Written evidence submitted by the Sentencing Academy (OUS0002)

The Sentencing Academy is a charitable incorporated organisation, founded in 2019, dedicated to promoting the use of efficient and effective sentencing practices in England and Wales and to improving public understanding of sentencing. We welcome the Committee’s interest in this area and many of our responses are informed by a report we published earlier this year that explores some of the key themes of this Inquiry.[1]

1. What is public opinion on sentencing and how should it be measured?

Public opinion on sentencing is diverse, and people vary in the extent to which their opinions are considered. Most people have some views on whether sentencing is tough enough, for example, and their ‘top of the head’ views can be readily measured through population surveys such as the Crime Survey for England and Wales. For reasons discussed below, it is important for policy to be aware of these views and to take them into account to some degree. It is equally important for policy to be informed by people’s more considered views, when they have had the time and information needed to think through the issues. This is particularly true for the subject of sentencing which generates strong opinions. Sensitive research, using both qualitative and quantitative methods, is needed to gain an appreciation of these more subtle public opinions. The authors of this submission have extensive experience in monitoring and researching public opinion on sentencing in England and Wales and elsewhere.

2. Public knowledge: What does the public know about current sentencing in England and Wales?

Knowledge of key elements of current sentencing practice is poor and has changed little in 30 years.[2] Misperceptions persist. There are two principal areas in which public knowledge is poor:

(i)                 The nature and consequences of some sanctions (e.g., ‘What exactly is a suspended sentence order (SSO)?’; ‘How onerous are the requirements of a community order?’)

and

(ii)               Estimates of current sentencing practice (e.g., ‘What is the Average Custodial Sentence Length (ACSL) for specific crime types?’; ‘What percentage of offenders convicted of such crime are sent to prison?’).

With respect to number (i), public knowledge of sanctions is poor. This in part because most sanctions (such as the SSO) are complex. The meaning of a sentence of imprisonment (in terms of the percentage of the sentence served in prison) is hard to explain to the public. Recent legislative reforms making offence and sentence length influence the proportion of the sentence to be served in custody has further increased the complexity of a prison sentence. Of course, some sanctions need to be complex so they can be adapted to the individual circumstances of offenders. But little effort has been expended to make them as clear as possible. The complexity of some sanctions, such an immediate prison sentence, is a barrier to improving ‘how sentencing works’. Much more could be done to clarify the way that sentences function. Some progress in this direction would improve public understanding of 'how sentencing works'.

Research by the Sentencing Council found a majority of the public expressed confidence that they understood what key sentences (such as ‘life sentence’) involved. However, on further probing respondents’ level of knowledge, researchers found that their understanding was in fact limited.[3] Deeply embedded misperceptions in the public consciousness act as an additional barrier to public understanding.

With respect to knowledge of current sentencing practice, the recent Sentencing Academy (SA) report documents the extent of public misperceptions. A couple of examples are worth citing here.

The SA’s survey asked the following question: ‘In your opinion, over the past 25 years (i.e., since 1996), has the average prison sentence become longer, stayed the same or become shorter?’

The correct answer is that sentence lengths are longer now than in 1996. However, most respondents were unaware of the increase in sentence lengths over this period. Over half (56%) endorsed the view that sentences are shorter now (19% ‘much shorter’; 37% ‘somewhat shorter’).

When asked about specific offences, public estimates of imprisonment rates and average sentence lengths were also highly inaccurate. Most people underestimate both custody rates and sentence lengths.

Public knowledge of sentencing trends is both poor and biased, manifested in the systematic under-estimation of severity of current practice. A circular relationship has developed: the general public believe that sentencing is too lenient. Misperceptions of the average prison sentence then colour attitudes to sentencing and sentencers. Thus, respondents in the 2021 Sentencing Academy survey who expressed the view that sentencing was ‘much too lenient’ were significantly less accurate in their estimates of sentencing practice than those who thought that sentencing was ‘about right’. More specifically, those favouring tougher punishment tended to underestimate the current use of imprisonment.

3. Sources of public knowledge of sentencing

It is obvious – but important – to observe that the news media constitute the public’s primary source of information on sentencing policy and practice. The news values of commercial media work against the provision of balanced information. News reports focus on high profile cases, and sentences which are defined as newsworthy. This generally means sentences which appear at first glance to be unusually lenient. The Sentencing Council’s 2019 report questioned whether news readers were getting a balanced a picture of sentencing. News media outlets seldom provide a statistical background for the public to contextualise a particular sentence. Research in human judgement has demonstrated how people draw general conclusions from a single case – which may well be very atypical of all sentences for the crime in question.[4] Members of the public often fail to appreciate that the sentences reported in the news media are unrepresentative of sentencing trends more generally.[5] Improving the accessibility of key statistics on sentencing practice would make it easier for reporters to provide this necessary context (see below).

Public trust in sentencing and sentencers is unlikely to improve unless some progress is made to increase awareness of current practice.

4. Should public opinion inform policy and practice?

This issue is much debated in the academic literature. We believe that the Sentencing Council should be aware of public attitudes to sentencing, but not blindly follow it. Lord Justice Auld made this point over 20 years ago when he noted in his report that good sentencing was a cause and not a consequence of public confidence in the courts.[6]

Awareness of public attitudes comes from monitoring opinion research, and conducting original research whenever possible. The Sentencing Council has in fact conducted a small number of studies in its 12-year history. To our knowledge, this is how the Council currently considers public opinion. We would, however, encourage the Council to consider what further steps it could take to incorporate the public’s views into the development of their guidelines. The recent volume[7] of public consultations on draft guidelines perhaps inhibits a thorough engagement with the public. Hence, we would recommend taking less but more in-depth consultations that allow for a more meaningful discussion where stereotypes about leniency in sentencing can be more fully explored.

