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Church of England Board for Social Responsibility
Response to
Making Punishments Work
Introduction
The terms of reference of the Church of England Board for Social Responsibility
require it ‘to co-ordinate the thought and action of the Church in matters affecting
the life of all in society’. The Board reports to the Archbishops’ Council and,
through it, to the General Synod.
The Board warmly welcomes the Government’s decision to issue the Consultation
Document
Making Punishments Work. The Board, and its Home Affairs
Committee, has been involved in the sentencing review from the beginning. The
board staff member responsible for criminal justice, who is Dr. Peter Sedgwick, was
on the external reference group of the review, and Mr. John Halliday spent a day
with members of the Committee early on in the review. The Committee
subsequently submitted a response to the review in November 2000, which is
acknowledged on page 76 of Making Punishments Work. In our response to the
final document, we will follow the format set out in the letter from the Sentencing
Framework Implementation Team, and answer a selection of the questions in turn.
There are some questions, which are technical by their nature, and where we feel
that we have insufficient knowledge to do justice to the question. Our response will
concentrate on the issue of jurisprudence, and the principles of sentencing, which is
an appropriate subject for the Church of England Board for Social Responsibility.
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Replies to the Questions.
1.
Is the case for change sufficiently strong to justify wholesale reform of the
sentencing framework?
This is a crucial question. Making Punishments Work spends the first chapter
justifying the need for change, and argues that the Criminal Justice Act 1991 was in
some respects a " failure." Given that this Act has been the cornerstone of much of
the penal policy in England in the last decade, this is a major admission. Paragraph
1:34 says that the Act adopted too pure a "just deserts" approach, in which the
offender was sentenced on the basis of the seriousness of that offence alone and the
offender's culpability for it. Paragraphs 1: 34-36 claim correctly that " an attempt in
the early 1990s to construct a new framework failed, rapidly, to achieve its purpose.
Substantial further erosion has taken place since, yet no new vision has been put in
place of the original. The result is a muddle, which is not good for consistency,
public understanding, or a sense of common purpose amongst the various agencies
involved in sentencing."
There is great truth in this statement, but the analysis must be done carefully. If the
entire framework is to be changed, then it needs to be integrated into the many other
changes, which are taking place in the Criminal Justice system. Clearly Lord Auld's
report on the Criminal Courts, the reorganization of the National Probation Service,
and the analysis of the Social Exclusion Unit on the failure to reduce reoffending by
short sentenced prisoners are all central to the analysis. This amount of change is
remarkable, and there is a great deal of promise in the combined effect of these
reviews, reorganizations and proposed legislation. All this is to be welcomed. Our
only caution is as follows. There is a danger, which we will return to throughout
this response, that a purely utilitarian philosophy can lead to a sentencing
framework, which constructs the criminal law around " what works". This is an
approach, which sees justice in terms of the reduction of crime, and redefines justice
as effectiveness in the delivery of penal policy.
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What are the particular failings of the present framework, which any new
sentencing framework would need to address?
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In many ways the problems are self-generated. First, politicians have contributed to
a lack of confidence in the present system, which could have been avoided if there
had been less belligerent language throughout the 1990s. This is a stark statement to
make, but we have repeatedly expressed the need for a less punitive approach in our
submissions to Home Office consultation papers during the last six years. We
recognize the advances, which legislation has brought, such as the wholesale
reforms of youth justice in the Crime and Disorder Act 1998, and subsequent
legislation. Nevertheless we believe that the collapse of public confidence in the
sentencing framework, which is certainly the case, stems at least in part from the
misconceived views of the tabloid press, as well as politicians. Therefore the first
problem is to address the lack of public confidence in the criminal justice system.
Second, there has been far too great a variation in sentencing practice, especially in
magistrates' courts. Making Punishments Work spells this out clearly. On page 81,
in Appendix 2, Sentencing Behaviour and its impact on services, paragraph 17, the
report shows that magistrates' courts range between sentencing 13% and 50% of
burglars to custody. Similar figures exist for many other crimes: for instance actual
bodily harm in magistrates' courts results in half of all magistrates' courts using
custody in a range of 9-19% of all cases of A.B.H but the other half using it in a
range of 2-53%. This variation is clearly unacceptable. At the same time the number
of custodial sentences of 3 months imprisonment or less given by magistrates in the
last decade, 1989-1999, has risen by 176%. The variation in custodial rates becomes
a matter of great concern if, as is the case, there is far greater use of custody even
for relatively minor offences. So we have far greater use of imprisonment by
magistrates; enormous variation across the country as to its use; and no supervision
at all for prisoners who receive a sentence of less than 12 months on their release.
