Written evidence submitted by the Sentencing Council for England and Wales (OUS0020)

About the Sentencing Council for England and Wales

1.       The Sentencing Council for England and Wales is an independent non-departmental public body of the Ministry of Justice and was set up under the Coroners and Justice Act 2009 to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary. The primary role of the Council is to issue guidelines on sentencing, which every court must follow unless in a particular case the court is satisfied that it would be contrary to the interests of justice to do so.

2.       The Council is currently chaired by Lord Justice William Davis and in total there are 14 members (including the Chairman) with the qualifications for appointment laid out in statute. Eight are judicial members, appointed by the Lord Chief Justice with the agreement of the Lord Chancellor, who together represent the full range of courts responsible for sentencing in criminal cases – from the lay magistracy through to the Court of Appeal. There are six nonjudicial members, who are appointed by the Lord Chancellor with the agreement of the Lord Chief Justice, and together they represent a broad cross section of those who work within the criminal justice system or are impacted by it.

3.       The Council’s response is to a large extent focussed on providing factual information on research that it has commissioned on areas covered by this inquiry.  In relation to Question 7, the Council has limited its response primarily to the ‘policy and practice’ as it relates to the way that the Council undertakes its work. 

Q1 – What does the public know about the current approach to sentencing in England and Wales?

4.       In August 2019, the Sentencing Council published findings from research[1] that explored public confidence in, knowledge of, and attitudes towards sentencing and the criminal justice system (CJS). The research comprised a literature review, two online surveys (one conducted in 2018 and a follow up in 2019), discussion groups with the general public, in-depth interviews with victims of crime and a media analysis.

5.       The second online survey of 2,226 respondents found that between 49% and 77% of respondents were ‘very’ or ‘fairly confident’ that they understand specific terms used in sentencing: at the upper end, 77% were ‘very’ or ‘fairly’ confident they understood the term ‘life sentence’ and 70%, ‘community sentence’. Over 60% said they understand the terms ‘statutory minimum sentence’ and ‘statutory maximum sentence’. The lowest proportion – 49% – was associated with the term ‘on licence’.

6.       However, when these concepts were explored further in discussion groups, it was found that in reality, understanding was quite low. For example, participants in the groups most commonly associated a life sentence as being a prison sentence of 25 years, with very few being aware that a life sentence meant the offender would remain on licence for the rest of their life. Regarding ‘on licence’, the term was linked in discussion to ‘on probation’, ‘on parole’, ‘on remand’ and ‘on bail’, and some participants sometimes associated the ‘licence’ with permission to do something (as in obtaining a driving licence). Understanding of community sentences did, however, indicate some knowledge that they may have different requirements, with participants mentioning litter-picking, work with charities and work on community projects.

7.       In terms of knowledge of sentencing guidelines, both surveys found that around two-thirds of the public surveyed said that they were aware of sentencing guidelines before taking part in the research. Members of the public taking part in the first survey (2,000 respondents) who previously had involvement with a criminal court case were more likely than those who had not to say they had heard of guidelines before answering the survey (78% versus 59%). In addition, respondents over the age of 35 were more likely to say that they had been aware of guidelines before the survey, in comparison with under 35s (this may reflect the greater likelihood of experiencing elements of the CJS – for instance, being called for jury service – as one grows older). Men were also more likely than women to say that they had previously been aware of sentencing guidelines, as well as those from the highest socioeconomic group as opposed to other socioeconomic groups, and White adults compared to adults of other ethnicities.

8.       Discussions with members of the public did, however, again indicate that in-depth understanding is limited and that they often required explanation or clarification about sentencing guidelines. 

Q2 – How does the public access information on sentencing? 

9.       Findings from the first survey showed that, in general, engagement with news was high, with many finding out about the news at least weekly (91%) or at least daily (76%). The majority preferred to find out about news through watching news and current affairs programmes (66%) or documentaries (50%). Regarding the one source most commonly used, broadcast media is top at 40%, followed by online media at 27%.

10.   The qualitative discussions indicated that certain criminal investigations and cases could grab their attention. People most frequently recalled these cases sometimes because the crime was serious or uncommon or because the story was perceived as unjust to the victim or defendant. They acknowledged that recent or well-publicised crimes tended to ‘stick’ with them. The public also remembered cases that had a personal interest or connection for them; local crimes therefore often have high recall in a community (e.g. knife crime in London). 

