Lord Justice William Davis.

Q42 The Chair: Good morning again, and welcome to our witness, The Right Honourable Lord Justice William Davis, the chair of the Sentencing Council for England and Wales. The Sentencing Council, of course, was referred to in the session we have just had with the Chief Executive of the Magistrates’ Association. He referred to the decline in the use of community sentences on the sentencing guidelines. I have to say that, at the end of our session, he said he felt that the Sentencing Council consults a lot, and was complimentary, but I wondered whether you would like to comment on that. I cannot say that we developed the point very much.

Lord Justice William Davis: There are two kinds of sentencing guidelines. There are guidelines relating to specific offences: burglary, robbery, theft, all the rest of it. We prepare those guidelines by reference to the level of culpability of the offender and the degree of harm. We grade culpability and harm, and we then come up with a table or grid with starting points. The most serious is potentially a long prison sentence, and the least serious is a community order.

Save for very serious offences such as rape or manslaughter, most guidelines will refer to a community order either as a starting point or somewhere within the range of sentencing options. I am afraid I am not quite sure what he means when he says that the guidelines do not allow for community sentences, but, perhaps more importantly, the second species of guideline is what we call overarching guidelines, the most important of which for today’s purposes is the imposition guideline.

The clue is in the title. It is the imposition of community and custodial sentences. As it currently stands, the guideline begins with a rehearsal of where community sentences should be imposed and the criteria that are applicable, before only then moving on to the potential for custodial sentences. The thrust of the imposition guideline as it stands is to require the sentencer, save in cases that are so serious that a long imprisonment is obviously going to follow, to go through a gradation of sentencing options. You may or may not know that we are in the process of revising that guideline and it will become more comprehensive. I am sure the place of the community sentence will become even more prominent.

Q43 The Chair: I was going to ask you about the exercise you are about to start, or perhaps have just started, on the revision. What factors do you take into account in preparing guidelines?

Lord Justice William Davis: I have explained how offence‑specific guidelines work. In terms of the imposition guideline, which we are working on at the moment, we take a whole range of factors into account. All of this is speculative, to a degree, because we have yet to consult on the draft guideline, but it is so near completion that I can say it is highly likely that we shall be consulting on a guideline that makes reference to how effective a sentence is and to particular kinds of offenders—female offenders, young adult offenders—thereby creating further room for community disposals rather than custodial.

The Chair: I know there are a couple of statutory consultees. It is in the nature of this sort of consultation that you just hope to gather in anyone who feels they have something useful to say. Do you consult victims, for instance, formally, or try to find victims who can give you views? What other consultees are there? Does relative cost effectiveness come into the assessment?

Lord Justice William Davis: I will deal with the last point first, because it is relatively straightforward. We have to do a resource assessment for every guideline. For specific offence guidelines, we do our best to assess whether they will have an impact on the number of prison places, because that is the principal resource. Sometimes we say “neutral”. There may be cases where there is a significant impact. That is how we deal with resource and impact.

As for the range of consultees, on the Council itself there is a victims’ representative, for want of a better word. It is currently Diana Fawcett, who is the chief executive of Victim Support, so there is a voice on the Council for victims. You are quite right: we have a very limited range of statutory duties on consulting, but we can only hope that, by publicising our guidelines as widely as possible, we can get people responding. We put out press releases; we hope to get press and media coverage.

For instance, in the recent consultation exercise in relation to motoring offences and causing death by driving, we had a substantial response, both from organisations concerned with the victims of road deaths and from the families of victims. You can always say you can do better, but we engage as widely as we can in the consultation process.

The Chair: I should have asked Lord Sandhurst whether he wanted to declare a non-interest.

Lord Sandhurst: Sir William, we have met in the past when I practised as Guy Mansfield.

Lord Justice William Davis: Yes, I am well aware.

Lord Sandhurst: You are aware. I just thought I should make it clear that we did know each other, if not intimate friends.

The Chair: We will not pursue that last remark!

