Written evidence submitted by the Ministry of Justice (OUS0021)

SECTION 1: OPEN JUSTICE AND TRANSPARENCY

1. The Government is committed to the principle of open justice; ’justice must not only be done but must be seen to be done’. This principle is underpinned by the common law and Article 6 of the European Convention on Human Rights, which enshrines that court and tribunal hearings should normally be held in public. This accessibility and transparency builds understanding and confidence in our justice system and the rule of law.

Access to court hearings

2. The principle of open justice is achieved, in part, by access to our courts and tribunals by the media and public. Access has, traditionally, been serviced by the provision of a physical public gallery in our courtrooms, and access by the media to the well of the courtroom as appropriate. Through the Police, Crime, Sentencing and Courts Act 2022 we have also allowed for remote observation of our court and tribunal hearings using audio and video technology. Remote access is subject to judicial discretion. This builds and expands on the temporary and emergency powers in the Coronavirus Act 2020, which helped ensure open justice was maintained during the pandemic when access to physical courtrooms was limited.
3. Access to court hearings allows the public to see our independent judiciary pass sentences on adults who have been convicted of an offence. Such access is especially important for the victims of crime, and those associated with the particular case, including friends and family. Access also supports the media in their vital role of reporting on the work of our courts and tribunals. It is through such contemporaneous reporting that many people hear about the operation of the justice system and on which their opinions of the justice system are based.

Publication of judgments and sentencing remarks

4. The publication of judgements and the accessibility of sentencing remarks are also key components of the principle of open justice, helping to build understanding and confidence in sentencing.
5. The Sentencing Act 2020 provides a duty on the courts to explain how they have determined the sentence and what the sentence means for the offender. Case law has also emphasised that the key to the nature of sentencing remarks is the use of the terms ‘in ordinary language’ and the Crown Court Compendium (which provides guidance to judges) was updated by Judicial College in 2019 to reflect this.
6. Proceedings in the Crown Court are recorded in audio form and on request, a written transcript can be provided for a fee (bereaved families of murder victims are entitled to a transcript without cost). The National Probation Service provides victims with a transcript in cases where release is determined by the Parole Board. In some high-profile cases, sentencing remarks are published on the judiciary.uk website at the discretion of the sentencing judge. In 2022 so far, 14 cases have been published.[1] The right for all victims to be given information about the outcome of the case and any appeals is provided for in Right 9 of the Victims Code of Practice, including the right to be provided with an explanation about the meaning and effect of the sentence, by the Witness Care Unit.
7. In April 2022, the Government launched the first official record of judgments, called Find Case Law[2]. This new service was delivered in collaboration between the Ministry of Justice and the National Archives.  It provides free access to judgments significant to case law (judgments from Courts of Record and Upper Tribunals) and of public interest in England and Wales from 2003 onwards. Subject to a successful application, users can also re-use the data for further analysis and processing under a free Open Justice License.
8. Prior to this, a charity called The British and Irish Legal Information Institute (BAILII) was contracted to publish Court and Tribunal judgments on behalf of the Lord Chancellor. BAILII provided a valuable service and will continue to receive and publish future judgments from Case Law under licence.
9. Since launch of Find Case Law, The National Archives has been gathering user feedback to develop the service further and move towards Beta stage of development. The scope of coverage will also grow over time as The National Archives actively migrates and acquires legacy judgment and tribunal decisions. Judgments held on government websites will be relocated to widen the coverage of the service as far as possible.
10. Our policy ambition is to continue to develop this service further and work towards provision of a full record in future and we will consider inclusion of sentencing remarks as part of this.

Court Broadcasting

11. In order to further support the principles of open justice and improve the public’s awareness of sentencing the MoJ introduced The Crown Court (Recording and Broadcasting) Order 2020, which allows for the broadcasting of sentencing remarks in the Crown Court.
12. MoJ is working with Her Majesty’s Courts and Tribunals Service, the judiciary and media parties to implement the legislation. Allowing TV cameras into these courtrooms will help the public to see justice being delivered, improve their understanding of our justice system, and build confidence in the rule of law.