11.   The 2018 survey also indicated the role of personal contact with the criminal justice system in influencing people’s knowledge, understanding and attitudes towards sentencing. Respondents in the 2018 survey were most likely to have been in contact with the police (47%) and the criminal courts (24%); only 7% to 10% had been in contact with Victim Support, Probation Service or Witness Support. A key drivers analysis found that having had contact with the police was one factor which increased a perception that sentencing is too severe.

Q3 – What are the barriers to improving public awareness of how sentencing works? 

12.   The Council’s public confidence survey (as above) showed that people’s impressions of the CJS tended to be derived from two key sources: media coverage and popular culture. 

13.   When discussing the CJS, respondents frequently made reference to recent cases they had seen in the news. The media tend to report on cases that are outliers in some way, which is what makes them newsworthy. They report on the outcome of cases, ie the sentencing, but do not often shed light on the judicial decision-making processes that led to those outcomes. Respondents to the survey recognised that cases covered by the media were likely to be out of

the ordinary but referenced them nonetheless in order to exemplify ways in which the system was ineffective or unfair. 

14.   Media reporting of sentencing also tends to perpetuate common sentencing myths such as that offenders given community sentences ‘walk free from court’ and that life sentences do not last for life.  Two former Sentencing Council Chairs have previously drawn attention to this as an issue.  In evidence to the Justice Select Committee in February 2022, Lord Justice Holroyde said: “One of the problems we face is that, for perfectly understandable reasons, media reporting of cases generally does not go into details of all the judge’s or magistrate’s reasons for a particular sentence. There tends to be an interest in the headline points, so that can lead to criticisms that are not necessarily fully informed about all the relevant circumstances.”[2]   And on 11 June 2018, Lord Justice Treacy said in his Dame Ann Ebsworth Memorial Lecture, “There is a real problem in this respect which is created by the way in which the tabloid press reports sentencing decisions as lenient.  The Council knows from its own experience of launching new guidelines that there are certain newspapers that have made a policy decision to look for negative aspects of any new guideline in order to portray it as lenient or soft on crime.  The problem is compounded by the modern habit of reporting on sentences with an instant reaction to the adequacy of the sentence from the victim or the victim’s family.  Whilst this is perfectly understandable as a vivid piece of journalism, it has little value as an objective assessment of the adequacy of the sentence, and serves only to distort public consideration of sentences.”

15.   In addition, the press – and indeed sometimes Parliamentarians – may refer on occasion somewhat loosely to ‘sentencing guidelines’ when in fact they mean the statutory maximum sentence for an offence.  This contributes to misunderstanding of sentencing and of the role of guidelines. By way of a recent example, a judge sentencing a man for dangerous driving was reported by a regional online media outlet as saying that only sentencing guidelines prevented him from imposing a far more severe sentence.  The judge in fact had referred to the statutory maximum sentence as limiting his sentencing powers.  The report was corrected after the Sentencing Council’s Press Office pointed out the error in the way the judge’s remarks had been reported.

16.   It was also clear from the research that many respondents derived their views and understanding of the CJS from film or TV. Comparison with the American justice system – often arrived at via familiarity with American pop culture – were made in almost every group, with people generally of the opinion that the CJS in the US is tougher, and therefore in their view more effective than in the UK – although some felt it was also perhaps less fair.[3]

Q4 – To what extent does public understanding of sentencing affect public confidence in the criminal justice system? 

17.   The Council’s 2018 survey showed the public to be only slightly more likely to be confident than not confident in the effectiveness or fairness of the CJS: when asked how confident they were, 52% felt it was effective and 54% felt it was fair. Qualitative discussion groups similarly suggested that confidence in the effectiveness and fairness of the CJS was mixed. 

18.   A key drivers analysis, modelling the factors that most influence an individual’s confidence in the effectiveness of the CJS, similarly suggested that, overall, the factor that most influenced respondents’ confidence in the CJS was contact with or experience of the CJS that had improved their understanding of sentencing. Having contact with the police, having been involved in a criminal court case as a juror and having come into contact with the criminal courts per se also predicted a higher level of confidence in the effectiveness of the CJS. Other factors increasing confidence in effectiveness included having a degree or a higher level of education.

