Written Evidence from Dr Rory Kelly, UCL Faculty of Laws (OUS0024)

This response addresses one question in the Justice Committee’s Terms of Reference: “What are the barriers to improving public awareness of how sentencing works?” It focuses on one possible barrier: the language used to describe sentences. An offender will not serve five years in prison when sentenced to five years’ imprisonment. Suspended sentences are not suspended. The victim does not receive the victim surcharge. The language in sentencing matters and the terms used to describe key sanctions risk misleading offenders, victims and the wider public. It is thus important that further research is done to determine the extent of public understanding of key sentencing terms and, if necessary, to develop alternatives.

This response first describes why the language used in sentencing matters before addressing three example sanctions and the issues to which their names give rise before noting possible next steps.

Why does the language used in sentencing matter?

A sentence has important consequences for the recipient. First, the sentence will be a sanction that impacts the offender’s life be it a financial penalty, restrictions in the community, or imprisonment. Secondly, the sentence also conveys blame. The tougher the sanction, the more blame that is expressed.[1] In other words, a sentence of five years’ imprisonment tends to express greater censure than a sentence of two years or a community order. Given these consequences, it is imperative that the defendant understands the possible sentences at stake and that the offender understands the sentence imposed on them. If the language used in sentencing does not convey what a sentence entails or, worse still, misrepresents the sentence, it may become a barrier to offender understanding. The difficulty extends beyond the offender. How are the wider public or the victim to know what a sentence entails and how much blame it is meant to express, if the name of the sentence does not convey its consequences or misleads on those consequences?

The victim surcharge

Where an offence is committed after 1 April 2007 the Court must order the offender to pay a surcharge unless an exception applies.[2] The surcharge is set by the Secretary of State through regulation.[3] The amount payable is based on the date of offence and the type of sentence imposed. The 2022 figures for a fine is 40% of the fine with a cap of £2,000; for a suspended sentence of more than six months is £187 and for imprisonment of over two years is £228.[4]

The term ‘victim surcharge’ has been used in parliamentary debate;[5] government circulars;[6] and the Court of Appeal.[7] The terms ‘statutory surcharge’ and ‘the surcharge’ have also been used. Though there is some inconsistency, the term ‘victim surcharge’ has sufficient usage to cause confusion. In fact, this inconsistency of terminology amongst informed actors itself speaks to the need to reconsider the name of the sanction.

The purpose of the victim surcharge, according to a recent government circular, is to ‘ensure that offenders hold some responsibility towards the cost of supporting victims and witnesses.’[8] Money raised via the surcharge is used to fund local and national support services. It is not paid directly to the victim of the relevant offence (if there is one). Here in lies the issue. The sanction is a charge, beyond proportionate punishment, that the offender must pay, which goes to support wider victim services. Many offences to which the surcharge applies do not have direct victims such as driving offences. And where the offence does have a clear victim, they do not receive the surcharge. The payer is the offender. The recipient is victim services. The victim is not a direct party to the surcharge. The name is not only unsatisfactory due to being misleading; it also risks confusing the victim surcharge with compensation orders, which are payable to the victim.[9] Further the terminology may risk fuelling victim dissatisfaction (or dissatisfaction on their behalf) when the victim does not receive the surcharge.

The suspended sentence

The suspended sentence is a sentence of imprisonment, but it does not result in immediate custody.[10] It is available when the custody threshold is passed, and the court imposes sentence of between 14 days and two years.[11] As part of the sentence, the court may impose a range of requirements to include unpaid work, exclusion requirements, foreign travel prohibitions, rehabilitation, and electronic monitoring.[12] If the offender is convicted of a further offence whilst serving a suspended sentence or they breach a requirement of the sentence, they may have their suspended sentence activated in full or in part.[13]

The term ‘suspended sentence’ indicates that the recipient has not been made subject to a sentence at all but gets to ‘walk free’. This is clearly not the case. Recipients of a suspended sentence can be made subject to the above requirements which have immediate effect. They are also subject to a heightened risk of imprisonment due to breach of a requirement or committing a further offence. These are thus significant immediate and possible effects on the offender. It is imprisonment that is suspended not the sentence.

Five-years’ imprisonment

Where a person is sentenced to five-years’ imprisonment, they will not spend five years in prison. Their time will be split between prison and on licence in the community. The general split at present is half the time in custody and half in the community.[14] This means that, at present, the term ‘five years in the community’ is as accurate as ‘five years’ imprisonment’. The present terminology inflates the severity of determinate sentences. A key risk here is that the terminology may lead to problematic headlines about offenders being released early or only serving half of their sentence. This is rife to mislead the public and risks triggering punitive reforms.

In addition, the standard term of five years risks misleading on some variation in release points between sentences. The release point for certain terrorist, sexual and violent offenders has been moved to two-thirds of the sentence [15] Take a sentence of 10 years. One person serving this sentence may be in prison for six years eight months and another, with an earlier release point, for five years. This significant difference in severity is hidden by the general term 10 years’ imprisonment.

Next steps

Sentencing is the imposition of censure and hard treatment by the state. It is vital that offenders, victims, and the wider public understand the core sentences that may be imposed in England and Wales. The language used should not mislead. Given that numerous terms in sentencing are not intuitive, empirical research is needed to provide a fuller picture of the extent to which the public understand core terms. I will undertake such research with the Sentencing Academy, ‘a research and engagement charitable incorporated organisation dedicated to developing expert and public understanding of sentencing in England and Wales’.[16] We are happy to report the findings of this research and any proposals which come from it to the Committee.

January 2023