confidence in what can be a complex and changing political, social and legislative landscape.
The Council is committed to doing what it can to address those matters for which it is responsible and has considered the Committee’s report in detail. This response outlines the Council’s views on the specific recommendations that relate to its work.
It is also important to note that, while the Council is committed to promoting public confidence in sentencing, its duties are broader than just ensuring confidence in sentencing. The Council must ensure that all of its statutory duties are properly considered and that any guidelines that it produces, or activities which it undertakes, reflect legislation as set down by Parliament, and that sentencing practice is proportionate, coherent and consistent.
Public understanding of sentencing
We welcome the Sentencing Academy’s work reviewing the terminology of sentencing and we look forward to its findings. We encourage the Government to work with Sentencing Council and the judiciary to explore whether sentencing terminology can be simplified and made more accessible. The example set by the judiciary in the Netherlands and their project ‘plain language’ provides a useful model of how this could be done. (Paragraph 30)
Response
Every judge has a duty under section 52 of the Sentencing Code to give reasons for and explain the effect of any sentence in ordinary language. It is not part of the Sentencing Council’s function to give guidance to the judiciary on how that duty should be discharged. Since the duty involves the exercise of an independent judicial function, it is not a matter for Government either. Any steps in relation to how judges pass sentence must be a matter for the judiciary whether via judicial training or some other means.
Terminology within guidelines reflects statutory language determined by Parliament who pass legislation, and existing legal terminology. While the Council intends guidelines to be accessible and understandable, it is imperative that they are reflective of legislation and case law.
To facilitate understanding and ensure guidelines are universally accessible, the Sentencing Council website currently includes a dedicated section for members of the public on ‘How Sentencing Works’. This section uses simple language to explain a range of criminal justice matters such as types of sentence and the purposes of sentencing.
The Council is of the view that any fundamental revision to terminology would best be initiated and led by Government who would be responsible for bringing forward any legislative proposals to amend the terminology currently in use. Were this to be something that the Government wished to consider the Council would be willing to engage with it in support of any work it may wish to undertake.
There needs to be a step-change in the Ministry of Justice, the Attorney General’s Office and the Sentencing Council’s efforts on public legal education. HMCTS should develop a programme which enables secondary school pupils to be able to visit magistrates’ courts and Crown Courts to find out about the criminal justice system and sentencing. Education about criminal justice procedure, including sentencing policy and practice, should be incorporated into the National Curriculum for Citizenship Education. The Sentencing Council should look into producing a Massive Open Online Course (MOOC) on sentencing that could enable members of the public to learn about how sentencing works in England and Wales. Resources on sentencing and criminal justice could also be added to the Oak National Academy Online teaching resources. The Ministry of Justice and the Sentencing Council should consider producing a stand-alone public-facing website dedicated to providing the public with up-to date information on sentencing trends in England and Wales. (Paragraph 37)
Response
The Sentencing Council has previously contributed to and supported a number of public legal education initiatives, including a MOOC developed by the Judicial Office for England and Wales, and contributes to and reviews content for the Young Citizens programmes for use in secondary schools. The Council considers that supporting external initiatives such as these is the best use of its limited resources; it does not itself have the resources or expertise to offer a full public legal education programme.
To support public understanding of sentencing the Council has also been working in partnership with the Judicial Office to develop a new, up-to-date version of ‘You be the Judge’, which uses short video stories to help explain to the public how sentencing works. We know that the original version was a highly effective public education tool and we are confident the enhanced, updated tool will facilitate greater public understanding of the sentencing process.
Due to its independence the Council does not consider it would be appropriate to produce a stand-alone website in partnership with the Ministry of Justice to provide up-to-date information on sentencing trends. A further response to the latter point, as it relates to what the Sentencing Council might do in this area, is included in relation to other data-related recommendations.
It is vital that the public has access to current data on sentencing practice so individual cases can be understood in their broader context. The MoJ should review its statistical releases on sentencing to ensure that they are presented in a format that is easily accessible and relevant to members of the public. Statistical releases should be accompanied by analysis and commentary. The MoJ should also revive the digest of criminal justice statistics and ensure that this reflects trends in sentencing and issues subject to public debate. The Sentencing Council should provide independent and impartial analysis on significant trends in sentencing to inform public debate and government policy. (Paragraph 43)
Response
The Sentencing Council currently signposts information on relevant statistical publications on its website and will consider what more can be done subject to resource considerations. While there may be potential for more information to be published, the Council considers that providing analysis of trends in sentencing could conflict with the non-political status of the Council. The choices of what data are included or what trends are to be analysed, or conclusions reached as to significant causal factors, could be interpreted as taking a view one way or another on the merits of any legislative initiatives which might have had an effect on those trends. The Council considers the academic community is likely a better provider of any such analysis.
The Crown Court Sentencing Survey provided a rich dataset on how sentences are determined. It should be possible to use the Common Platform, the new case information system used in the criminal justice system, to produce a valuable dataset on sentencing without imposing additional burdens on the courts and the Sentencing Council. The Ministry of Justice, HMCTS and the Sentencing Council should explore how the Common Platform can be used to produce useful sentencing data that can be presented in a way that is accessible to the public. (Paragraph 48)
Response
The Common Platform will not (and was never intended to) collect all the guideline-specific information the Council needs for analytical purposes, which includes information relating to culpability, harm and aggravating and mitigating sentencing factors, which vary considerably across guidelines.