19.   Analysis also found an influence of experience with the CJS, and the associated improvement in understanding of sentencing from criminal offences, as being associated with increasing levels of confidence in the fairness of the CJS.

20.   The type of contact/ experience was found to have an impact on confidence. For example, those who had been involved in a criminal court case as a defendant were significantly less likely than those who had been involved with a criminal court case in other ways to say that they were confident in the effectiveness or fairness of the CJS. The survey results also indicated that victims of crime are particularly likely to say that they are not confident that the CJS is effective or fair. Qualitative interviews with victims of crime suggested that contact with the CJS was often confusing, driving negative perceptions of the justice system as a whole. Interviewees often reported that this was driven by poor communications from agencies within the justice system, who often failed to provide victims with adequate information or updates about the progress of the criminal investigation.

21.   It should also be noted that the research found that other factors also influence confidence in the CJS, including age, socioeconomic group, education level, ethnicity and the region in which they live.

Q5 – What could be done to improve public understanding of sentencing? 

22.   The Sentencing Council has a statutory duty to have regard to the need to promote public confidence in the criminal justice system when developing sentencing guidelines and monitoring their impact.[4] The Council has interpreted this duty more widely, and we have set ourselves a strategic objective to take direct steps to strengthen confidence in sentencing by improving public knowledge and understanding of sentencing, including among victims, witnesses and offenders, as well as the general public.

23.   The aim of the Council’s external communication activity is to improve people’s knowledge about, and understanding of, sentencing so that the public as a whole have confidence that the approach taken by the courts to sentencing offenders is fair and consistent.

24.   We do this for example via a programme of publicity via mainstream, specialist and trade media, both print and broadcast, aiming to inform the public about the sentencing guidelines and how they work to achieve consistency and fairness in sentencing. Also, we have a public-facing website designed to make sentencing accessible and transparent, and to counter common sentencing myths.

25.   One of the findings of the Council’s 2019 research was that, for most members of the public surveyed (76%), knowing that the sentencing guidelines exist improves their confidence of fairness of sentencing at least a little. The research also showed that having contact with the criminal courts and the police predicted a higher level of confidence in the effectiveness of the CJS. All these touchpoints provide opportunities to strengthen public education about the CJS, including public understanding of how sentencing works. The Council is working to realise these opportunities by providing information on sentencing that can be delivered at the public touchpoints throughout the CJS, for example via the police and Witness Service.

26.   Other findings from the 2019 public confidence research tell us that young people between school-leaving age and early 30s have greater confidence in the effectiveness and fairness of the criminal justice system than older people, and most say that hearing about the sentencing guidelines increases their levels of confidence. However, young people are less likely than any other age group to know about the guidelines. 

27.   To mitigate this lack of knowledge among the next generation of young adults, the Council has identified young people of secondary-school age as a priority audience. Our aim is to equip them with a knowledge and understanding of sentencing that will improve their confidence in the criminal justice system, whether they encounter it as victims, witnesses or defendants, and enable them to become critical readers of the media’s reporting of sentencing. We have done this in part by contributing to the key stage 1 and key stage 2 resources developed and disseminated by Young Citizens to primary and secondary schools throughout England and Wales. 

28.   The Council, in partnership with the Judicial Office, is also developing a new version of You be the Judge. This is an online tool designed to demystify the court process, demonstrate how judges and magistrates reach sentencing decisions and show how sentencing guidelines work to achieve a consistent approach to sentencing. It is a powerful public education tool designed to engage people of all ages. 

Q6 – What is public opinion on sentencing, and how can it be ascertained or measured? 

29.   When respondents in the 2019 follow-up survey were asked about their attitudes towards sentencing in general, seven in ten (70%) said that they think sentences are too lenient, while less than one in five (17%) said that they think they are about right, and only 4% said they are too tough. However, the qualitative group discussions, which included examination of specific sentencing case studies, suggested more mixed attitudes towards sentencing, with people less likely to say that sentences are too lenient overall.

