Thursday, 7 April 2011

The Judges respond to government criminal justice proposals

Crown Court at Liverpool
Two responses to the government's green paper "Breaking the Cycle" have been published - see Judiciary website.  One is from Lord Justice Thomas (Vice-President of the Queen's Bench Division and Deputy Head of Criminal Justice) and Lord Justice Goldring (Senior Presiding Judge of England and Wales).  The other is from the Council of Circuit Judges.

These responses are well worth reading completely.  The Circuit Judges wish to see a much simpler sentencing framework in a single Sentencing Act which might even have a fixed period of time (e.g. one Parliament) during which it cannot be amended.  An interesting idea here but will it find favour with hyperactive politicians?  The concept of "payment by results" (e.g. to providers of rehabilitation programmes) makes them "uneasy" and
they raise obvious questions about what will be deemed to be a satisfactory result and the risk that "providers" will only wish to deal with those offenders more likely to achieve a favourable outcome.  There should be more flexibility given to offender managers as to whether to bring court proceedings for breaches of community orders.  (Such discretion used to exist and there were instances of matters being allowed to drift too far before referral back to court).  Also, the court should have a discretion in breach proceedings as to whether to make an order more onerous.  (The Criminal Justice Act 2003 mandates that the order be made more onerous).  Another point made is that offender managers must not be given punitive powers to deal with offenders extra-judicially.

The Circuit Judges make a good point about offenders who are released from prison on licence and then returned to prison because of re-offending.  Any sentence for the new offence ought to begin when the original sentence ends - (para. 36 of the Circuit Judge response).

A power for the court to remand a person in custody rather than grant bail should remain even if the likely outcome is a community sentence (para. 38).  "We are wholly opposed to the proposal that a Court should form a view whether a defendant might eventually receive a non custodial sentence and, having formed that view, be required to release that defendant on bail."

They are very concerned about the increasing use of out-of-court disposals for what they see as "truly criminal activities."  Whilst they do not define that term it is clear that penalty notices for disorder and cautioning is being taken too far with conditional cautioning able to impose what is tantamount to a community sentence.  The Judges see the use of penalty notices as likely to reduce the seriousness by which offending is viewed (para 66) and some offenders escape too lightly if a penalty notice is imposed (para 69).  Conditional cautions give rise to great concern (para 72) and are an extra judicial process (para 74).  The Judges are, rightly, against giving the Police power to impose a conditional caution (para 77)

The idea of "Neighbourhood Justice Panels" is basically condemned.  "There is already in place a procedure for dealing with low level offending that is structured, properly recorded and understood. There are already many volunteers from local communities who play a meaningful part in the administration of justice in our Magistrates Courts. They devote their time to serving their local communities. They have proper training and support. They work in a structured setting applying local justice. They are, in reality, genuine Community Justice Panels working within the criminal justice system. There is absolutely no need to experiment with an untrained, unsupported and largely informal substitute."  In making this comment, the judges picked up on a rather worrying point about how the Neighbourhood Justice question was phrased in the green paper.  Q.56 - "What sort of offences and offenders should Neighbourhood Justice Panels deal with and how could those panels complement existing criminal justice processes?  The judges commented - "It is unfortunate that the question is framed in a way that suggests that a fundamental and, in our view, wholly inappropriate and unwise decision has already been taken. We trust that is not so."

The Experts have spoken ... one hopes that the politicians will listen !!

Other posts:  Judges critical of Clarke's proposals for sentencing reform .... Breaking the Cycle .... Green paper on Sentencing .... A jewel beyond price: the Magistracy of England and Wales.


  1. A power for the court to remand a person in custody rather than grant bail should remain even if the likely outcome is a community sentence (para. 38). "We are wholly opposed to the proposal that a Court should form a view whether a defendant might eventually receive a non custodial sentence and, having formed that view, be required to release that defendant on bail."

    This strikes me as distinctly odd. If the facts as alleged could not justify a custodial sentence, I find it difficult to imagine any circumstance where bail could not be given. It seems obviously unjust to imprison someone simply in order to ensure they turn up, if the offence doesn't justify imprisonment. Trial in absentia would be more reasonable.

    And surely witness intimidation or flight cannot apply - he would be as well able to do either on an unpaid work sentence.

  2. Interesting point here Ben. The judges set out their reasoning on page 10 of their response (paras 38 and 39). Their primary concerns appear to be (a) that forming an early stage view that a community penalty will suffice might create an "expectation" of a non-custodial sentence which would cause difficulties if (b) something were to emerge at trial (or perhaps in a pre-sentence report) which altered the initial view and made a custodial sentence inevitable. They do not offer any specific examples of this arising though it is doubtless a possibility given that bail decisions are taken at the start of the court process. Unfortunately, if one were to always take the view that this risk exists then it becomes difficult to see how anybody can get bail. !!

    Additionally, the judges throw in some other items such as cases (e.g. domestic violence) where it is necessary to take the heat out of the situation. It struck me that this reasoning comes close to someone being viewed as guilty until proven otherwise !! In some cases "the heat can be taken out" by suitable bail conditions though this can sometimes be problematic. Conditions not to contact the aggrieved party are often difficult when the defendant perhaps has belongings at the AP's house or where there are children or where he may have some other good reason to go there etc.

    Bail decisions are a form of risk assessment which has to be made on the basis of what is known at the time. Nobody has a crystal ball but there are factors pointing for and against bail. The likely sentence if convicted is already a relevant factor in the Bail Act. If the likely sentence is imprisonment but only perhaps for a short term then, depending on all other factors, it may not be indicative of a substantial risk to believe that the defendant will fail to surrender. Indeed, even a likely heavy sentence does not always mean that the defendant will abscond. Ultimately, it all depends on every item of information known to the court.

    The MoJ's response will be interesting. On balance, I think they might be better leaving things as they are and leave matters to the good sense of the judges or the magistrates.

  3. See Bail Act 1976 Schedule 1 para 9 which sets out the relevance of the likely method of dealing with the person if convicted.

  4. Politicians listen? politicians take note of expert opinion? dream on

  5. Clearly Anonymous you do not recognise irony even when there are two exclamation marks at the end of the sentence.