Open Parole Board Hearings

13. Improving public understanding and confidence in sentencing is not just about what happens in the court room. There are other stages of the sentencing process, such as parole hearings and the delivery of community sentences, which also play an important role.
14. In recent years the Government has taken steps to improve the transparency of the parole process in England and Wales so the way it operates and the reasons for parole decisions can be better understood. In 2018 we introduced the ability for the Parole Board to issue decision summaries on request. Before this change the Board were prohibited from sharing the reasons behind their decisions so victims and the wider public could only speculate why a prisoner had been released. Since being introduced, thousands of summaries have been produced and the overwhelming majority have been requested by victims. They also help to inform media reporting of high-profile cases.
15. More recently, in 2019 the Government made a commitment in its manifesto to enable victims to attend parole hearings and in 2021 we announced our intention to enable some parole hearings to be heard in public for the first time.  The Government’s Root and Branch Review of the Parole System, published on 30 March 2022, set out how these changes will operate in practice. The amendments to the Parole Board Rules to allow public hearings come into force on 21 July 2022 and the victims will be able to attend hearings as observers in the autumn as part of a limited testing exercise before it is rolled out across England and Wales next year.
16. The Parole Board consider whether it is safe to release prisoners on licence who have committed the most serious violent and sexual offences. The cumulative effect of the changes the Government has made is that this vital part of our justice system is more open and transparent than ever before.

Community Payback

17. Visibility of community sentences contributes to the principle of open justice and allows the public to see sentences being carried out. ‘Community Payback’ (work completed within an Unpaid Work Requirement as part of a community order or suspended sentence order) is a visible punishment that shows justice being done and offenders making reparation to the communities they have harmed. Work placements vary but can include activities such as litter picking and graffiti removal. In March 2022, offenders completed more than 10,000 hours in nationwide clean-ups to support Keep Britain Tidy’s annual campaign, “The Great British Clean”.
18. The Government is investing an additional £93 million in Community Payback over the next three years which will see a particular focus on delivering more robust community-based projects that improve local areas and environmental outcomes and allow the public to see justice being done. We are also establishing new national partnerships between the Probation Service and major organisations and charities, allowing high quality local projects and initiatives to be replicated in communities across England and Wales. This includes a national partnership with the Canal & River Trust, which sees offenders clearing litter, tidying tow paths and maintaining beauty spots along 2,000 miles of waterways.
19. The Police, Crime, Sentencing and Courts Act 2022 created a new statutory duty on Regional Probation Directors to consult annually with key local and regional stakeholders on the delivery of Community Payback. The aim is to improve links between community stakeholders and the Probation Service, helping to better identify local projects suitable for placements and target specific cohorts of priority offenders. In addition to this, HMPPS are producing guidance for PCCs on how probation and police can work together on community payback delivery, including canvassing views from local communities on placements they would like to see in their areas. The Probation Service welcomes nominations for Community Payback projects from members of the public that they feel will benefit their community. Nominations can be made via a link on the gov.uk website[3].

