By Michael Caplan

With my position as  the defence practitioner on  the Sentencing Council  due to end shortly, the Council is currently looking for someone to take on the role for the next three years.

I have found it tremendously stimulating, enjoyable and extremely interesting. I have been able to put forward the defence view and debate issues surrounding sentencing with others stakeholders. I have made many friends on the Council. Discussions are frank but always conducted in a most friendly manner and my colleagues have always been willing to listen to my views. It really is an opportunity to help shape sentencing guidelines for the future.  The Council staff are most friendly and authoritative; they are always extremely helpful.

It is an opportunity I would wholeheartedly recommend.

Michael Caplan QC
Partner
Kingsley Napley LLP

 

Full details, including the candidate information pack, were made available on the Cabinet Office website.

The closing date for applications was midday on 4 February 2016.

 

Michael Caplan is a solicitor practising in the areas of domestic and international, criminal and regulatory law and is one of the few solicitors to have been appointed QC.

As well as having been a partner at Kingsley Napley for 30 years, he has been a part-time judge (Recorder) in the Crown Court for many years and is authorised to sit as a Deputy High Court Judge. Michael is also a chairman of the Police Appeals Tribunal, is on the Criminal Procedure Rule Committee chaired by the Lord Chief Justice and is a former chairman of the Solicitors Association of Higher Court Advocates.  He has written and lectured on a number of topics.

He was appointed to the Sentencing Council on 6 April 2013.

By Lauren Bowes, Senior Researcher

This month we began a targeted assessment of the impact and implementation of our theft and drugs guidelines, following the decision earlier this year to end the Crown Court Sentencing Survey (CCSS). The aim of this approach is to carry out focussed, “guideline-specific” data collection in both magistrates’ courts and Crown Courts. This approach enables us to delve deeper into offence-specific research questions and broaden our data collection coverage to magistrates’ courts for the first time. The research will be used for future guideline development as well as for assessing the impact and implementation of our guidelines.

Our data collection for the theft and drugs guidelines began on Monday 16th November, across 81 selected magistrates’ courts in England and Wales. Magistrates and district judges in each court have been asked to complete a data collection form for each theft from a shop or stall and for selected drug production and possession offences they sentence, where the theft or drug offence is the principal offence. This stage of data collection will end on 29th January 2016. We plan to collect data on shop theft in two stages so that we can see what, if any effect, the guideline has on sentencing outcomes.

The first two weeks of data collection are now complete and we would like to say a huge thank you to all of the magistrates, district judges, and court staff that are involved. Once we’ve finished the assessment, a report containing the key findings will be published on this site. We will keep you updated on the progress of this and similar pieces of work.

By Jill Gramann, Magistrate member of the Sentencing Council and Chair of the Kidderminster Bench from 2011 to 2013.

This article also appears in the next issue of the Magistrate magazine.

I am pleased to be the bearer of good news – the Sentencing Council has completed its work to create online sentencing guidelines for magistrates.

For the first time, you will have free and unlimited access to these guidelines in a genuinely digital format. The website will provide access to the full set of sentencing guidelines and is guaranteed to be up to date at all times. The site is designed to enable magistrates and others to have free access to all Sentencing Council guidelines as well as links to other material for their use when sentencing offenders in the magistrates’ courts.

The online MCSG allows users to search for offences using a highly sophisticated search tool, have multiple guidelines open simultaneously in separate windows and access newly revised explanatory materials to support decision making. A fines calculator and Judicial College materials such as the pronouncement cards and the bench book are also available on the site.

The new guidelines will be freely available from any device connected to the internet and will provide all the functions of any other website. Simply visit the Sentencing Council website and click ‘Visit the Magistrates’ Court Sentencing Guideline’ in the horizontal blue banner near the top of the page and it will take you to the online guidelines. Alternatively, you will be able to access the guidelines via a tile on eJudiciary.

There is no need to register or have a username or password – the information is freely available to anyone online on any device.

We have tested prototypes of this site with a group of magistrates, legal advisors and district judges who have volunteered to give us feedback as we developed this resource – their input has been extremely valuable and has helped us shape the site.

Online guidelines

It is important to understand the distinction between an app, which many magistrates are already using, and these online guidelines. Apps have been created primarily for environments where an internet connection is not available. Now that wifi is being rolled out in all magistrates’ courts, an app is no longer the best approach.

However, it is entirely your own choice whether to continue paying for an existing app or to switch over to our free online version.  Initially, commercial apps will not be accessible from court tablets so you would have to use your own tablet to access them.