Q44 Lord Filkin: I have a general question about the processes by which there is a dialogue between the Sentencing Council and the Probation Service. I wonder whether you could expatiate a little about the formal and informal ways that feedback and liaison takes place.

Lord Justice William Davis: On the Council itself, there is somebody there to represent people who have experience of rehabilitation, and in practical terms that means a past probation officer. The current incumbent is Beverley Thompson, who had a number of roles in the Probation Service, including as Chief Executive of the Northamptonshire Probation Service. She brings her probation knowledge to the Council.

We liaise closely with the National Probation Service. For instance, in the imposition guideline, officials from the Council have been discussing with senior officials of the National Probation Service a whole range of factors relating to the guideline, requirements and how they work, and the feasibility of particular types of order. We liaise closely with the Service that we know will have to put this guideline into operation. That has been the case for a long time.

I will give you an example. In 2018, my predecessor as Chair was concerned about the drift towards suspended sentences as an alternative to community orders. He discussed that with the National Probation Service, which agreed that in its reports it would not actively suggest a suspended sentence. In other words, it would say, “This is a community order, or we can offer these options in the community”, without naming a suspended sentence. That kind of liaison is important to the work of the Council. It was active then and it continues today.

Lord Filkin: I presume the Sentencing Council would also have up‑to‑date sight on the trends in disposals from the magistrates’ courts. You would know whether there were movements in suspended sentences, as you have implied, but also in community sentences. You would be well‑sighted on those movements in both the short term and the medium term.

Lord Justice William Davis: We have to rely on MoJ and HMCTS data, but, yes, we have sight of that data.

Q45 Lord McInnes of Kilwinning: Good morning. Thank you for coming before us. Following on from Lord Filkin’s question, I want to ask about the general trend in community orders. Over the last 10 years the number of community orders has fallen disproportionately, it is fair to say, relative to all other orders. I would just be interested in your view as to why that is. How do you see the sentencing guidelines interacting with that trend? Is there a reason? Is there a relationship between the two? Have you been thinking about that in drawing up the new guidelines?

Lord Justice William Davis: I am not sure that I entirely accept the underlying premise of your inquiry. If we look at people who are sentenced for indictable‑only or either‑way offences—offences that could involve prison—you are quite right. Since 2016 there has been a steady decline in absolute numbers of community sentences, and there was a real dip at the time of Covid, perhaps for obvious reasons.

There has also been a steady decline in suspended sentences and immediate custody, and that is partly because of fewer people coming into the system. The proportion of people getting community sentences in 2016 was about 17%, and the year before last it was 18%. It has been fairly steady. There was a huge drop after 2005. Between about 1991 and 2005, you could get a suspended sentence only if there were exceptional circumstances relating to either the offence or the offender. Suspended sentences were rare. That changed in 2005, and there was a dramatic increase in suspended sentences and a corresponding fall in community orders. If you had been asking that question 10 years ago, it would have been entirely legitimate, and that would have been one reason for it, but at the moment the usage of community sentences in proportionate terms is relatively steady.

There was a period from 2013 to 2015 when the National Probation Service was changed or, some would say, dismembered. It is impossible for me as the Chair of the Sentencing Council to say that there is empirical evidence of judges and magistrates losing confidence in community sentences, but there is considerable anecdotal evidence. We as the Council are constantly talking to judges and magistrates about different guidelines and aspects of sentencing as part of our evaluation process. In the course of those conversations from 2015 to 2017 it was a theme that judges and magistrates felt—“We simply do not think that the orders we are imposing will be enforced”. That is historical and does not apply any more.

Lord McInnes of Kilwinning: Another of the reasons we have heard about has been an issue with the consistency of pre‑sentencing reports, as well as confidence, which feeds into the confidence that a magistrate would have in serving a community order. Is that something you recognise?