SECTION 2: HOW PUBLIC OPINION INFORMS SENTENCING POLICY AND PRACTICE

Sentencing policy

20. The Ministry of Justice is responsible for policy and legislative proposals on sentencing in England and Wales. There are a number of mechanisms by which our Ministers use the views of victims, stakeholders and the wider public to help them make decisions and develop sentencing policy.
21. Manifesto commitments made by an elected Government give a clear mandate for enacting policies supported by the public. The 2019 Conservative Manifesto contained a number of sentencing commitments which went on to form the basis of the White Paper, A Smarter Approach to Sentencing and subsequently the sentencing provisions in the Police, Crime, Sentencing and Courts Act 2022. These commitments covered both adult and youth sentencing and centred on tougher sentencing for the worst offenders and ending automatic release from prison for serious crimes, but also tougher and more effective community sentences which break the cycle of offending.
22. The views of MPs, representing their constituents, are considered by the MoJ on a range of subjects, including sentencing. This information forms part of the advice that is given to Ministers to enable them to make decisions on sentencing policy. On sentencing, there is widespread feeling among MPs that we must be tougher on criminals and therefore that sentences must be more stringent. MPs from all parties are in agreement that sentences and prosecution for rape and serious sexual offences should be a key focus for this government. There are often calls from MPs on all sides to increase sentences in response to specific cases and issues. For example, during the passage of the Police, Crime, Sentencing and Courts Act 2022 there was cross-party pressure to take action on assaults against retail workers, in response to public concern on this issue during the pandemic.  In response the Government brought forward an amendment to the Act which introduced a statutory aggravating factor for assault committed against those providing a public service.
23. Victim-focused campaigns can lead to legislative changes to the sentencing framework. Recent examples include Helen’s Law[4], Harper’s Law[5] and Tony’s Law[6]. In each of these examples, the government has responded to a campaign lead by the family of a victim which has highlighted an issue with the way the sentencing framework operates in practice. 
24. Consultations can be conducted by the government in the development of policy and legislation. For example, the 2021 consultation on Delivering Justice for Victims[7]. Government responses to consultations are published[8] and explain the responses that have been received from consultees and how these have been taken into account in the development of the policy.
25. An e-petition on parliament.uk can be started by any British citizen or UK resident. The Petitions Committee reviews all petitions and has the power to press for action from government or Parliament. The government must provide a written response to petitions that receive at least 10,000 signatures. If a petition receives 100,000 signatures it will be considered for debate in parliament. Examples of recent petitions on sentencing policy include ‘Increase sentences for one punch assaults that kill to equal those for murder’ which received a Government response[9] and ‘’Tougher sentences for hit and run drivers who cause death’ which was debated in parliament[10].

Sentencing practice

26. Sentencing in individual cases is entirely a matter for our independent courts, taking into account the circumstances of the offence and the offender and following the guidelines issued by the independent Sentencing Council. There are however some mechanisms by which the public can be involved in the sentencing process of individual cases.
27. A Victim Personal Statement is given by victims of crime and explains the effects the offending has had on them and their family. The statement is compiled and owned by the police. The right for all victims to make a statement is provided for in Right 7 of the Victims’ Code of Practice[11]
28. The Victim Personal Statement (VPS) will form part of the package which the sentencing court has before it. When assessing the nature and seriousness of the offender’s actions, courts will take into account the physical, emotional and financial harm caused to a victim or his or her family. The VPS can help refine the court’s assessment of this harm and this may impact on the severity of the sentence passed. The Statement can also be used at tariff reviews and parole hearings, at which it helps the panel decide appropriate licence conditions, if the offender is to be released. Research indicates that when Victim Personal Statements are used, they have a positive impact on the victims’ experience of the criminal justice process.
29. A Community Impact Statement illustrates the concerns and priorities of a specific community over a set time period and draws the attention of the sentencing court to the impact of the offending on the community. The use of Community Impact Statements is recognised and governed by the Criminal Practice Direction (CPD) VII: Sentencing – section H[12] , which state that the court must take into account, so far as t it considers appropriate, the impact on the local community. Case law also emphasises that where a Community Impact Statement demonstrates a level of harm which clearly exceeds the well understood consequences of the offence by a significant margin, the court should reflect this in the sentencing outcome.
30. Community Impact Statements have been used recently in hearings related to members of Extinction Rebellion, describing the impact on the transport system etc. They have also been used in central London for theft from person cases, outlining the prevalence of such offences in central London and their impact. 
31. The Unduly Lenient Sentence scheme enables the Attorney General to refer sentences to the Court of Appeal to consider whether they are too lenient and should be increased. The scheme applies to certain serious offences sentenced in the Crown Court and is designed to ensure there is a route for victims, victims’ families and the public to seek to ask the Court of Appeal to reconsider a sentence they think is unreasonably low. Anyone can ask the Attorney General to consider referring one of these sentences for review. Whilst only a significant minority of sentences considered by a Law Officer are referred to the Court of Appeal, where the Court of Appeal deems that a sentence was indeed unduly lenient they have the power to increase it, and do so in the majority of cases referred.
32. This government has extended this scheme to include a wider range of offences. Most recently, in November 2019, we expanded the scheme to include 14 new offences including further child sexual offences – such as those involving indecent images of children and abusing a position of trust with a child – stalking, harassment and coercive or controlling behaviour.
33. The new Victims’ Code includes details of the ULS scheme, making it clear to victims their right to appeal and under what circumstances Law Officers may refer cases to the Court of Appeal.