Transition

Whilst not all magistrates have devices on which to use these guidelines and not all courts have wi-fi, we are continuing to supply alternative versions. Once wifi and the Bench Solution are in place in all courts, it should be noted that our pdf and hard copies will cease to be supported.

An offline version will be available later in September which will allow users to access this material without the need for an internet connection and you can still download the pdf and print off the necessary pages.

Revised explanatory material

If users are maintaining a hard copy of the MCSG, the online explanatory material (part five in the hard copy) has been substantially reorganised and amended and they may wish to print this section (pages 141 – 196 in the pdf) which can then replace part five in hard copies.

Updates

When new guidelines are published, changes will be flagged on the site in an Updates section. New guidelines will be added to the list of offences using colour coding to clearly distinguish between those guidelines which are yet to come into force and those already in force.

We will also update the offline version which will automatically notify all users when updates are issued and prompt them to download the new version. A pdf of the latest guideline to print will also be made available, which can be added to MCSG folders. Where there is high demand for printed copies, courts can contact the office of the Sentencing Council and black and white copies will be delivered to courts for circulation to those who need them.

Help and support

I am excited by the potential of this new resource and hope everyone will enjoy using it. If there is anything further you need, please do let the team know by emailing MCSGsupport@sentencingcouncil.gsi.gov.uk. Responses should take no more than 24 hours. If you require urgent assistance, please call 020 7071 5793.

This site will continue to grow and have new content and tools added so if you have suggestions of things that would be useful, please do get in touch.

Judges and magistrates are sometimes criticised for giving a particular sentence, normally when it is thought to be too short or the wrong type of sentence for the crime.

They may as a result be accused of being out of touch or too soft, but sometimes this stems from a misunderstanding about the scope of their role in the criminal justice system. They impose the sentence, but what comes before sentencing limits the options available, and what happens afterwards will be managed by other organisations, while the whole process operates within laws set by Parliament.

It is therefore worth looking at the context of sentencing, including the law which defines the many aspects of it, along with the roles of other organisations in the criminal justice system which will all influence sentencing.

Parliament and the law

The definition of offences and the maximum sentences for them are set by Parliament. Judges and magistrates must obey these laws in sentencing and work within their limits. Whether a maximum sentence is one year or 10 years, judges must still decide on a proportionate sentence up to that maximum. It is unusual for the maximum sentence to be given, as this would signify the worst possible example of that offence, so a sentence is set at an appropriate point between the least serious and the most serious examples. Minimum sentences for some offences are also set by Parliament, which must also be followed by the sentencer.

The law also defines which types of offence can be heard at which court – some are “summary only”, which means they can only be heard in the magistrates’ courts. Others are called “either way” or “indictable” offences and can be heard in either the magistrates’ courts or the Crown Court. The most serious are “indictable only” offences, which can only be heard in the Crown Court.

In addition, Parliament has laid down five purposes of sentencing – punishing offenders, reducing crime, reforming and rehabilitating offenders, protecting the public, making the offender give something back to people affected by the crime – that sentencers are obliged to follow. They will, however, vary the emphasis depending on the particular offence and offender they are dealing with.

Charging decisions

Sentencers are not involved in the decision about what offence a suspect should be charged with – that is down to the Crown Prosecution Service. For example, the CPS will have to decide whether a person charged with killing someone should be charged with manslaughter or murder, or following an assault, whether to charge the person with actual bodily harm or grievous bodily harm. They need to decide what the most appropriate charge is, but also which offence they think they can secure a conviction for. The scope of sentencing for murder and manslaughter and for ABH and GBH are very different, and if there is a conviction, the judge will have to sentence according to the offence charged.

There are several alternatives to formal charges available to police and CPS when dealing with adults, including cannabis and khat warnings, penalty notices for disorder, community resolution, simple cautions and conditional cautions. These are collectively known as out of court disposals and in such cases, the offender would not come to court.

Sentencing guidelines

When considering what sentence to give an offender, judges and magistrates must also follow any sentencing guidelines produced for the offence in question. These give broad sentencing ranges according to the seriousness of an offence, which are intended to give the flexibility to cover the vast majority of cases that come before the courts. However, if faced with an exceptional case, they can sentence outside the guideline ranges.

