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Truth in Sentencing: Some Problems of Enforcement Strategy

Ralph Henham

Reader in Law
Nottingham Trent University

Copyright © 1996 Ralph Henham.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The impact which the Government's recent proposals to abolish automatic early release for prisoners might have on the length of sentences is examined. Consideration is given to whether, if the proposals are implemented, judicial persuasion will be sufficient to effect a reduction in sentence lengths necessary to compensate for such a change or whether legislation will be necessary to effect a mandatory reduction in sentence lengths.

Contents

Introduction
The Bibi initiative
The 1992 Practice Statement
Evidence from Australia
Conclusion

Bibliography

Introduction

The proposed substantive changes in sentencing policy detailed by the Home Secretary, Michael Howard in the White Paper Protecting the Public: The Government's Strategy on Crime in England and Wales published on 3rd April 1996 includes proposals to abolish automatic early release for prisoners (Chapter 9). The present provisions were only introduced on 1 October 1992 when the bulk of the Criminal Justice Act 1991 came into force. In summary, parole was confined to prisoners sentenced to 4 years or more. Where sentenced to less than 4 years, the Secretary of State may release at the half way stage but, if between such release and the period covered by the original sentence, the offender commits an imprisonable offence he may be recalled to serve the balance of the original sentence outstanding at the time of the fresh offence. Where sentenced to a 4 year or more determinate sentence prisoners are released on licence after serving two-thirds of that sentence and become eligible for parole at the half way stage. Prisoners remain at risk following release in the same way as short term prisoners.(1) In place of the current provisions the Government proposes instead that any prison term imposed by the court would be served in full. For the first twelve months of a sentence, or all of a sentence of less than twelve months, a prisoner would be able to earn a small discount of six days a month by co-operation with the prison regime. For sentences exceeding twelve months three days a month could be earned by co- operation and a further three days each month for positive good behaviour. Following release, offenders sentenced to terms of twelve months or more would spend a further period under supervision in the community (paragraph 9.1). The Home Secretary had already indicated (The Times, 5 February 1996), at a meeting of the Criminal Justice Consultative Council, that substantial reductions in penalty levels would be necessitated by the proposal to introduce "truth" or "honesty" into the English sentencing system. Sentencers would be expected to take this factor into account when determining the appropriate sentence length and its significance would require clarification and guidance from the Lord Chief Justice. In this context, therefore, the following paragraph of the White Paper is of particular significance:

'The Government does not expect these proposals to result in a general increase in the period of time offenders serve in prisons: the courts will be expected to take into account, when passing sentence, the abolition of parole and the changes in the early release arrangements. This could be achieved in one of two ways: either by a Practice Direction if the Lord Chief Justice decided that it was appropriate to issue such a Direction; or by a specific statutory provision' (paragraph 9.2).

It is not my purpose here to debate the merits of these proposals, rather, I wish to suggest that, should they become law, judicial persuasion is unlikely to prove a successful mechanism to effect a reduction in penalty lengths.

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The Bibi initiative

It is conceivable that the necessary guidance could take the form of guidelines similar to those produced in 1980 by Lord Lane C J in Bibi [1980] 1 WLR 1193 in which sentencers were encouraged to use shorter prison sentences in certain types of cases.(2) It cannot be convincingly argued that this initiative was successful in influencing the majority of sentencers to produce fewer and shorter custodial sentences. Indeed, apart from a slight reduction in average sentence lengths in the second half of 1980 the prison population continued to rise inexorably throughout the 1980s.(3) The Bibi guidance also suffered from the further weakness that it failed to relate how petty recidivist offenders should be dealt with and thus neglected to address one of the major constituent causes of the expanding prison population. It is impossible to establish whether the Bibi initiative actually resulted in a change of sentencing approach in the cases specified but, even if it did, it is arguable that the ability of sentencers to effect either changes in criminal behaviour patterns or major changes in the composition of the prison population are minimal (see Ashworth 1995, pp 231-2). The most obvious illustration of the former point is the apparent inability of the Court of Appeal to deter potential offenders through the deliberate stratagem of exemplary sentencing in cases where certain types of offence have suddenly increased in frequency or are causing public concern (see, for example, Whitton, The Times, 20 May 1986 on soccer hooliganism).

It is also apparent that the statutory framework of just deserts and proportionality imposed by the Criminal Justice Act 1991 has not curtailed or circumscribed the Court of Appeal's ability to develop sentencing policy and, if necessary, pursue apparently contradictory sentencing objectives to those reflected in the Act's provisions.(4) The 1990 White Paper which preceded the 1991 Act highlighted the centrality and importance of the Court of Appeal's future role in developing principles of proportionality through the development of guideline judgment (para 2.20). In reality, however, the subsequent refinement and expansion of guideline judgment has reflected the process of encouraging uniformity of approach in particular cases pursued more vigorously by Lord Lane CJ prior to the 1991 Act.(5) The Court has, however, ultimately concerned itself with assisting sentencers to achieve the correct balance between different variants within an offence type rather than maintaining proportionality as between offence types (or, ordinal proportionality in von Hirsch's terms). It is submitted that general exhortations to reduce sentence lengths in the Bibi tradition are unlikely to be as effective as guideline judgments dealing with specific offence types. Accordingly judicial co-operation is unlikely to be forthcoming to facilitate the implementation of the Government's sentencing agenda.

