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Sentencing Academy response to the Sentencing Council’s modern slavery offences consultation

8 January 2021

The Sentencing Academy has submitted a response to the Sentencing Council’s consultation on a guideline for modern slavery offences (https://www.sentencingcouncil.org.uk/wp-content/uploads/Modern-slavery-consultation-web.pdf).

Our response is available here:

The Effectiveness of Sentencing Options: A review of key research findings

6 January 2021

The Sentencing Academy has published a new report by Dr Melissa Hamilton (Reader in Law and Criminal Justice, School of Law, University of Surrey) examining the research findings on the effectiveness, particularly in terms of reducing re-offending, of three key sentencing disposals: immediate imprisonment, suspended sentence orders and community orders.

Read the full report here:

Executive Summary:

• Reducing re-offending is one of five key sentencing objectives in England and Wales. Courts employ a range of sentences, from discharges to imprisonment. This paper summarises findings from the latest research exploring the relative effectiveness of the principal sanctions for more serious offending: immediate imprisonment, suspended sentence orders and community orders.

• In recent years, researchers have evaluated the relative effectiveness of these different sanctions by comparing the re-offending rates of those who have served a sentence of immediate imprisonment to those who served instead a community order or suspended sentence order.

• Comparing re-offending rates associated with different sanctions is challenging because high risk offenders are more likely to be sentenced to custody. This may explain why short sentences of imprisonment are associated with higher re-offending rates than community orders and suspended sentence orders.

• Recent research by the Ministry of Justice and other agencies compared re-offending rates for immediate imprisonment, suspended sentence orders and community orders, having first controlled for other explanatory factors. Re-offending rates for offenders sentenced to short terms of immediate imprisonment were higher than rates for offenders sentenced to either a community order or a suspended sentence order. Re-offending rates for offenders sentenced to community orders are typically higher than those given suspended sentence orders.

• It is too early to know whether the introduction of supervision upon release for short-term custodial sentences has been effective in reducing re-offending because of additional changes implemented around the same time.

• More research is needed to determine whether the type of sentence is related to re-offending rates by gender and ethnicity and to determine how different sentences meet the criminogenic needs of offenders and how they improve their lives more generally.

• Research should use longer follow-up periods to better evaluate the impact of sentences on long-term desistance.

Sentence Reductions for Guilty Pleas: A review of policy, practice and research

16 December 2020

The Sentencing Academy has published a new report, Sentence Reductions for Guilty Pleas: A review of policy, practice and research by Jay Gormley, Julian V. Roberts, Jonathan Bild and Lyndon Harris.

Read the full report here:

Executive Summary:

  • Most convictions in England and Wales in the Crown Court and the magistrates’ courts arise as a result of the defendant entering a guilty plea. Courts are explicitly required to consider the guilty plea when passing sentence by section 73 of the Sentencing Code (previously section 144 of the Criminal Justice Act 2003). Defendants who plead guilty and who waive their right to a trial are normally entitled to a sentence reduction. All common law jurisdictions offer sentence reductions to defendants who forgo their right to trial and instead plead guilty.
  • The primary source of guidance in England and Wales regarding the levels of reduction appropriate in cases of a guilty plea is the definitive guideline issued by the Sentencing Council in 2017 to replace an earlier guideline issued in 2007.
  • Two principal justifications currently exist for offering sentence reductions to defendants who plead guilty. First, a guilty plea saves witnesses from having to attend court to give evidence. This may require multiple appearances and can be time-consuming and stressful. Second, a plea, particularly if entered early in the criminal process, conserves criminal justice system resources. The police, the Crown Prosecution Service and the court system all conserve resources when a trial is avoided. A guilty plea may be considered evidence of remorse on the part of defendants, but this factor is considered elsewhere in the sentencing methodology.
  • The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction. If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded. The guideline also specifies that one-third is the maximum reduction appropriate across all cases. A plea entered after the first stage attracts a maximum reduction of one-quarter. The reduction awarded should decrease to a maximum of one-tenth on the first day of trial. The guideline includes a series of exceptions to the recommended reductions. These allow a departure from the recommended maximum reductions. For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner. In addition, there is a separate regime for young defendants.
  • A guilty plea may also affect the type of sentence imposed. For example, a court may take a guilty plea into account by reducing a custodial sentence to a community order or by reducing a community order to a fine.
  • The 2017 guideline modified a previous guideline issued in 2007. The new guideline sought to increase the consistency of plea-based reductions to sentence and to encourage defendants who intended to plead guilty to do so at the first opportunity – rather than later in the criminal process. In the years preceding 2017, a significant proportion (approximately one-third) of trials were avoided close to the trial date for different reasons. A proportion of these so-called ‘cracked trials’ arose as a result of the defendant entering a guilty plea well after the first opportunity. The guideline was not intended to affect the overall rate of guilty pleas entered.
  • Research conducted prior to the introduction of the latest guideline revealed that courts were broadly following the 2007 guideline’s recommended reductions. Thus, almost all (89%) of defendants who entered an early plea received the one-third reduction recommended by the 2007 guideline. The empirical pattern of reductions diverges to a greater degree for pleas entered at a later stage due to circumstances such as late service of evidence or late compliance with disclosure obligations. No comparable data have been published to determine whether the pattern of sentence reductions has changed as a result of the new guideline.