Collecting the detailed guideline-specific data required by the Council via the Common Platform would still require sentencer input as this is not data that has ever been collected other than via the Sentencing Council’s own data-collections. To do this via the Common Platform would require significant changes to both the Common Platform and the court processes related to it. It is also unlikely to be any less resource-intensive for courts than the current approach used by the Council for its bespoke surveys and may even be more resource-intensive. Both HMCTS and the Council are keenly aware of the need to avoid placing greater administrative burdens on the system generally, but particularly at present given the current pressures on the system whilst it deals with the current caseload.
The Council and HMCTS have been discussing for some time what potential there may be to link sentencing surveys to the Common Platform in a more seamless way that may reduce burdens on the courts. The Council is also continuing to explore what additional data may become available via the Common Platform in the future and to what purpose it could be put. It will continue to consider and conduct other research exercises to gather sentencing information in the meantime.
Data on sentencing in individual courts will help the public to understand sentencing trends in their local area and is likely to help to stimulate local media interest and reporting. The Sentencing Council and the Ministry of Justice should work together to ensure that the statutory duty to publish information on sentencing in individual courts is fulfilled. We would ask that the Ministry of Justice and the Sentencing Council provide an update on what progress has been made on fulfilling this duty six months after the publication of this report. (Paragraph 50)
Response
The Council has considered how it can fulfil this duty on a number of occasions in the past. Presenting outcomes at Crown Court locations, or at local criminal justice area levels in a meaningful way is inherently complex as sufficient data is not available to control for all the relevant factors that are taken into account in sentencing. Without the additional context of these factors, statistics cannot be interpreted meaningfully and are likely to be misconstrued, potentially undermining rather than improving public confidence. This presents a significant tension between promoting awareness of sentencing at a local level and increasing public confidence.
The Council is continuing to explore how these challenges to delivering the statutory duty in a meaningful way can be addressed. The Council has already made a specific commitment to explore this as part of its current five-year strategic plan, which is still in the process of being delivered.
Public opinion of sentencing
Given the potential importance of public opinion in influencing sentencing policy, the Government should consider adopting a structured engagement plan to gather information on the public’s views on sentencing. Whilst we recognise the value of public polling exercises, we recommend caution be exercised in relying exclusively on the findings of ad hoc polls as an evidence base for sentencing policy decisions. The MoJ should conduct regular, structured, deliberative engagement exercises with members of the public as part of its policy development process. The Sentencing Council should also consider whether it could use structured deliberative engagement exercises as part of its public engagement work and as part of its consultations on draft guidelines, including a full range of offending scenarios, such as violent and sexual offending, if relevant. (Paragraph 81)
Response
The Sentencing Council seeks to understand public opinion through a number of mechanisms and in addition to its public consultations in relation to each guideline has undertaken research with members of the public on matters such as public knowledge and attitudes to sentencing. As noted earlier in this response the updated ‘You be the Judge’ tool which will be available shortly will also facilitate greater public understanding of the sentencing process.
We can see how deliberative engagement exercises may have value in identifying broad opinions and understanding of topics such as sentencing policy and the role and purpose of sentencing. However, it is not immediately apparent that this approach would benefit the technical consultations the Council undertakes where the Council is seeking views on specific proposals.
The Council will consider, as part of its ongoing work to encourage a greater range of responses to its consultations whether structured deliberative engagement exercises, or similar, may be of benefit.
The Sentencing Council should be empowered to do more to encourage public engagement with its consultations on draft guidelines. For example, it should explore whether it could use the approach of using online questionnaires adopted by the Sentencing Guidelines Commission in the Netherlands to encourage more responses from the public to their consultations. Online questionnaires would appear to be a more accessible form of engagement than a simple call for written evidence. We would also recommend that any expansion in the scale of public engagement also includes the use of deliberative engagement tools similar to the public dialogue used as part of this inquiry. (Paragraph 100)
Response
All Sentencing Council consultations are now available as online questionnaires. As part of one of the objectives the Council set itself under its five-year strategic plan to make consultations more accessible they are now accompanied on our website with introductory material written specifically for public audiences.
We will consider the Netherlands model as part of our commitment to exploring other ways we communicate and engage with the public.
Public understanding of sentencing and public confidence in the criminal justice system
We would encourage the Ministry of Justice and the Sentencing Council to promote and disseminate the latest data and analysis on sentencing trends, including local data, to the media. (Paragraph 117)
Response
As noted earlier in this response (in relation to paragraph 43 of the report) the Council already publishes statistical information and bulletins, and resource assessments for guidelines. As was also noted above, the Council believes that there are risks with the Council providing analysis of such data.
The Council feels it is important that any such approach would need to consider how such trends and analysis could be presented neutrally to avoid undermining, rather than improving, public confidence in both the Council as well as sentencing more generally.
As noted earlier in this response, the Council will keep the recommendation at paragraph 43, along with the recommendation above, under review and look again at whether there are sentencing trends that the Council could usefully bring to the wider public and/or media attention in a non-contentious, impartial manner.