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The 1992 Practice Statement

An alternative method available to persuade sentencers to reduce sentence lengths is for the Lord Chief Justice to deliver a Practice Statement similar to that delivered by Lord Taylor CJ in October 1992 to coincide with the implementation of the main provisions of the Criminal Justice Act 1991.(6) This particular Practice Statement was necessitated by the early release procedures for prisoners introduced under Part II of that Act. Thomas indicated (1992, p 12) that the success of the Practice Statement in effecting a reduction in sentence levels was particularly important for those who would, prior to the Act, have received medium term sentences from about twelve months to three years, arguing that this group would have had the best chance of release on licence under the pre-1991 Act system. Thomas therefore suggested that those offenders should have their sentences discounted by one-third to put them roughly in the same position they would have been in before the Act. No empirical research has been carried out in order to ascertain whether the Practice Statement had any consistent and significant impact on sentencers' decision-making processes. However, an examination of average sentence lengths for those males aged 21 and over sentenced to immediate custody for indictable offences in the Crown Court reveals a steady overall increase from 20.5 months in 1991 to 21.8 months in 1993.(7) On this evidence no generalised impact would even be suggested by the figures. Even if a reduction in average sentence lengths were evident from the statistics this could not be partially or wholly attributed to the impact of the Practice Statement without more rigorous empirical analysis but it may, at the very least, suggest the hypothesis. Nevertheless, a stronger indication would exist if a fall in average sentence lengths in an offence group identified as crucial by Thomas (i.e. 12 months to 3 years) were observed during the relevant period. An example of such an offence group is unlawful possession of Class B drugs with intent to supply which, depending on the scale of the operation, should attract sentences of between one and four years imprisonment according to Aramah (1982) 4 Cr App R (S) 407, the guideline case.(8) The number and percentage of all offenders sentenced to immediate custody for possession with intent to supply (all drug types) for 1991 was 1,073 (39 per cent) and for 1993 2,062 (43 per cent). (Home Office 1993, Table 3.7). Further, the numbers and percentages (all drug types and offences) for sentence lengths for 1991 were: 1-2 years, 607 (19 per cent) and 2-5 years, 553 (17 per cent) and for 1993; 1-2 years 897 (19 per cent) and 2-5 years 985 (21 per cent) (Home Office 1993, Table 3.10). Since there is no further available statistical breakdown showing unlawful possession of Class B drugs with intent to supply by sentence length and year it may only be observed that custodial sentences for the offence of possession with intent to supply have increased post-October 1992 across all drugs types with the largest percentage increase in custodial sentences for all offences and drug types for the relevant period being in the 2-5 year range at 4 per cent. There is nothing here to suggest that the 1992 Practice Statement may have had an impact and, again, even if the more detailed statistical information referred to above were available and showed a reduction in sentence lengths for the relevant period, this could not, without further analysis be attributed to the Statement itself. Nevertheless, such evidence as is available does not, in my submission, enable us to support the formulation of even a tentative hypothesis suggesting that the 1992 Practice Statement has had any significant impact on the length of custodial sentences.

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Evidence from Australia

Freiberg has recently drawn our attention to evidence from New South Wales and Victoria which supports the proposition that reliance on judicially formulated sentencing policy is unlikely to precipitate a reduction in average custodial sentence lengths (see Freiberg 1992 and in Clarkson and Morgan 1995, pp 76 & 82). In New South Wales, under the terms of the Sentencing Act 1989 (NSW) adult and juvenile offenders ceased to be entitled to remission of custodial sentences. The Act also provided that, for sentences over six months, a minimum term in custody should be specified by the courts in addition to an "additional term" during which the offender could be released or remain in custody. In the absence of "exceptional circumstances" the additional term was not to exceed one-third of the minimum sentence. Although the legislation clearly spelt out that the objective of the provisions was "to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court" the judiciary failed to take any action to review their sentencing behaviour. This finding, supported by three evaluative studies, attributed the failure as an important cause of recent increases in the New South Wales prison population. However, increased prison receptions during the relevant period is also cited as a major contributory cause. Since this would, undoubtedly, also be a factor should the Government's main sentencing reforms become law it would similarly be difficult to attribute relative causation to variables such as "lack of judicial action" and "increased prison receptions".