Whole Life Orders: Attorney General’s Reference (R. v McCann); Attorney General’s Reference (R. v Sinaga)

11 December 2020

What is a Whole Life Order?

When imposing a life sentence (which is mandatory on conviction for murder but discretionary for other certain serious offences, like manslaughter and rape) a judge has two options: they must either specify a minimum term which must be served in full before release can first be considered by the Parole Board or, alternatively, impose a Whole Life Order (WLO) which determines that the offender is never eligible to be considered for release. Although WLOs have become more common in the last two decades, they are still imposed rarely and on 30 September 2020 only 0.9% of prisoners in custody serving a life sentence (62 out of a total life sentence prison population of 6,945) were serving a WLO (Ministry of Justice (2020) Offender Management Statistics, Prison Population: 30 September 2020, Table 1.9a). All 62 people serving a WLO had been convicted of at least one murder.

In McCann; Sinaga the Court of Appeal had to decide whether or not the two cases before the court merited a WLO. Following today’s Court of Appeal decision, it remains the case that all whole life sentence prisoners in England and Wales have been convicted of murder.

Whole Life Orders for non-murder offences

Since the imposition of the first whole life sentence in England and Wales in 1988, no prisoner has ever served such a sentence for any offence other than murder. In 2012, a WLO was imposed on Michael Roberts at the Crown Court for a series of very serious sexual offences but this was subsequently reduced to a minimum term of 25 years by the Court of Appeal. In that judgment, the Court of Appeal stated that: ‘The Whole Life Order is reserved for the most exceptional cases. Without suggesting that the court is prohibited from making a whole life order unless the defendant is convicted of at least one murder, such an order will, inevitably be a very rare event indeed’ (R. v Oakes and Others [2012] EWCA Crim 2435 at [102]).

In McCann; Sinaga the Court of Appeal considered whether a WLO was appropriate in two recent cases involving exceptionally serious sexual offending. In December 2019, Joseph McCann was sentenced to life imprisonment with a minimum term of 30 years having been convicted of seven counts of rape, one count of the rape of a child under 13, three counts of sexual assault, one count of causing a child under 13 to engage in sexual activity, seven counts of kidnap, 10 counts of false imprisonment, one count of attempted kidnap, and two counts of committing an offence with the intention of committing a sexual offence against a total of 11 victims. In January 2020, Reynhard Sinaga was also sentenced to life imprisonment with a minimum term of 30 years having been convicted of 136 counts of rape, eight counts of attempted rape, 14 counts of sexual assault, and one count of assault by penetration against a total of 48 victims. It is believed that these were the longest sentences ever imposed in England and Wales for sexual offences. These sentences have now been increased to minimum terms of 40 years.

What are the implications of this judgment?

This is a significant decision by the Court of Appeal as, by declining to impose WLOs in these exceptionally serious cases, the availability of a WLO for an offence other than murder remains purely theoretical. However, the Court of Appeal did, for the first time, specifically articulate examples of possible non-murder offences that might merit WLOs – serious acts of terrorism that do not result in a death.

Are there any other restrictions on the imposition of Whole Life Orders?

It is considered that, as a matter of law, a judge cannot impose a WLO on anyone who was under the age of 18 at the time of the offence, irrespective of the seriousness of that offence. At present, this prohibition also extends to people aged 18 to 20 at the time of the offence. However, following the sentencing in August 2020 of Hashem Abedi (who was sentenced to life imprisonment with a minimum term of 55 years following his conviction on 22 counts of murder for his involvement in the Manchester Arena bombing in 2017 when he was aged 20) the Government has proposed in its recent White Paper to make WLOs available to sentencing judges for offenders aged 18 to 20 at the time of the offence in ‘extremely exceptional’ cases (Ministry of Justice (2020), A Smarter Approach to Sentencing, p. 31).