At the same time the soaring prison numbers leads to overcrowded prisons, and
very little effective work with short stay prisoners when they are in prison. The
number of sentenced adult prisoners rose during the period 1989-1999 from 57,000
to 83,00. It is no wonder that confidence in the system is very low. However the
figures for Crown Courts show much less variation, as might be expected from
judges, although there is a worrying trend to imposing longer sentences over two
years.
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Nevertheless it is also the case that the Criminal Justice Act 1991 did not take
account of the instrumental or utilitarian aims of sentencing which the public and
government wished to be taken into account. A series of ad hoc political and
judicial decisions have changed the framework since 1991, but the result has been a
degree of confusion. In part the delivery of sentencing tries to look forward and
prevent crime reoccurring, while in part the sentencing framework punishes a
person for the offence committed.
Our suggestion is that there needs to be much greater confidence in the criminal
justice system, with less variation in sentencing, and much less use of custodial
imprisonment. Community sentences, which are properly resourced in terms of
programmes and assistance with literacy, employment, etc, would seem to be the
right response.
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Should there be more rigorous sentences as a result of any previous convictions
showing a continuing course of criminal conduct?
The court should set the amount of punishment on the basis of "just desserts". This
would mean that the offender is only sentenced on the basis of proportionality to the
harm done, the seriousness of the offence, and the culpability of the offender. Any
other suggestion will dilute the justice, and therefore the legitimacy, of the sentence.
We echo the submission of ACOP (The Association of Chief Officers of Probation)
to the original review in October 20000, which said on this very point: "We are very
cautious about moves away from just desserts and proportionality. The principles of
the Criminal Justice Act 1991 are not redundant in that the concept of aggravating
and mitigating factors can, and should, be used to address issues of persistence and
risk."
At present progressive loss of mitigation is the current practice and we support the
continuation of this philosophy. A clean past record counts in your favour and
mitigation by appeal to "good character" ceases to be applicable after a series of
convictions. This is very different from actively penalizing offenders in relation to
their past convictions.
It is undeniable that in some areas there is a serious problem of reoffending, but we
believe that this is best dealt with by the delivery of the sentence. In some areas
there is intensive surveillance and supervision of persistent offenders run jointly by
police, probation and other agencies. This would mean that the court sets the
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punishment, but the delivery of the sentence is achieved by the improved work of
the agencies involved. In order that the court sentence, and the subsequent delivery,
are not separated in either the sentencing framework, nor in the view of public
opinion, it is important that further measures are taken. These are set out in the next
section.
4
How might the sentencing framework be made more transparent and public
confidence in sentencing increased?
We feel that there is a strong case for change here. The aims of the Criminal Justice
system should be set out in statute. These aims could include the reform and
rehabilitation of the offender, the protection of the public, and the importance of
consideration being given to the victim. (We would not support the introduction of
victim impact statements as in the United States, where the severity of a sentence
can depend on a victim's account of the impact of a crime upon them. We are
pleased that this consideration is not mentioned.) The aims enshrined in these
statutes would be expressed every time that a sentence is passed. The aims would be
applied in accordance with certain principles. These would include proportionality,
parsimony, equity, respect for diversity, transparency and accountability.
We wish to quote from our earlier submission to the review in October 2000:
"There are also issues of proportionality, where the "just deserts" model of
punishment is applied to the offence. However, unlike the Home Office background
papers, we would also want to argue for the principle of parsimony, as one of the
key operating principles, which is irreducibly in tension with the "deserts" principle
.The ideal is full citizenship in a free society, which is clearly negated by
punishment. Therefore the justification for punishment must be because an offence
threatens another person's participation. If punishment does take place, it should be
as parsimonious as possible. Justice in the Judaeo-Christian tradition is not a virtue
or quality which an individual can have in isolation. It is rather to be defined in
theological terms as a "quality of relationship", and is irreducibly embedded in the
links of obligation, responsibility and care that exist to unite citizens in a society. If
we were to expand on this point in religious terms, we would point to the narratives
of God's care for his people in the Jewish and Christian scriptures. However this
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point can be stated on its own, without the exemplification which a religious faith
would give it."