Lord Justice William Davis: Speaking for the Council, which is what I am obviously here to do, I cannot say that we do necessarily recognise that. Currently, the National Probation Service is working very hard to maintain consistency and improve pre‑sentence reports across the piece. Indeed, it is working with the Council in preparing what it calls a template, so that each and every report, where it is relevant, can reflect the applicable sentencing guideline, which is obviously of significance to sentencers.

I am speaking here purely personally, because I sentenced people for 30 years. I no longer do, but for a long time I did. Before that I represented people with probation reports. On a purely anecdotal and personal level, I would have said the quality of reports is consistently better now than it was then.

Lord McInnes of Kilwinning: That is very interesting.

The Chair: The MoJ figures that we have in front of us start in 2012, which is why we see that very steep drop. Perhaps we should be asking the MoJ to provide us with a much longer timeframe to show the increase and then the drop that you have referred to.

Q46 Lord Blunkett: I would love to be able to ask you questions about how we learn from the past and apply to the future, but I will narrow my question because the Halliday report in 2001 led substantially to those increases in suspended sentences, but they were supposed to be part of a matrix and they never were.

Can I just return to the Chair’s opening question, which comes back to the strategic objectives set out in 2021 for a five-year period for the Sentencing Council to collate and therefore analyse, effectively, what worked in preventing reoffending. It is a broad question, but have you come so far with this now that you can reflect on how different disposals at community order level are working, and are there things that you would recommend we put in our report that would help?

Lord Justice William Davis: If I am honest, the Council cannot really drill down to that level: “Does this kind of rehabilitative order work against that kind of rehabilitative order?” We simply do not have access to the data for that. At the moment, we are working on a slightly higher level, in the sense that we are concerned with the question, “Of a short to medium‑term prison sentence or a community order, which is more effective? Which is more likely to reduce offending and increase desistance?”

Last September, we published a major review of all the literature collating all the research that has been done in the last five to 10 years. There are no definitive answers, because effectiveness in sentencing is a bit of a moveable feast. People have different definitions of reoffending and rehabilitation, but we did that research.

The real headline conclusion, and probably the strongest conclusion that the team came up with from the evidence, was that shorter custodial sentences, particularly under 12 months, are less effective than community sentences at reducing reoffending. There is a wealth of research that the authors relied on for that.

In terms of our work on the new imposition guideline, we will try to reflect that—that is the plan, at least, subject to consultation—by having a section on effectiveness. The current guideline is silent on that topic. It will deal with effectiveness, with particular reference to shorter sentences. A relatively modest proportion of the current prison population, of which I shall say nothing more, are serving short sentences, but they are a constantly churning population. Over the year, there are tens and tens of thousands of people getting short sentences.

If we can do something to address the effectiveness of short sentences via our guideline, that is what we shall do, but I am afraid I do not think the Council has the resource to drill down and ask, “Is this kind of order going to be better than that kind?” The individual sentencer has to rely on what the author of the pre-sentence report says, what other material he or she has and, in the end, his or her own judgment as a sentencer.

Lord Blunkett: We are touching on something fairly fundamental here. It will be very important that you build in effectiveness, including with the grid you referred to at the beginning of your presentation. That is the matrix. Others will want to talk about what makes an effective intervention with a community order or beyond, but what we have discovered so far is that there are a large number of people who are recidivists, committing quite low-level offences, but very often. How can sentencing guidance deal with that situation?

Lord Justice William Davis: The serial shoplifter or the serial person who commits very minor offences when drunk is a very common phenomenon, particularly for magistrates. The current guideline does that to an extent, but certainly we anticipate that the new guideline will emphasise that the mere fact that you are dealing with somebody who has had 10 community orders in the past does not mean that you say, “Right, that’s the end of it. Off you go to prison”. You have to look at each case with the advice of the probation officers and others who have conduct of the case to see whether there is potential for some kind of rehabilitation.

At the end of the day, if you send these people to prison, it costs a lot of money, it does them no good, and they will come out and do it again. It is for the individual sentencer to reach the judgment on whether there is something in the particular case that allows yet another chance.

