A new sentencing commission could make those responsible for policy more accountable

Lord Justice Gage’s report on sentencing will make interesting reading – not so much for what he says but more for the degree of restraint with which he says it. The appeal judge – whose report may well be out by the time you read this – has every right to be angry with the government about the way he was set up.

It all began with Lord Carter of Coles, called in a while ago to solve the problems of legal aid. Any lawyer still trying to keep a legal aid practice afloat at the moment will know how effectively the famed fixer dealt with that concern.

Undaunted, though, the government then asked Lord Carter to sort out overcrowding in prisons. Last December, he recommended a ‘structured sentencing framework and permanent sentencing commission’ to improve the ‘transparency, predictability and consistency’ of sentencing. This translates into a ‘grid’, listing categories of offence against degrees of seriousness. The more predictable the sentence in each case, the easier it should be to forecast the likely demand for prison places in future years – and to adjust sentences accordingly.

Roger Smith suggested here last month that moving to a grid system would enable us to replace the judges with handheld calculators. But his quip is not as far-fetched as it may seem: in Minnesota, where they have such a grid, judges may be appointed without experience of criminal trials – though that may be less of a worry when you realise that 95% of sentences there are agreed in advance through a plea bargain between prosecution and defence.

It must have been with some misgivings that Lord Justice Gage agreed to head a working group that would examine the ‘advantages, disadvantages and feasibility’ of Lord Carter’s proposals. Established in January, it published a consultation paper at the end of March and has promised to deliver its final report this month.

Reaction to the consultation paper has been uniformly hostile. Not a single respondent favoured the Carter grid. As the Council of Circuit Judges concluded, ‘the American dream would result in a nightmare in England and Wales’.

Even the Gage consultation paper acknowledged that the ‘specific design of the USA sentencing grids, particularly the way that account is taken of previous criminal history, is overly formulaic and mechanistic to an extent that is inimical to our tradition of judicial discretion’.

Professor Michael Zander QC, who was given privileged access to the responses, concluded that ‘the Gage working group has wasted its own time and that of a lot of other people in pursuing the misconceived project developed by Lord Carter’.

Lord Justice Gage cannot possibly recommend anything remotely resembling the Minnesota grid. And Jack Straw, the Lord Chancellor, would become something of a laughing stock if he persisted with Lord Carter’s recommendations – even though the two men are old friends.

This is because the proposals have been utterly demolished by the judiciary at every level. A paper written by a group of High Court judges and endorsed by judges from the Court of Appeal is particularly scathing. For one thing, the senior judges say, a grid is likely to drive up the prison population; for another, it will not make it any easier to predict the demand for prison places. But the judges’ main objection is one of principle: taking away the sentencer’s discretion makes it harder to do justice in an individual case.

Of course, the Gage working group was never intending to import the Minnesota grid wholesale. It was to be ‘substantially modified’, the consultation paper said, allowing courts much greater discretion. But it still envisaged using an offender’s previous convictions as the starting point for calculating his sentence. In explaining how this would be unfair to most offenders, the judges offer us some revealing insights into sentencing practice. For example, they say, previous convictions should carry little weight in offences such as breach of trust and drug smuggling – if only because convicted criminals are rarely entrusted with large sums of money and because drug importers always target carriers with clean records.

There really are occasions ­where a reformed criminal should not receive an increased sentence for an isolated lapse. And a previous manslaughter conviction for the mercy killing of a spouse should not necessarily increase the sentence for a drunken assault in a pub. Indeed, say the judges, ‘it may explain it and lead to a reduction in sentence’.

All this must have been obvious to a member of the Court of Appeal. Lord Justice Gage should never have been asked to consider anything as inappropriate for England as the Minnesota grid.

But it should still be possible to salvage something from the wreckage. A report published this week by the Prison Reform Trust recommends building on the existing Sentencing Guidelines Council and advisory panel. We could even call it a sentencing commission if that would make the Lord Chancellor feel better about it. Such a commission would still provide guidance for sentencers. In addition, though, it would monitor compliance and correct public misconceptions. Currently, the only country with a commission that fulfils all three functions is New Zealand.

As envisaged by the Prison Reform Trust, a sentencing commission for England and Wales would reduce the politicisation of sentencing ‘by acting as a constitutional buffer between the political process and penal practice’. As conceived by the shadow justice secretary, Nick Herbert, at a seminar last month organised by the think-tank Reform, it could make those responsible for sentencing policy more accountable to Parliament than at present – perhaps through a select committee.There is clearly scope for discussion about how much political oversight of sentencing there should be and whether guidelines should be presumptive or advisory. But the principles are clear.

Making prison numbers more predictable should not be the design brief for a sentencing commission. Doing justice must come first.