30.   The 2019 online survey also looked at attitudes towards different offences. When asked whether they felt that sentences handed down for particular offences were too tough or too lenient, for most offences, the proportion saying that sentences were too lenient was significantly higher when asked in general, than when provided with a case study illustrating sentencing for a specific case. For example, when asked initially about sentences for rape, 76% of the general public said that sentences are too lenient. When provided with a specific case study, this dropped to 41%. For robbery, 63% said sentencing was generally too lenient, but only 26% said this when presented with a scenario. However, for assault offences and offences of downloading and viewing of indecent images of children, the findings were different: slightly more respondents in the survey felt that sentencing for assault was too lenient when presented with a scenario and there was no difference for indecent images when respondents considered a scenario compared to when they considered the offence more generally.

31.   Regarding ascertaining and measuring public opinion on sentencing, this can be undertaken via quantitative surveys or qualitative interviews and discussion/ focus groups. However, the exact methodology (including issues of sample size and representativeness, questions asked, mode of delivery - online versus face-to-face etc) will affect the findings. As a result, studies - some of which are cited in the Council’s publication - are often not directly comparable which makes measuring opinion over time difficult. 

32.   The timing of research can also impact on public opinion. At the time of the Council’s survey, there had been a large amount of negative media surrounding the case of John Worboys.  To test the influence of timing of fieldwork, we conducted a second, smaller and shorter survey, in 2019. Although this found that both confidence in effectiveness and fairness of the CJS had slipped further, there may have been other events that may have further undermined the public’s confidence in the system – for example, publicity around rising knife crime may have impacted on measures at the time the second survey was undertaken. 

33.   To provide a measure over time, the Council has undertaken further survey research on similar areas. A report on this is due to be published later in the summer. While this will provide some indication of changes over time in key measures of importance to the Council, it should, however, be noted that methodological changes (for example differences in the timing of the survey, changes to some questions and changes in some offences scenarios used) will impact on the overall comparability of findings.

Q7 – To what extent should public opinion inform sentencing policy and practice? 

34.   Parliament establishes the legislative framework within which sentencing takes place, including the maximum penalty which may be imposed for a particular type of offence.  In doing so, Parliament is able to take into account public opinion on general or individual matters.  When developing or revising sentencing guidelines, the Sentencing Council must of course work within that legislative framework, and it states the statutory maximum penalty at the start of every offence-specific guideline.

35.   An independent judiciary guards against public pressure having an inappropriate influence on sentencing in individual cases. It is the role of judges and magistrates to sentence objectively on the details of the case before them in accordance with the law and any relevant sentencing guidelines. Sentencers are required to take a nuanced and balanced view of the circumstances of the offence and the offender in arriving at a sentence. The nuances of the sentencing exercise are often lost in the reporting of the case in the press or on social media and, entirely understandably, victims and those closely involved with them will take a more subjective view. Sentencers are required to give reasons for the sentence and in the most serious cases judges are careful to set out as fully as possible how the sentence is arrived at.  

36.   Nevertheless, victims or their families may still feel dissatisfied with the sentence or confused by the technicalities of the process. For example, the disappointment with a sentence can stem from the fact that the offender was convicted of a lesser offence. Equally offenders and their families may feel the sentence is too harsh or disproportionate compared to other sentences they have heard about.  The Council has noted, and is supportive of, the recent introduction of the televising of selected sentencing remarks.  It is to be hoped that this innovation, alongside other initiatives such as our own public confidence objectives, will increase awareness amongst the general public of the sentencing process and how individual sentencing decisions are made.

37.   Turning to the work of Sentencing Council specifically, we consult widely before issuing any definitive guideline and all such consultations are public.  While we do receive some responses from members of the public these are relatively low numbers. It is sometimes the case that such responses relate more to general dissatisfaction with the underlying law or with police or prosecution practice than sentencing as such.  Sometimes such responses will take issue with the way the guidelines have been constructed: the placement or type of factors, the sentence ranges or starting points.  In developing guidelines the Council also seeks to engage with representative organisations and we do receive responses from groups representing victims, offenders or other interested parties, so they are not without influence.  The Council needs to weigh all such responses received alongside issues such as the need for sentences to be proportionate and appropriate to the full range of circumstances that may come before the courts.  The Council does consider all responses to consultations carefully and it has certainly been the case that even a lone response, if it makes a particularly cogent point, can cause the Council to reconsider an aspect of a draft guideline.    

September 2022