The Chair: You said that the Sentencing Council does not have the resources to pursue research that might be valuable. I am trying to think of who could. We look to academics a lot, but it is their choice as to what they research, so that probably leaves us with the MoJ. You may feel that this is an unfair question. I do not want to put you on the spot, as this is a public meeting, but should we be asking the MoJ to give you more resources?

Lord Justice William Davis: My head of office is sitting behind me.

The Chair: He is smiling.

Lord Justice William Davis: I am not surprised. We have a relatively small but highly‑skilled research team. They do an enormous amount of good work, but there are not many of them. There are various points at which they will say, “We’d like to do this in relation to looking at how this guideline is working”, and the Council will say, “Well, if you do that, are you going to be able to do the other?” Then you have to prioritise. In a perfect world, yes, there would be a much larger resource available to the Council to engage in what is one of its statutory functions, monitoring the effect of the guidelines.

The Chair: We may pursue some of that.

Q47 Lord Filkin: I go back to a question that Lord Blunkett asked, but it is one that we are stimulated by from the evidence we received from the Chief Inspector of Probation, Justin Russell. He suggested that there seemed to be what he called a gap in the disposal market between offences and available disposals. That is best illustrated by, but not limited to, the case of the shoplifter who repeatedly steals low-level goods to feed and fuel their drug habit. It is an offence pattern that is very well known to very many magistrates. If we understood him correctly, he was basically saying that because the offence is at a low level, the disposal it cries out for perhaps of being able to put that offender to a compulsory drug rehabilitation programme is not available. Is he right? Do you share that concern?

Lord Justice William Davis: Sorry, when you say, “not available”, do you mean that the sentencing court will not use it because it is a low‑level offence and a relatively high level of intervention?

Lord Filkin: Yes.

Lord Justice William Davis: If that is what is happening, it does not correspond with what is in the current imposition guideline. I have it here in hard copy, which is terrible; it is all online these days: “The seriousness of the offence should be the initial factor in determining which requirements to include in a community order”. That is where you start, but if, in the individual case, there is a clear requirement for some fairly intensive drug intervention for a low-level shoplifter, that is what should happen. That is made clear later on in the guideline. Subject to consultation, we will emphasise that still further in the revised guidelines. If sentencers are saying, “This was only stealing a packet of Maltesers from Tesco. Therefore, we can’t impose what is plainly needed”, that is not driven by the guidelines.

Lord Filkin: That sounds like quite an important point for you to clarify in your revisions, because we got the impression that that was the understanding of many sentencers, so they were not looking at the pattern of behaviour, which clearly implied that a short custodial sentence or a fine did not make much sense, and yet you wanted to have some disposal that could try to arrest what is a very irritating and expensive pattern of behaviour. We look forward to seeing that.

Q48 Baroness Meacher: I was very interested that the Chief Inspector of Probation suggested that perhaps sentencers need to make these six-month treatment programmes for addicts or mentally ill people more attractive. I do not know whether that is something you subscribe to. He said that maybe they should have their accommodation paid for through this treatment programme, instead of sending them to prison, short term, for a minor offence and then paying for accommodation when they come out. Would there be some value in their accommodation being paid and, therefore, attracting them to accept the idea of what is basically a very onerous sentence of a six-month or so treatment programme? This will probably be the most difficult thing they have ever done. I just wondered what your view is about the Chief Inspector’s proposal.

Lord Justice William Davis: Being chair of the Sentencing Council, I do not have a view, because the way particular orders work is nothing to do with judges and magistrates. A drug rehabilitation requirement is imposed. How that operates is up to the Probation Service. We as judges and magistrates do not say, “You will do this, this and this”. As an individual I can see good sense in what the Chief Inspector says, but the sentence imposed by the magistrate or judge is the statutory sentence. The ingredients of it and the minutiae are up to the deliverers of the order, who are now in the Probation Service.

