Tenth Report - Public opinion and understanding of sentencing

Beyond the role of the courts in imposing a sentence, the public does not have a good understanding of the role played by different state institutions in sentencing. That is unsurprising because the role played by government, Parliament, the Sentencing Council and the judiciary in sentencing involves a delicate balance of responsibilities, which are not easy to explain. Further, most of the public obtain information from the media about sentencing through reporting on individual cases, and such stories do not often provide information on the policies and responsibilities that lie behind individual sentencing decisions. The problem with this situation is that it creates an accountability gap, as it is unclear to the public which elements of sentencing the Government is responsible for.

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.

It is concerning that much of the public is not aware of recent trends in sentence lengths.It means that the public is not able to consider individual sentences within a wider context. Low levels of understanding of sentencing has an effect on the quality of public debate on sentencing, which in turn can have an influence on sentencing policy.

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 standalone public-facing website dedicated to providing the public with up-to date information on sentencing trends in England and Wales.

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. (Paragraph 42) Public opinion and understanding of sentencing 57

The Sentencing Council should provide independent and impartial analysis on significant trends in sentencing to inform public debate and government policy.

There is currently a significant gap in the public information on sentencing. The criminal justice system quarterly statistics provide information on sentencing, but there remains a need for more easily accessible data on sentencing trends, especially on sentencing for specific offences and in specific areas. At present the public debate on sentencing focuses almost exclusively on individual cases and we believe that better analytical information could help to redress this imbalance.

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.

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.

The broadcasting of sentencing remarks represents a potential game-changer for public understanding of sentencing in England and Wales. However, it also reinforces the need for up-to-date statistical information on sentencing practice and trends so that the sentencing remarks that are being broadcast can be understood in their proper context.

The current situation where victims have to pay significant sums to receive a transcript of sentencing remarks from the Crown Court is unsustainable. We reiterate our call for all sentencing remarks to be published (subject to the relevant legal restrictions). As a minimum, victims of crime and bereaved families should have ready and free access to sentencing remarks. It should be possible to use voice recording technology to ensure that remarks are recorded at minimal cost. The Victims’ Code should include a right for victims of crime to be provided with the sentencing remarks of the judge without charge.

The Victims’ Code sets out that victims of crime are entitled to be given information about the outcome of the case and any appeals. The Government should ensure that victims of crime and bereaved families receive tailored information about sentencing during the court process. The Government should amend the Victims’ Code to make clear that victims be entitled to ready access to information about how sentences are determined for offences relevant to the victim’s case, including average sentence lengths. When a sentence is handed down, victims should have ready access to information about how the sentence works. The Government should ensure that where they are 58 Public opinion and understanding of sentencing eligible, victims of crime and bereaved families should automatically be referred to accurate and clear information about the Unduly Lenient Sentence scheme in a timely fashion. The information should make clear the deadline for making an application under the scheme. These changes should be made before the Victims and Prisoners Bill receives Royal Assent.

It is important that offenders understand the sentence they are to serve. Offenders should have ready access to information about the sentencing process, including information about pre-sentence reports at the earliest possible stage. Following sentencing, they should have ready access to information about what their sentence will look like in practice. Offenders, including child defendants, should be given a hard copy of their sentencing remarks. We look forward to the outcome of the pre-sentence reports pilots and encourage the Government to increase the proportion of cases that have access to pre-sentence reports. (Paragraph 71) Public opinion of sentencing

Research on the public’s views on sentencing can play a valuable role in the policy process. However, it must be recognised that ascertaining and measuring public opinion is very difficult to do. Unless research is well-designed and methodologically rigorous then the results are almost certain to be flawed. Any general assessments of the public’s view of sentencing policy across all offences should be balanced against analysis and engagement of public opinion and understanding which, where possible, focuses on specific offences or offence types.

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.

Findings from the Committee’s engagement with the public demonstrate how important it is for the MoJ to undertake more work of this nature and to incorporate findings into its policy development. The Government should review the statutory purposes of sentencing to consider whether greater emphasis should be placed on achieving justice for the victims of crime and their families.

Our polling on the public’s view on the appropriate starting points for specific offences suggests that a majority would support increases in the severity of the relevant custodial sentences. This position is also supported by much of the research into public opinion cited in the evidence submitted to this inquiry. This potential gap between public opinion on sentencing and actual practice indicated by the evidence we received highlights the need for in-depth analysis of the public’s view of sentencing policy for particular offences. (Paragraph 87) Public opinion and understanding of sentencing 59

Under the Coroners and Justice Act 2009, the Lord Chancellor can refer a government policy proposal, or a government proposal for legislation, to the Sentencing Council for an assessment of the implications for prison resources. In practice, there has only been one request made under this power by a Lord Chancellor, and the Council does not believe it is well placed to undertake such assessments. The Ministry of Justice does carry out its own impact assessments, but these are not independent. The result is that at present there is a lack of independent scrutiny of sentencing policy proposals, and in particular analysis of their downstream impact on resources.