5. The relationship between public understanding and public trust

If the public do not understand why and how particular sanctions work, their level of trust in sentencing and sentencers will diminish. Contemporary sentencing policy and practice is complex. As noted earlier in this submission, some of this complexity is necessary to permit courts the discretion to respond to the individual characteristics of offenders and offences. The challenge for the criminal justice system and the sentencing process is to explain the features of sentencing which confuse the public. Any unnecessary complexity should be stripped away. And then efforts should focus on the areas of outstanding disagreement between current practice and public opinion. These contribute the most to undermining public trust.

Many studies have demonstrated that public trust in criminal justice, and in sentencing in particular, can be improved by the provision of information about cases.[8] One of the earliest demonstrations of this phenomenon involved a randomised experiment in which groups of people drawn from the general public were asked to evaluate sentencing decisions. Some subjects had been provided with minimal information, or news media summaries of sentences. Others had been given more information from the actual case files. Results demonstrated that the group given adequate information held more positive views of the sentence imposed and the judge. More recently, researchers measured public confidence and public knowledge before and after members of the public read a booklet containing facts about the criminal justice system. After reading the information there was a significant positive change in confidence in the criminal justice system, and knowledge of criminal justice improved.[9]

6. Improving public understanding of sentencing

Improving public knowledge will help improve understanding and attitudes to sentencing. It is well-documented, across different jurisdictions, how enhancing knowledge of sentencing improves attitudes towards sentencers and the sentencing process. Several steps are suggested:

1. Make sentencing statistics more readily available for media outlets and other users. In addition, publish key trends in periodic online reports and data releases. The Home Office used to publish a periodic ‘Digest’ of criminal justice statistics in hardcopy. This public-facing document contained clear graphics illustrating key facts and recent trends in sentencing. The Ministry of Justice (MoJ) should create a similar online publication and perhaps co-host it with the Sentencing Council. This document would illustrate trends in sentencing – e.g., the overall imprisonment rate, the average prison sentence length, etc. The availability of clear and accessible statistics would also be of benefit to the news media when reporting individual sentencing decisions. It is important that the public has broadly accurate knowledge of current sentencing practice. Even if people have very accurate views of judicial practice, views of the appropriateness of sentencing will vary. Some people may still feel sentences are too lenient, but this view should be based on accurate knowledge. More (and better) information about sentencing is needed.

2. Strategies for improving public knowledge should aim to reach target audiences both through traditional communication media and through social media. The traditional print and broadcast media will probably lose much of their public reach over time, as new forms of media dominate.

3. The MoJ should give more thought to the nature and coverage of its statistical releases in this area. At present it simply rolls out a quarterly update.[10] This ‘snapshot’ approach to releasing statistics is of little use to anyone seeking insight into longer term trends. An annual portrait accompanied by some clear graphics of historical (multi-year) trends would be far more useful. People need to know key statistics about sentencing – such as the average prison sentence. They also likely would like to know more about the costs and cost effectiveness of sanctions. In an era of fiscal restraint the public are entitled to know whether the sanctions currently imposed by courts are being deployed in the most cost effective way. In order to know this, they should be given the latest statistics on re-offending rates and the average costs of different sanctions.

4. Perhaps the MoJ could consider a public and professional consultation, asking key stakeholders to identify the key statistics from their individual perspective. Results of such a consultation could then guide the construction of a more accessible series of statistical releases.

5. Agencies engaged in sentencing such as the MoJ, the Sentencing Council and others could mount periodic information sessions for journalists to ensure that the information they need to explain sentencing decisions is readily available. It may be useful to also mount engagement sessions for other key stakeholders such as Parliamentarians.

6. For many years, the Magistrates Association has operated its ‘Magistrates in the Community’ initiative to increase public understanding of the magistrates’ courts.[11] This initiative should be supported and expanded. A comparable exercise should be considered for Crown Court sentencing. The recently announced initiative to televise proceedings from the Court of Appeal may also play a useful role in community education.

7. Outreach to specific communities with low trust in the courts: There is a need to identify and reach out to those groups and communities in society who have least trust in the sentencing process. Research published by the MoJ, the Sentencing Council and the Sentencing Academy has demonstrated that certain profiles of offender are more likely to be imprisoned and for longer periods --- for certain offences at least.[12] It seems reasonable to conclude that the communities from which these offenders come will express less trust in the courts. If this is the case, focused outreach initiatives should be undertaken.[13]

Finally, with respect to addressing the well-documented ‘gap’ between sentencing policy/ practice and community views, a natural first step would be to document the aspects and elements of current sentencing policy and practice which generate the greatest public criticism. Some areas have been documented – e.g., very significant sentence reductions for a guilty plea are unpopular – but it would be useful to know which other issues are of greatest concern. Remedial efforts could then focus on these specific points, with a view to explaining the basis of current practice more clearly. Blanket attempts to promote public trust or improve public attitudes are unlikely to be effective.

Sentencing Academy,

Julian Roberts, Jonathan Bild, Jose Pina-Sanchez and Mike Hough,

19 July 2022