Guilty pleas

It is a long-standing practice that offenders should get a discount on their sentence for pleading guilty and the sentencer will apply this. The reason for the guilty plea discount is that it encourages offenders to plead guilty rather than have a trial – this saves victims and witnesses from having to testify and saves time and public money. There is a sentencing guideline which sets out the level of discount appropriate to the stage in the process at which the offender pleads guilty. The judge or magistrate will apply the discount in accordance with the guideline.

Type of sentence

Depending on the offence, the judge or magistrate will have a range of sentence types they can give an offender according to the seriousness of the offence and other factors such as the offender’s previous criminal record. Where a sentencing guideline exists, the court will refer to it to decide the sentence. The court can also ask the National Probation Service for a pre-sentence report to assist in finding the most suitable sentence for the offender.

Sentence types include prison, community sentences, fines and discharges. Some offences will have limited sentencing options. Some may carry a fine only, such as speeding, whereas at the other end of the scale the only sentence available for murder is life imprisonment.

Time spent on remand

Following arrest and charge, a person may be denied bail and kept in detention on remand before the trial and sentence. This time spent in prison will count towards an offender’s sentence if they are convicted and sent to prison, but the calculation of how much time counts towards the sentence is done by the Prison Service rather than the court.

How sentences are served

If someone is sent to prison for more than 12 months, the law states that normally they will spend half their sentence in jail and half on licence in the community, so the sentencer does not dictate when a prisoner is released. Similarly, the sentencer is not responsible for managing non-custodial sentences – that is up to the Community Rehabilitation Company for the area.

So, while the judge or magistrates will hear all the facts of the case and decide on the appropriate sentence for a particular offender, it is important to take into account the wider context that sentencers are working in, which limit the options for the sentence that a particular offender should get.

By Professor Paul Wiles With my tenure as analysis and research advisor due to end shortly, the Sentencing Council is currently looking for someone to take on the role for the next three years. It’s an opportunity I would wholeheartedly recommend. I have found it tremendously stimulating: the role is not only interesting, but is also influential within the Council. It involves advising on and overseeing a broad range of analysis and research that feeds immediately into the development of new sentencing guidelines, so that it directly influences how judges sentence. Recently it has meant helping to design and implement a new analytical strategy for the Council and steering its direction. It has also involved being the expert voice on empirical evidence, ensuring that analytical findings are properly understood.  I have also brought to bear international research and relevant non-sentencing research to debates so the bigger picture is seen and taken into account. In addition, the role has meant drawing on my contacts in the research community and my experience of working in government to ensure particular expertise can be tapped into and the wider policy context can be taken account of. The Council comprises members from a wide range of parts of the criminal justice system and has therefore given me the opportunity to work with some of the best judicial minds as well as senior police, CPS and academic representatives to name but a few.  

by Victoria Obudulu, Senior Statistician

Our approach to researching and analysing sentencing data will be changing from the end of March when we move from using the existing Crown Court Sentencing Survey (CCSS) to focusing on specific offences or other guideline subject areas.

The CCSS, the first survey of its kind to look at sentencing in the Crown Court, has been running for four-and-a-half years and during that time it has given us a huge amount of data that was never available before. It was therefore extremely valuable in providing data as the Council developed guidelines in its first few years of existence. Now that we have gained that data, we are evolving our analytical approach to develop more focussed and targeted “guideline-specific” data collection in both magistrates’ courts and the Crown Court.

This is a massive progression for the Council and there are bound to be challenges. In the months ahead, I’ll be developing alternative ways to obtain robust and representative information, while making sure this does not create a significant workload for sentencers and court staff.

Their help in providing the information needed for our research so far has been invaluable. For example, I have used the information collected on guilty pleas to show how the proportion of offenders who pleaded at the first reasonable opportunity and obtained the maximum reduction in sentence compared to those who pleaded much later and still received the maximum reduction. This has helped the Council’s current work on developing a new guideline for guilty plea reductions.

The survey has also helped the Council assess how guidelines are used in practice. I’ve used the data to estimate the sentence length before any guilty plea reduction and compared with guideline starting points and ranges. This enabled us to monitor whether sentences passed are within the category range. I’ve also used the data to produce detailed information about the types of robbery offences coming before the courts which was used in developing the robbery offences guideline.

The data has also been used outside the Council. For example, the Ministry of Justice (MoJ) has used it to inform their publication on women and the criminal justice system: https://www.gov.uk/government/statistics/women-and-the-criminal-justice-system-2013

I’ve used a number of data sets during my time as a government statistician but none have been as rich and interesting as the CCSS. The dataset is huge; it includes over 2,000 variables and as you can imagine, sometimes it’s a bit tricky identifying the appropriate variable to use for analysis.