By contrast, Freiberg points out the deliberate attempt to avoid the New South Wales experience made by the Government of Victoria when it decided to abolish remissions in the Sentencing Act 1991 (Vic.). Although parole remained in force the clear objective was to reduce the perceived lack of correspondence between sentences imposed and time actually served in requiring sentencers to modify their sentences by a downwards adjustment to reflect the removal of remission. The legislation is unequivocal in stating that the custodial sentence should be equivalent in length to that which would have been served for a similar offence in similar circumstances under the pre-existing legislation. Data from an evaluative study have revealed that the average aggregate prison term for all prison receptions dropped by twenty- seven per cent during the period between two years prior and six months after the Act.(9) Freiberg concludes:

"Given the difficulty of policing the internal thought processes of the judiciary, and the opportunities for evasion of the legislation...it would seem that the technique adopted by the Victorian legislation of requiring a mandatory adjustment to sentence lengths has been totally successful in achieving the intended outcome." (1995, p 84).

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Conclusion

Freiberg's concluding remark surely provides the key to understanding the complexity of controlling judicial discretion in sentencing policy development. Recent criminal justice history has demonstrated that although judicial discretion may be restricted it is unlikely to be controlled in the absence of mandatory legislative provisions. Indeed, some considerable time has elapsed since Hogarth (1971, ch 12) demonstrated that legal and social constraints were perceived by sentencers in ways that minimised inconsistencies with their existing attitudes and beliefs. As has been argued, political and other attempts to change the approach to custodial sentencing which rely on judicial action for their implementation appear doomed to failure. It is submitted that, in the absence of the mandatory reduction of sentence lengths to compensate for the abolition of automatic early release (arguably as politically unacceptable to the judiciary as mandatory minimum sentences) the dramatic increase in the prison population predicted to follow the introduction of the Government's proposals would proceed unabated. Such a conclusion not only focuses attention on the continuing tension between the judiciary and the executive but also highlights again the failure of existing strategies for providing guidance on sentencing policy matters beyond the scope of this note.(10)

Bibliography

Ashworth, AJ (1995) Sentencing and Criminal Justice (Butterworths: London).

Bottomley, K and Pease, K (1986) Crime and Punishment: Interpreting the Data (Open University Press: Milton Keynes).

Fox, R (1993) 'Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic.)' 17 Criminal Law Journal 394.

Freiberg (1992) 'Truth in Sentencing? The Abolition of Remissions in Victoria: Sentencing Act 1991 (Vic.)' 16 Criminal Law Journal 165.

Freiberg (1995) 'Sentencing Reform in Victoria : A Case Study' in Clarkson, C and Morgan, R (eds) The Politics of Sentencing Reform (Oxford University Press: Oxford).

Hogarth, J (1971) Sentencing as a Human Process (University of Toronto Press: Toronto).

Home Office (1990) Crime, Justice and Protecting the Public: The Government's Proposals for Legislation, Cm 965 (HMSO: London).

Home Office (1994) Statistics of Drug Seizures and Offenders dealt with United Kingdom 1993, Statistical Bulletin 28/94 (Government Statistical Service: London).

Home Office (1995a) The Prison Population 1994, Statistical Bulletin 8/95 (Government Statistical Service: London).

Home Office (1995b) Cautions, court proceedings and sentencing, England and Wales, 1994, Statistical Bulletin 18/95 (Government Statistical Service: London).

Home Office (1996) Protecting the Public: The Government's Strategy on Crime in England and Wales, Cm 3190 (HMSO: London).

Penal Affairs Consortium (1995) Sentencing and Early Release: The Home Secretary's Proposals (Penal Affairs Consortium: London).

Thomas, DA (1979) Principles of Sentencing (Heinemann: London).

Thomas, DA (1992) 'Towards a new tariff' 4 Sentencing News 12.

Footnotes

(1) It has long been established as a general principle that sentencers should not have regard to remission or the possibility of release on licence. See further Thomas (1979, pp. 48-9). Back to text.

(2) It was stressed that many offenders, not just first offenders, only needed custodial sentences of 6 to 9 months rather than 18 months to 3 years as was then the norm. The following specific examples were provided; less serious commercial burglaries, minor sexual indecency, petty frauds involving small sums of money, fringe participants in serious crime. Medium or longer sentences would be appropriate for most robberies, offences involving serious violence, use of a weapon to wound, residential burglary, planned crime for wholesale profit, large scale drug trafficking. The objective was described as uniformity of approach not uniformity of sentence. The court should ask itself "whether there is any compelling reason why a short sentence should not be passed".
A number of other cases were decided the same day to emphasise the Bibi guidance, see McCann, Eastlake, Ingham, Brewster, Freeman, Fox, Jones [1980] Crim. L.R. 734-738. Particularly important guidance in shoplifting and petty theft cases was provided by Lord Lane C J in Upton (1980) 2 Cr. App. R. (S) 132 as follows:

"the time has come to appreciate that non-violent petty offenders should not be allowed to take up what has become valuable space in prison. If there really is no alternative..to an immediate prison sentence, then it should be as short as possible."
Back to text.