SECTION 3: HOW INFORMATION ON SENTENCING IS PROVIDED TO THE PUBLIC

34. The MoJ recognises the importance of ensuring that the public is properly informed about sentencing and ensures that the public has access to a range of information which enables this.

Data releases

35. The MoJ publishes a variety of research and statistics in relation to youth and adult sentencing. Details on published materials, upcoming releases and any cancellations can be readily accessed by the public on Gov.uk[13] This includes statistical releases relating to overall sentencing statistics, knife and offensive weapon sentencing, first time entrants and offender histories. These publications have been awarded National Statistics status which means that official statistics meet the highest standards of trustworthiness, quality and public value. All official statistics should comply with all aspects of the Code of Practice for Statistics regulated by the Office for Statistics Regulation.
36. Criminal justice statistics are published on a quarterly basis. The publication covers trends in the use of out of court disposals, defendants prosecuted, offenders convicted, remand and sentencing decisions in England and Wales. Specifically, statistics are produced on the number of offenders sentenced to each sentence type by magistrates’ courts and the Crown Court, with details such as average fine amount and average custodial sentence length. The annual release includes 8 tools to allow users to break down the statistics further such as by offender characteristics and offence type. The publication has an accompanying technical guide which provides more detail on criminal justice statistics presented in the publication and is intended to be used as a guide to concepts and definitions.
37. The Women and Criminal Justice System report compiles statistics across the criminal justice system to provide a combined perspective on the typical experiences of males and females and the Ethnicity and the Criminal Justice System report provides a combined perspective on the typical experiences of different ethnic groups. These publications are updated on a bi-annual basis, with the Women’s report last updated in 2019[14] and the Ethnicity report in 2020[15]. The Annual Youth Justice Statistics publication similarly provides an overview of trends in the youth justice system, including sentencing.[16]
38. Knife and offensive weapon sentencing statistics are published on a quarterly basis. This series contains key statistics describing trends in cautioning and sentencing for offences involving the possession of a knife or offensive weapon in England and Wales. The main landing page can be accessed publicly on Gov.uk[17].
39. First time entrant statistics are published on a quarterly basis. The data present an overview of trends in First Time Entrants (FTE) into the Criminal Justice System in England and Wales. The release contains very high-level information on disposals for first time entrants. Offender histories are published annually. These can be found publicly on Gov.uk[18].
40. Research is also published by the MoJ, exploring in-depth various aspects of the criminal justice system. We conduct social research, cost benefit analyses, impact assessments, forecasting and data visualisation. As an example, in 2018 we explored whether offender characteristics affect the impact of short custodial sentences and court orders on reoffending[19] and in 2019 we published a research paper on the impact of short custodial sentences, community orders and suspended sentence orders on reoffending[20]. Details of our research projects are published on the ‘Research at MoJ’ section of the gov.uk website[21].