Baroness Meacher: That is very helpful. You are saying that he is actually pretty sensible. He is representing the Probation Service and wanting these treatment programmes to work, because this is probably the best way of reducing reoffending. These are prolific offenders who come back to the courts over and over again. Sending them on a little bit of unpaid work is not going to do the trick. If they are still addicted or still mentally ill, they will simply go on with their offending. You understand where the Chief Inspector is coming from. It is sensible.

Lord Justice William Davis: Yes, absolutely.

Baroness Meacher: Somehow we need to increase the use of these rehabilitation programmes. They have to be available, which is where other bodies such as local authorities come in.

Lord Justice William Davis: Out of interest, and knowing that I was going to be giving evidence, I watched most of the Chief Inspector’s evidence. I have to confess that I did not stick it out to the bitter end.

Baroness Meacher: I am not surprised.

Lord Justice William Davis: At a later point in his evidence, he did say—I have no reason to think he is wrong about this—that there has been a significant drop in the use of drug rehabilitation requirements. As far as I know that is nothing to do with sentences. When I was sitting as a first‑instance judge in the Crown Court, for a particular kind of offender the drug rehabilitation requirement was a very useful tool in the toolbox.

Baroness Meacher: The drop in the use of those probably explains why he was saying we have to find some way of ensuring that these sentences really can be delivered effectively.

The Chair: You used the terms “minutiae” and “ingredients”. Would it be fair to say that the Sentencing Council obviously does not get involved in the minutiae, in the sense of what is imposed by particular courts for particular offenders, but it is for the Sentencing Council to make clear that there may be more ingredients and perhaps you should be using self-raising flour rather than plain flour? Could the Sentencing Council look at the detail of sentences, as Baroness Meacher referred to?

Lord Justice William Davis: What I meant was that a very common requirement is the Rehabilitation Activity Requirement expressed in a number of days. A sentencer will impose that. In the pre-sentence report, there will probably be some explanation of some of the work that will be done with the offender, but by no means all. The sentencer will impose that Rehabilitation Activity Requirement, frankly, in ignorance of precisely what will happen to the offender. That has always been the case. In the long-distant past when a judge imposed a probation order for two years, he or she imposed a probation order for two years and it was left to the Probation Service as to how it dealt with that individual offender. That was partially because you do not want to tie the hands of the Probation Service to say, “This is what you must do”, since things may change. The situation can be very fluid.

Q49 Lord Beith: Do you think courts know enough about what happens to the people they have sentenced?

Lord Justice William Davis: They probably do not. In times past—this is in the Crown Court; I do not know whether magistrates did the same—judges would ask for a short progress report from the supervising officer, after six months, three months, nine months, whatever, as to how X was getting on. I doubt that is done any more, because the courts have a clear understanding of the enormous pressures that the Probation Service works under. Again, it is all a matter of resource. Unless somebody comes back having breached whatever order it is, very often you really do not know what has happened to them. Things have got worse in that respect rather than better.

Lord Beith: As the Sentencing Council, you can encourage judiciary at all levels to look at the collective, general information that we have about the effectiveness of sentences. I just have this feeling that both a magistrate and a Crown Court judge should know about the circumstances of people who have come back to court from reoffending as well as those they do not see any more.

Lord Justice William Davis: Yes, I entirely agree. As I say, in times past, on a more or less ad hoc basis, judges and magistrates would do that, but generally speaking there is no formal system. I suspect those in the Probation Service would throw their hands up in horror if you told them they had to provide a report every six or 12 months in the currency of an order, not because they do not want to tell judges and magistrates what is going on, but because they have so many other things to do.

Q50 Baroness Shackleton of Belgravia: Good morning. Thank you very much for being with us today. My question relates to the connection, if any, between sentencing guidelines and restorative justice. What place do sentencing guidelines grant to restorative justice, if any? To what extent can sentencers consider restoration when deciding on a community order requirement?