The MoJ should establish an independent advisory panel on sentencing to consider proposed changes to sentencing policy and to provide advice to ministers. The independent panel should bring together academic experts, the voluntary sector, and, importantly, representatives of victims of crime and their families. It is vital for the legitimacy of the independent panel that it should contain a diversity of opinion and a range of perspectives on sentencing. The panel should also conduct structured public engagement as part of its work. Its findings and advice should be publicly available. The MoJ should also instruct the independent advisory panel to conduct regular reviews of the statutory minimum and maximum tariffs for sentences to determine whether sentences are proportionate and consistent across different types of offence.

At present, the public consultations conducted by the Sentencing Council on changes to guidelines represent one of the principal means by which the public can engage with the sentencing process. The Council does valuable work in engaging stakeholders in their consultations. However, their limited resources mean the Council only receives a small number of submissions from the public.

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) Public understanding of sentencing and public confidence in the criminal justice system

The relationship between public understanding of sentencing and public confidence in the criminal justice system is far from straightforward. Simplistic causal claims should be avoided. Our overall conclusion is that everyone involved in, or responsible for, the criminal justice system needs to take the duty to ensure public confidence extremely seriously. Politicians from all parties must ensure that public commentary on the criminal justice system does not contribute to misunderstandings that can damage public confidence. In terms of public policy, stripping away unnecessary complexity in sentencing must also be prioritised to facilitate improved public 60 Public opinion and understanding of sentencing debate. Improvements to open justice, such as the broadcasting of sentencing remarks, need to be built upon, including through some of the recommendations outlined in this report. Even if it is not possible to say that direct contact with, or information about, the criminal justice system will necessarily lead to improved confidence, it is undoubtedly a public good to encourage more of the public to know about the justice which is done in their name.

In relation to the current challenge to public confidence based on the persistence of the view among the public that the system is not severe enough, it is important to recognise that this represents a significant long-term public policy challenge that needs to be addressed. Our own polling indicates that the majority of the public support further increases to the severity of sentences for the gravest criminal offences. We should not assume that these views are based on mistaken assumptions or lack of knowledge of current sentencing practice. It is vital that policymakers adopt a consistent and principled response to maintaining public confidence in response to the challenge of the public’s position on sentencing severity. This should be informed by an attempt to understand what the public’s expectations are.

The use by major news outlets of the phrase “jailed for life” when they are not referring to a whole life order is an example of how media coverage risks perpetuating misunderstandings of the law on life sentences among the public. Reporting of sentencing that potentially inflates expectations of how long a person will serve in prison risks damaging public confidence. During our visit to Finland and the Netherlands, stakeholders stressed that the media’s self-restraint in commenting on sentencing contributed to a positive level positive level of cooperation between the judiciary and the media. The Government should conduct a review of the terminology used in sentencing and should consider whether the terminology used for life sentences could be made more accessible to the public.

In order to improve the quality of information in the public domain on sentencing, the judiciary should consider whether the model of press judges, as used in Finland and the Netherlands, could be used. The changing nature of the media landscape means that there is a strong case for taking a more proactive approach to providing information to the public on judgments, including sentencing.

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.

The Sentencing Council should be provided with additional resource to expand its communications work across both traditional and social media.

We agree with Bishop James Jones’ submission to this inquiry on behalf of the Independent Commission into the experience of victims and long-term Prisoners that there is a need for national debate on sentencing. This inquiry has highlighted that the public debate on sentencing is stuck in a dysfunctional and reactive cycle.

The quality of public discourse on sentencing must be improved so as to enable greater public knowledge and understanding of current sentencing practice, of Public opinion and understanding of sentencing 61 evidence on the effectiveness of different sentencing options, and the resource implications of sentences. It is incumbent on us all to play a role in shaping a more constructive debate and to seek consensus on the issues.

It is also important that Government and Parliament understand where there may be genuine and sustained gaps between sentencing policy and public opinion. Whilst more difficult to measure and more subjective, whether an offender is suitably punished is an important factor when considering the effectiveness of sentencing policy. Those gaps can be used to inform the development of sentencing policy. However, it is important to stress that sentencing in individual cases is a matter for the judiciary. Judges make their decisions based on the statutory framework set by Parliament, and the structure dictated by sentencing guidelines.

This Government, and its successors, need to think carefully about how to engage with public opinion on sentencing. There are important choices to be made about how to ascertain public opinion and the extent to which policy should be responsive to public pressure. In our view, the Government should seek to actively engage the public on sentencing policy but should do so in a structured and methodologically rigorous fashion. It should ensure that both traditional polling and deliberative methods are used, and that exercises occur at regular intervals. Finally, policy proposals on sentencing should be subject to independent evaluation, so that the resourcing implications are evaluated before they are enacted. (Paragraph 131) 62 Public opinion and understanding of sentencing