Other Government-provided information

41. In addition to our data release, there is a number of other ways in which the MoJ provides publicly available information on sentencing.
42. Gov.uk provides general information on sentencing in a way that is as easy as possible to understand[22]. There are pages on going to court, paying fines, appealing a sentence, jury service, tribunals, victim support, being charged with a crime, cautions, community sentences and prison sentences.
43. Press releases[23] are issued by the MoJ on all departmental updates relating to sentencing, along with updates via our social media channels on Twitter, Instagram, Facebook and LinkedIn. Social media content might include a digital asset such as an infographic, slideshows, single image, video, or animation. Where possible we aim to include a suggested action for audiences – for example, to watch a video or click on the link to a press notice to learn more. These contain photography, illustrations, moving image or text designed to help audiences easily and quickly understand details of both sentencing in practice and of potential proposals. Content follows best practice for accessibility with consistent use of caption subtitles, voiceovers, and alt-text. Strategically, a key method that is regularly employed to engage audiences and show the impact of sentencing is partnering with authentic and relatable case studies and stakeholders (‘human-led’ storytelling). Each post is tailored for the relevant audience which varies between channels, where some channels require more detail like LinkedIn, others like Twitter need to be condensed. Social media content is also regularly re-published to build awareness amongst followers over time. . Additionally, MoJ digital consistently innovates content formats for new features released by channels in order expand reach and engagement (e.g. Instagram Reels) and growing new channels (e.g. YouTube).
44. Explanatory Notes accompany all new sentencing legislation and are published on the relevant Bill page[24]. Explanatory Notes explain the change in the law that each part of the Bill would produce and make legislation accessible to readers who may not be legally qualified or have specialised knowledge of the subject area. They can help members of the public to understand the law as it applies to them by putting a bill into context, explaining what is not apparent from the provisions of the bill itself, preventing misconceptions and giving examples of how the bill will operate in practice.
45. ‘You be the Judge’ was an interactive, online tool which helped educate the public about the sentencing process. The tool allowed members of the public to take the role of a judge, hear facts of the case, and sentence in accordance with the sentencing guidelines. This tool was initiated by the Ministry of Justice but now comes under the Sentencing Council who are currently considering launching a revised version.
46. The MoJ also responds to the public’s sentencing queries and concerns through correspondence – whether that is directly to the department or through Members of Parliament. Between June 2021 and June 2022, the MoJ Policy function responded to approximately 520 letters and emails from the public relating to sentencing. 

The Sentencing Council

47. The independent Sentencing Council and Judicial Office also play crucial roles in the public's understanding of and confidence in the criminal justice system, including sentencing.
48. The Sentencing Council is an independent non-departmental public body sponsored by the Ministry of Justice (MoJ) and is providing their own evidence for this inquiry.
49. The Sentencing Council has a statutory duty to have regard to the need to promote public confidence in the criminal justice system when developing the sentencing guidelines and monitoring their impact. In The Sentencing Council: Reflections on its 10th Anniversary[25], the Council recognised that they have interpreted this duty more widely as an obligation to take direct steps to promote public confidence in the criminal justice system and sentencing in particular. The MoJ’s Tailored Review of the Sentencing Council of England and Wales [26] published in February 2019 found that the Council and its functions play a vital role in helping to raise awareness amongst the public on sentencing issues and recommended that the Council should continue to do so.
50. In January 2018 the Council commissioned a research consultancy to conduct a programme of research into Public knowledge of and confidence in the criminal justice system and sentencing[27].

Judicial Office

51. The Judicial Office reports to the Lord Chief Justice and Senior President of Tribunals. Its purpose is to support the judiciary in upholding the rule of law in in delivering justice, impartially, speedily and efficiently. The Judicial Office supports Judges and Magistrates to reach out to communities, schools and universities to increase public understanding of the role of the judge and the justice system.
52. In the twelve months to April 2022, the 122 Diversity and Community Relations Judges reached just over 8,000 school children, college and University students which played an important role in enhancing understanding of the justice system and encouraging future lawyers and judges. 
53. A cohort of Diversity and Community Relations Magistrates (DCRMs) who act as a conduit between the magistracy and members of the public also contribute to raising awareness about their roles and the justice system.

September 2022