Can a prisoner serving a Whole Life Order ever be released from prison?

The legal status of a WLO in England and Wales has been the subject of much scrutiny in recent years. There is, at least in theory, a release mechanism open to prisoners serving a WLO as the Secretary of State for Justice has the power, under section 30 of the Crime (Sentences) Act 1997, to release any life sentence prisoner on compassionate grounds in ‘exceptional circumstances’. Although this power has never been exercised in relation to a prisoner serving a WLO, its existence eventually convinced the European Court of Human Rights in 2017 (Hutchinson v the United Kingdom [2017] ECHR 57592/08) that WLOs were in fact ‘reducible’ (as there was the possibility of release) and therefore compliant with Article 3 of the European Convention on Human Rights (the right not to be subjected to inhuman or degrading treatment or punishment).

The full judgment is available here: McCann, Sinaga & Shah judgment

Victim Personal Statements and Sentencing: A review of policy, operation and research

23 November 2020

The Sentencing Academy has published a review of the operation of Victim Personal Statements in England and Wales by Elspeth Windsor and Julian V. Roberts.

Read the full report here:

Executive Summary:

• The role of the victim at sentencing is one of the most active areas of policy and research in the field of sentencing. Victims now provide input into many stages of the criminal process, beginning with bail decision-making and ending with parole. This input usually takes the form of an impact statement which is then considered by courts and parole authorities. This paper explores victim input at the stage of sentencing in England and Wales.

• The Victim Personal Statement (VPS) scheme has been operating for almost 20 years, without any official review of its operation. The primary purpose of the VPS is to allow the victim to document the impact of the crime, and not to provide a recommendation for sentencing. This report reviews recent research and data trends with respect to the use of VPSs at sentencing.

• All crime victims in England and Wales are entitled to make a VPS to be considered by the court at sentencing. Submitting a VPS is optional and the guidance is clear that a victim’s decision not to submit a VPS should not result in any adverse inferences at sentencing. The right is specified in the Code of Practice for Victims of Crime (Victims’ Code) which states that victims of crime are entitled to be offered the opportunity to make a VPS.

• Until it was discontinued in 2010, the primary source of information about victims was the Witness and Victim Experience Survey (WAVES). Today, the Crime Survey of England and Wales (CSEW) is currently the principal source of information about victims’ experiences and responses.

• All respondents to the CSEW who reported a crime to the police are asked whether the police gave them an opportunity to submit a VPS. Across the most recent administrations of the Crime Survey of England and Wales only 13% recalled receiving an offer. The percentage of respondents recalling a VPS offer has changed little over the past six administrations of the CSEW. It is unclear whether victims were offered a VPS, but then failed to recall the offer or whether they never received an offer.

• There was little regional variation in the recall of offer rates: the lowest recall of offer rate was 11% (in Yorkshire and Humberside) and the highest in the Southwest (17%).

• Of the victims who recalled being offered the opportunity to submit a statement, approximately half the victims (53%) stated they had submitted a VPS.

• CSEW respondents are asked the following question: ‘Do you feel that what you said in your Victim Personal Statement was taken into account by the Criminal Justice System?’. The latest administration (2018-19) found the following distribution of responses: ‘Yes, completely’: 35.3%; ‘Yes, to some extent’: 30.4%; ‘No, not really’: 13.0%; ‘No, not at all’: 21.0%.

• Since the CSEW does not probe respondents’ reasons for submitting or refraining from submitting a statement, it is unclear why only a small percentage of crime victims ultimately submitted a VPS for the purposes of sentencing.

• Research from other jurisdictions suggests that the use of VPSs do not systematically increase sentence severity. In general, victims who submit an impact statement report being more satisfied with the sentencing process, and indicate that they would submit a statement in the future if they were victimised again. Research in England and Wales has yet to adequately address these questions.

• Current knowledge of the strengths and weaknesses of the regime is insufficient to determine whether the VPS has achieved its objectives. In light of its importance as a primary vehicle for victim input into sentencing, the VPS regime should be subject to a comprehensive evaluation, and the 20th anniversary is a good opportunity for this to take place. The report concludes by identifying a number of research priorities. These include further investigation of the low recall of offer rate, as well as exploration of the reasons why approximately half of all crime victims decline to participate in the VPS scheme.