We believe that the judge or bench should be prepared to explain in open court what
aims were to be achieved by a particular sentence, and how the principles were to
be applied. The reasons for the sentence and its purpose would be understood by a
number of individuals and bodies. These would include the offender, the victim,
members of the community and the families of offenders and victims, the wider
public, but also, and importantly, the services which give effect to the sentence. The
articulation of these aims thereby preserves the distinction between the aim of the
court (a just sentence) and the aims of the Prison or Probation Service (effective
delivery of the sentence's aims). Public opinion should be reassured by this
suggestion.
This could be made quite specific. In the current issue of Prison Report no. 55, (the
journal of the Prison Reform Trust), there are two suggestions, which we welcome.
First, particular features of a prison sentence could be indicated in court as
necessary to address aspects of behaviour. An offending behaviour or anger
management course could be a requirement for a violent offender. This already
happens for community penalties. Secondly, the estimated cost to the public purse
could also be spelled out. This raises the issue of how the delivery of such
requirements might be best monitored, but this topic is best addressed under the
answer to question 15.
We do not refer to deterrence because there seems to be a lack of empirical
evidence of its effectiveness. This is born out in Making Punishments Work, page
129, and paragraph 21:
" The evidence, though limited in this area, provides no basis for making a causal
connection between variations in sentence severity, and differences in deterrent
effects. The increased likelihood of detection and conviction, however, is
statistically associated with declining rates of crime."
If this is the case, then there would seem to be little reason to state it as an aim of
the sentence.
Finally we draw attention to the effect of the Human Rights Act, which has already
led to greater transparency from sentencers about the reasons for sentencing
decisions. This is greatly to be welcomed.
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5. For sentences of less than 12 months, is it the right approach to place greater
emphasis on work with offenders under strict supervision in the community (with
clear sanctions for breach), following a limited period in custody?
6. For very short sentences, would it be better to have an intensive and highly
supervised range of measures in the community, which included punishment as well
as reparation, rather than to send someone to prison?
The suggestion in Question 5 is an excellent idea. One of the great problems at the
moment is that supervision of prisoners given less than twelve months in custody
carries no requirement for supervision on release. As the report shows on page 126,
60% of these prisoners are reconvicted within two years of release, but only 31% of
those given a four to ten year sentence. There are two problems, however. First, it
would be undesirable if the introduction of the split sentence was used as an
alternative to a community sentence. Prisons are far too overcrowded already. Any
increase in numbers would be regrettable. Secondly, there are clear resource
implications for the Prison and Probation Services. This will need much greater
investment in these services, as the forthcoming Social Exclusion Report on
reducing reoffending is likely to suggest. On page 67, Making Punishments Work
refers to partnership with voluntary services and volunteers in service provision,
such as mentoring, housing and employment. We welcome this, and the community
chaplaincy schemes being run in Swansea, Gloucester, and Lancashire by the
Churches Criminal Justice Forum shows what is possible.
On Question 6, the danger is that reparation and restorative justice is now becoming
a mantra. The Board for Social Responsibility has expressed its support for both
ideas in the past, and the Churches Criminal Justice Forum has recently been given
a grant for two years to employ a development worker to promote the idea of
Restorative Justice among the churches. Nevertheless, it must be asked whether this
proposal will enshrine referral orders and reparation orders as a low- tariff option
for the courts. It is only recently that the Crime and Disorder Act 1998 has
enshrined the importance of co-operation between police and local authorities, both
through the Youth Offending Teams (Y.O.T.s) and the analysis of the needs of the
area in terms of community safety. We support the introduction of referral panels
and reparation schemes for adult offenders, as well as victim-offender mediation
(V-O.M.), but we note that at the moment some of the most promising schemes
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such as Leeds V- O. M have been curtailed by the local Probation Service. If the
criminal justice system is to be genuinely community based, and to include
restorative justice criteria, much more needs to change. It cannot, and should not, be
bolted on to the existing system, for then it will fail as Intermediate Treatment for
young offenders did in the 1970s. We support much greater use of community
justice, but again we stress the need for a whole- hearted commitment to this idea.