Lord Justice William Davis: The sentencing guidelines do not specifically refer to restorative justice. You will not find any specific offence guideline reference to that, because in practical terms, for those who are sentencing offenders, restorative justice will be part and parcel of some kind of community disposal, generally speaking. That is not universal. Of course, there are people who are sent to prison and engage in restorative justice, but that is not part of the sentence. If restorative justice plays a part in the sentence, it will depend on the individuals who present reports to the court.

I speak as somebody who sits in the Court of Appeal Criminal Division rather than as the chair of the Sentencing Council when I say that, dealing with probably hundreds of appeals against sentence each year and seeing many, many pre-sentence reports, it is unusual to see a reference to restorative justice. That may be because those are the sorts of cases that never get to the Court of Appeal anyway.

My understanding is that there are mixed views as to the place of restorative justice. Some think it is of enormous benefit, others do not, but the guidelines—the new imposition guideline will do the same—direct sentencers to consider community disposals, and that will usually be the context in which restorative justice arises.

Q51 Lord Blunkett: I would just like to explore the recommendations that you are formulating for consultation and putting in the public arena with experiments that are about to commence in relation to problem-solving courts; the relationship between the guidance given on the grid and the matrix you talked about at the beginning; and the flexibility required if problem-solving courts are to work.

Lord Justice William Davis: In Liverpool they are up and running, as I understand it. I was speaking to a judge from Liverpool only last week who was saying that they are already starting to deal with cases in the problem‑solving court there.

It is important to remember that sentencing guidelines and the table or grid, whatever we care to call it, are not fixed. We do not run any kind of American system here: “There’s the offence, there’s the degree of capability, there’s the harm. That’s the sentence”. A sentencer can, in the interest of justice, go outside the guideline, up or down, depending on the circumstances.

I suspect it would be unusual for a case that fell into the problem-solving courts not to be one for which, in any event, the guideline permitted some form of community disposal to be used, but, even if it did not, the guidelines do have this get-out clause, if I may put it that way. We shall have to wait and see how the problem‑solving courts find the use of guidelines in that context. We shall certainly be liaising with the pilot courts to see whether there are particular issues that are affecting them.

Lord Blunkett: Is there any disposal outside life sentences that does not fall into the category of having that flexibility to sentencers?

Lord Justice William Davis: Do you mean mandatory life sentences?

Lord Blunkett: Yes, outside that which is clearly mandatory by nature.

Lord Justice William Davis: No. Theoretically, for the most egregious form of repeated sexual offending a sentencer could take an exceptional course, but sentencers understand that the guidelines are there to promote consistency and an appropriate response to whatever the level of offending is. Yes, you are quite right. Leaving aside mandatory life sentences, the guidelines can always be departed from. Sentencers apply them given the seriousness of the offence.

Lord Beith: They do so at the risk of an “undue leniency” approach being taken.

Lord Justice William Davis: Absolutely, yes. Any sentencer will be aware that if they depart from the guideline and fail to explain themselves properly, or explain themselves properly but not to the satisfaction of the Attorney-General, they may well find themselves in the Court of Appeal Criminal Division.

The Chair: You are reminding me of the small but very important distinction between guidelines and guidance. Yours are guidelines. That gives a little more flexibility to the sentencer, as I understand it.

Lord Justice William Davis: Yes. We are keen on the Council to make the guidelines, so far as they can, reflect what real sentencers want to do in real life. There will always be the unusual or exceptional case, which is why statute permits, in the interests of justice, the sentencer to go outside the guidelines. We do not start from the proposition, “We’ll just set out some guidelines and it doesn’t really matter. You’ll follow that”. We are very keen to reflect the approach that the ordinary, reasonable sentencer will take to any given set of circumstances.

The Chair: If there are no other questions from members, is there anything you would like to mention that you wish we had covered?

Lord Justice William Davis: No, I do not think so. Thank you very much for the invitation.

The Chair: If anything occurs, do get in touch with us. Thank you very much indeed for your time and your evidence.