Working without the CCSS will be a major change for us, but the new approach is also an exciting evolution; it will give me the opportunity to obtain and analyse data that was not available or practical to collect on the CCSS. For example, it will enable us to zero in on providing evidence for starting points and category ranges and improve evaluation of the effect of guidelines on sentencing.

Although the survey will end on 31 March, I’ll still be processing the data until June. The Council has collected data since October 2010 so it’s a very rich and useful data source on sentencing decisions and the factors used in reaching them. The Council is therefore keen to make the best use of all the data collected and ensure it is available on its website for academics, researchers and other interested parties.

Data for sentences passed between October and December 2014 will be coming through at the end of the month. I’ll run extensive data cleansing before matching the data to administrative data from the MoJ. Once that’s done, I’ll create cleaned up and consistent versions of the variables I need for further analysis and then the data will be ready to use.

The main published output will be the 2014 annual publication which will be published on 25 June. I’ll also publish anonymised underlying data at the same time so interested parties can do their own analysis.  I’ll continue to use the data to inform development of future guidelines, the sentencing of youths and monitor and assess the impact of the drugs guideline in sentencing drug mules.

As we move from the existing approach to a new one, we expect to be able to produce even more specific and targeted analysis and research to support the development of new sentencing guidelines and monitor the existing ones. We are very grateful to judges, magistrates and court staff in helping us to achieve this.

 

 

Recent trials for sex offences committed between the 1960s and 80s have raised many questions about how those convicted of historic offences are dealt with by the courts and how the consequences of such a passage of time between offence and sentence should be considered.

The basic position when an offender is sentenced is that it should be according to the law at the time the offence was committed, not the law at the time when they are sentenced. This has been reinforced by Article 7 of the European Convention of Human Rights.

It is a general legal principle that the law should not be applied retrospectively – so that people are able to know the penalty for an offence. Society – and as a result, the law – changes and so it would be entirely unfair to, for example, ban smoking in cars then prosecute those who did it before it became illegal.

Sentence levels have generally been increasing over the past few decades and changes to the law relating to sex offences are a good example of this trend. This reveals much about how attitudes towards these offences have changed over time.

For example, sentencing for the offence of indecent assault on an underage girl has undergone several changes to sentence levels over the years. Between 1957 and 1960 the maximum was two years’ imprisonment. It then changed in 1961 to a maximum of five years if the victim was under 13 years old, and in 1985 it increased again to 10 years. After that, the  Sexual Offences Act of 2003 redefined sex offences and indecent assault was replaced by new offences such as sexual assault and assault by penetration. While the maximum sentence for sexual assault remained at 10 years, it increased to 14 years in cases where the victim was under 13, and assault by penetration was given a maximum sentence of life.

Some sentence levels have also decreased. If someone had been sentenced for murder in the early 1960s, they could have faced the death penalty and some may think that if people have to be sentenced as the law was at the time of the offence, they therefore should get the death penalty. However, the entire sanction has been abolished. In short, it is no longer legal for anyone to be executed in any circumstances, so even if it applied at the time of the offence, the type of sentence cannot be resurrected and used today.

Unlike sentencing for recent offences, there were no sentencing guidelines for judges to refer to in England and Wales until after the Criminal Justice Act 2003, although guideline judgments were used before then. In sentencing offenders for historic offences, judges will use current sentencing guidelines for the purposes of assessing the harm to the victim and the culpability of the offender but, as mentioned, the law only allows them to pass sentences within the maximum sentence that would have been available at the time.

Another aspect of current practice that is applied to historic offenders is inclusion on the sex offenders register. While it was set up in 1997, offenders who committed sexual offences before the register was created will still be subject to its requirements.

In some cases, in particular if there has been a long period between the offence taking place and a conviction and sentence, the offender may be quite elderly. Judges are not obliged to take that into account when sentencing but may do so, depending on the circumstances, for example if they are very ill or frail.

At the other end of the age scale, judges have to take into account the youth of an offender at the time of the offence. In some cases, the offence will have been committed while the offender was under 18, but they are sentenced after they have become an adult.

For example, in 2012, Gary Dobson and David Norris were convicted of the 1993 murder of Stephen Lawrence. While they were 36 and 35 years old respectively when sentenced, they were 17 and 16 years old at the time of the offence and therefore had to be sentenced as juveniles and according to the law at the time. This meant that the starting point for the minimum prison term was 12 years – as it was for juveniles in 1993 – as opposed to a starting point of 30 years had they been sentenced as adults in 2012. They received minimum terms of 15 years and two months and 14 years and three months respectively.