(3) In 1980 the prison population was 42,109 in accommodation for 38,930 but by 1988 had risen to 49,578 in accommodation for 44,179 with a percentage occupancy rate for local prisons of 154 per cent. Bottomley and Pease (1986, p.93) opine that much of the decrease in the average length of prison sentences imposed on males aged 21 and over for all types of offence and at all courts between 1980 and 1981 was undeservedly associated with the Bibi initiative since the fall did not occur primarily in the types of case to which those judgments were directed. Back to text.

(4) For example, in Cunningham (1993) 14 Cr. App. R. (S) 444, [1993] Crim. L.R. 151 it was held that offence prevalence was a legitimate factor to be considered in determining the length of a custodial sentence and whether it crossed the custody threshold in the first instance. The court also held that deterrence could affect the length of a sentence, provided the sentence was commensurate with the seriousness of the offence or offences for which it was passed, demonstrating a divergence from the Government's proportionality principle articulated in the 1990 White Paper (see paras. 2.8, 2.9). In Kempley, The Times, 5 April 1994 Russell LJ in the Court of Appeal stated that there had to be a deterrent element in any sentence passed on an offender found in possession of Ecstacy (MDA) with intent to supply. A five year prison sentence imposed on a first offender was upheld. Back to text.

(5) The following examples had a major impact on sentencing practice: Aramah (1982) 4 Cr App R (S) 407 (drugs), Barrick (1985) 7 Cr App R (S) 143 (theft in breach of trust), Billam (1986) 8 Cr App R (S) 48 (rape), Stewart (1987) 9 Cr App R (S) 135 (social security fraud). Back to text.

(6) After summarising the new parole provisions the Practice Statement continued as follows:

"It is therefore vital for all sentencers in the Crown Court to realise that sentences on the 'old' scale would under the 'new' Act result in many prisoners actually serving longer in custody than hitherto. It has been an axiomatic principle of sentencing policy until now that the Court should decide the appropriate sentence in each case without reference to questions of remission or parole...we have decided that a new approach is essential...it will be necessary when passing a custodial sentence in the Crown Court to have regard to the actual period likely to be served and, as far as practicable, to the risk of offenders serving substantially longer under the new system than would have been normal under the old. Existing guideline judgments should be applied with those considerations in mind....[H]aving taken the above considerations into account, sentencers must, of course, exercise their individual judgment as to the appropriate sentence to be passed and nothing in this statement is intended to restrict that independence." Extracted from Practice Statement (Crime: Sentencing [1992] 1 WLR 948.

It is significant that Lord Taylor CJ stressed in Cunningham (1993) 14 Cr App R (S) 444 that the Practice Statement did not require sentencers to make an "arithmetically precise calculation". Its function was simply to alert sentencers to the changes in the system of early release and the possible effects should sentence lengths remain as prior to 1 October 1992. He emphasised that the major concern of the Court of Appeal would be to ensure compliance with the 1991 Act criteria for custodial sentences rather than with arithmetical comparisons between the old and new sentencing regimes. Back to text.

(7) There has been a slight fall to 20.8 months in 1994. It is suggested that the overall decrease was partly due to the increased percentage of all those sentenced to immediate custody who had committed burglary or theft and handling stolen goods (Home Office 1995b, para. 30). The fact that the average length of sentences of adult males received into custody from both magistrates courts and Crown Courts fell between 1992 to 1994 (from 26.7 in 1992 to 25.1 months in 1994 in the case of the Crown Court) is partly attributable to the continued increase in the proportion of offenders serving sentences up to 18 months, from 7,400 in 1992 to 8,000 in 1994. This reverses the downward trend from 9,600 in 1986. The reduction in average sentence lengths since 1992 is generally attributed to changes in the mix of custodial sentences introduced by the Criminal Justice Act 1991 (see Home Office 1995a, paras. 11-13). Back to text.

(8) See also cases cited by D A Thomas, Current Sentencing Practice B11-1.3D. Back to text.

(9) Note that the downward adjustment to reflect the abolition of remissions no longer applies when sentencing a serious sexual offender for a sexual offence or a violent offence, or to a serious violent offender for a serious violent offence (see Fox 1993). Back to text.

(10) For detailed discussion see Ashworth (1995, p 342 et seq) and Penal Affairs Consortium, (1995). The model favoured by the Consortium would issue guidance in the form of practice directions or notes (pp 5,6) although no evidence is put forward in support of the view that these would actually change the judicial approach to sentencing in particular types of cases, or generally. Back to text.

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