7-9. Prison Sentences of 12 months or more.
We will not answer the questions in detail. In general, we support the report in its
concern for an increased emphasis on violent and sexual offences. In all our past
submissions on the question of sexual offences, including our response to the Sex
offences review which produced Setting The Boundaries, we have argued for a
greater concern with supervision, and community safety. At the same time our
response to Managing Dangerous People, which was the Home Office consultation
paper on Dangerous Severe Personality Disorders (D.S.P.D.), stressed the
importance of human rights and respect for persons. Our most recent publication,
Personality Disorder and Human Worth , again draws attention to the need to
recognize the intrinsic worth of all human beings. We therefore accept that
supervision of sexual, violent and dangerous offenders should last well beyond the
end of a sentence, and that the release of such offenders should no longer be
automatic at the two-thirds point. Instead there should be a risk assessment by the
parole Board. However there should be clear limits to this process set by statute to
avoid infringement of human rights.
10-12. Intermittent Custody, Intermediate Custody and Home Detention Curfew.
These are very technical matters of operational expertise. In general we doubt the
value of imprisoning people at weekends, nor does the Dutch arrangement for
weekend imprisonment seem to be of such merit that it would be worth trying as a
pilot scheme in England. Once again we emphasize that prisons are overcrowded
places, and that we want less imprisonment, not more.
13-14 Should there be a single 'generic' community sentence, made up of a menu of
specified elements?
This would seem to be an excellent idea. The court could specify the component
elements, such as compulsory drug rehabilitation: supervision; reparation to
individuals and to the community; compulsory work; and any supervision orders or
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exclusion/curfew restrictions. We believe that this would improve public confidence
in community programmes, which would be seen as having a clear aim, as well as a
restorative element. We leave the question of the role of the National Probation
Service in varying the content of such a sentence as a technical matter, beyond our
expertise.
15-17 Sentence Management.
These questions again suggest a great departure as to how courts might work in
England The suggestion is that there should be much closer ties between courts and
the delivery of the sentence by the Prison and Probation Service. It is interesting
that in the report Offenders as People (Quaker Council for European Affairs), of the
conference held in Birmingham, September 1999 Professor Andreu Estela i Barnet
spoke of a close connection between the Spanish courts and prisons in reviewing the
implementation of sentence planning. Professor Barnet is the Director of the main
prison in Barcelona, the Centre Penitenciari Brians. There are weekly visits by
judges to the prisons. In England the experience of the Drug Treatment and Testing
Order involves court review hearings. This experience indicates that the
involvement of sentencers can have a positive impact in reducing crime. It is clear
that if the role of courts does change in the way recommended by Making
Punishments Work then the relationship of this report to Lord Auld's report on the
courts will be profound. We support the recommendation, but point to the resource
implications of this change. There is no reference to the cost of involving lawyers,
and the judiciary, in this process. If there is the involvement of lawyers in appeals
against recall to prison, because of an alleged breach of conditions, then this will
lead to further cost implications. There is also the cost of training those involved in
this review work.
18-19. What would be the most appropriate machinery for producing and
maintaining sentencing guidelines?
What should be the relationship be between a guidelines body, Parliament and the
judiciary?
Chapter 8 of Making Punishments Work outlines three different options for the
body, which should produce sentencing guidelines. At present guidelines are the
responsibility of the Court of Appeal (Criminal Division), assisted by the
Sentencing Advisory Panel. We suggest that Option A is the preferred option, in
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which the Lord Chief Justice chairs the panel, drawn from the Court of Appeal
sitting in a new capacity .The Sentencing Advisory panel could bring evidence to
the Court. We believe that Options B and C run the risk of separating a new body
from the courts in general and the Court of Appeal in particular. We are surprised
that there is no reference to the impact of the Human Rights Act in future
legislation.
+ Thomas Southwark
Chairman, Board for Social Responsibility
20 October 2001