In sentencing, Lord Justice Treacy said:

“…the law dictates that I must sentence you by reference to your age and maturity at the time of the crime. I cannot sentence you as the mature men you now are. In addition I must sentence you in accordance with the practice in force before the coming into force of Schedule 21 of the Criminal Justice Act 2003 which now governs sentencing for more modern murders.”

In essence therefore, while the law at the time of the offence sets the scope of sentence lengths, a modern approach to the assessment of an offence’s seriousness is used through sentencing guidelines, while other appropriate current practice will also be applied.

Reports about the sentencing of criminals sometimes refer to them as “walking free from court” if they are not sent to prison. This gives the false impression that unless someone is given an immediate jail sentence, they do not face any punishment or other consequence as a result of the offence they committed. This is not only wrong, but suggests a lack of understanding of what sentencing aims to achieve and the nature of sentences other than immediate custody. If an offender is given a community sentence, they have to comply with up to 12 restrictions on them such as doing unpaid work for up to 300 hours, keeping to a curfew, a ban from going to particular places or doing certain activities or supervision by the National Probation Service. A suspended sentence comes with similar restrictions and, if they commit another crime or don’t keep to the requirements, they can be sent to prison. Even if offenders get a conditional discharge, if they commit another crime they could find themselves back in court to be sentenced for the new offence, and the original one. And of course, once convicted they will have a criminal record, which can limit offenders’ freedom in many aspects of their lives, such as finding a job since most employers now ask potential employees whether they have any previous convictions – which they are legally obliged to reveal. Those with a criminal record may also find it difficult to secure a mortgage, get insurance or travel and work abroad. Sentencing is about more than just punishment. Parliament has set out five purposes which judges must consider when sentencing an offender. One of these is indeed punishment, but there are wider considerations. It is concerned with reducing crime – both preventing the offender from committing more crime and putting others off from committing similar offences. It is about reforming and rehabilitating offenders – changing an offender’s behaviour to prevent future crime. One way of doing this could be to require an offender to have treatment for drug addiction or alcohol abuse, or undertaking a sex offender treatment programme which can last up to three years. A further purpose is to protect the public – keeping them safe from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison or, if they are not in prison, restrictions on their activities or supervision by probation. It is also about making the offender give something back to people affected by the crime – this could be, for example, by the payment of compensation or through restorative justice. The judge or magistrate will need to consider what emphasis should be given to each of these purposes when sentencing. Sometimes prison will be the appropriate sentence, but sometimes other types of sentence will be more appropriate depending on the facts of the offence and the specific offender. The “walking free from court” concept really gives the impression that it is jail or nothing, which does not help with an understanding of how sentencing works and what it aims to achieve. There are times when it can be said legitimately that someone has walked free from court: this is when they are acquitted – that is, found not guilty of an offence. Someone could also leave court with an absolute discharge for a very minor offence, which means the court decides not to impose a punishment because the experience of coming before the court has been punishment enough, but they would still get a criminal record. Any other sentence puts restrictions on an offender’s freedom in one or more ways.

You may have noticed that the Sentencing Council website looks a bit different. The reason is that we have moved the content of the site to a new system which helps us update it more regularly and provide more useful items.

The system we are using is WordPress which is used by nearly a quarter of the top 10 million websites in the world. It will enable us to keep content fresh and will give us the chance to use more tools on the internet to keep in contact with you and provide you with what you need.

So what’s new? We have created a new publications area which helps you find the document you want with the fewest possible clicks. Simply choose the type of publication you are interested in – for example ‘definitive guideline’ or ‘research’ – and choose a second filter specifying the topic if you wish – for example ‘dangerous dogs’ or ‘assault’. You can also search by typing the title into the search box and there is a date filter if you know when something was published.

We have also created several short videos with Council members talking about how they use guidelines and how they approach sentencing.

The site also now has this new blog section where we will be posting articles every couple of weeks on topical issues or events. We welcome your feedback on these articles in the comments section. You can also subscribe to these pages so that you receive an alert when new content is added.

Our new head of office has also started her own ‘head of office’ twitter account @ClaireFielder where she will keep contacts updated about the latest activities and events in the office.

We hope that you enjoy the new site and find everything you’re looking for. Please do contact us with your feedback.