The press vilified Lord Woolf as ‘the burglar’s friend’ over his attempts to reform sentencing policy. Philip Hoult finds that moves to improve consistency and transparency have been praised
When the Lord Chief Justice, Lord Woolf, retires at the end of September, there is one aspect of the job that he will probably not miss after handing over to Lord Phillips – his bruising encounters with the press over sentencing.
Dubbed ‘the burglar’s friend’ by the Daily Mail, Lord Woolf has been portrayed as an example of how judges are soft on offenders and out of touch with public opinion.
A speech he gave last month to the Institute of Criminology at Cambridge University – in which he called for a moratorium on new criminal offences unless they are absolutely necessary – is unlikely to have made his stock rise in Fleet Street either.
Pointing out that the prison population had grown from 42,000 only 14 years ago to some 76,000 and rising, Lord Woolf argued that steps should be taken to halt the overcrowding in our jails and to cut re-offending.
‘We need to make greater sense of sentencing,’ he said, ‘so that it achieves all the things which it is designed to do: that it punishes the offenders and protects the public; that it reduces and deters crime; that it makes offenders make reparations to those affected by their crimes; and that it reforms and rehabilitates offenders.’
The Lord Chief Justice’s ‘recipe’ to achieve this goal includes developing a consensus on the resources that should be made available to the criminal justice system and the best use of those resources, confining prison to the most serious offences, and making community punishments ‘really meaningful’ (see below).
He also called for the gap to be bridged between public perceptions of lenient sentencing and the much tougher punishments that are actually imposed.
Such views do not go down too well with certain sections of the media, however. Writing on the same day in the Daily Mail, high-profile columnist Melanie Phillips claimed that Britain’s criminal justice system ‘is mired in a combination of bureaucratic inertia, political pusillanimity and ideological perversity.
‘Citizens run the gauntlet of a crime wave dismissed as an exaggeration by an out-of-touch establishment that regards calls for imprisonment as evidence of unsophistication. Accordingly, it delivers a sentencing policy that enables criminals to thumb their noses at the system, and increasingly makes a mockery of justice itself.’
The mudslinging, though predictable, nevertheless overshadows a number of significant changes that have taken place in the sentencing field in the last two years.
Three key developments stand out: the new provisions on sentencing contained in the Criminal Justice Act 2003; recommendations from the independent Sentencing Guidelines Council set up under the 2003 Act; and the recent Court of Appeal decision in R v Goodyear [2005] EWCA Crim 888, which allows judges to give a defendant an advance indication of the likely sentence on a guilty plea, for the first time in more than 30 years.
Andrew Keogh, partner at leading criminal law specialist firm Tuckers and founder of on-line information service CrimeLine, predicts that the end result will be greater consistency and transparency in sentencing. ‘That will be a massive benefit for everybody, and particularly for lawyers advising their clients,’ he says.
The 2003 Act was – just like Lord Woolf’s speech – trumpeted as putting ‘sense into sentencing’, and its provisions included enshrining the purposes and principles of sentencing into statute for the first time.
A new sentencing framework also set out generic community sentences, allowing those handing down sentences a greater degree of flexibility, as well as new forms of custodial sentences. The latter included the controversial ‘imprisonment for public protection’, which a judge must impose on a sexual or violent offender if the court assesses that there is a significant risk to the public.
Arguably, the most important initiative to come out of the 2003 Act, however, was the Sentencing Guidelines Council.
Chaired by the Lord Chief Justice, it was launched in September 2004 by the then Home Secretary David Blunkett, with the specific task of addressing uncertainty and disparities in sentencing.
In a move billed as a radical break from existing practice, its members were drawn from the police, probation and prison services, and the victims of crime – represented by the head of policy at Victim Support – as well as senior judges, the Director of Public Prosecutions, Ken Macdonald QC, and the legal profession. This broad membership, Mr Blunkett said, meant the council would ‘command the respect of the judiciary and the wider public’.
It got off to a difficult start, however – not least when both the home affairs select committee and the home secretary tore into the first draft guidelines it put out on reductions in sentence for a guilty plea.
These had initially suggested that murderers, along with other offenders, could receive a one-third discount off their sentence for an early guilty plea.
Both the MPs and Mr Blunkett insisted that murderers should be treated differently to reflect the nature of their crime. Two months after the furore, the council issued revised guidelines stating that murderers would in fact only get one-sixth off their sentence, up to a maximum of five years.
Having learned from this experience, the council – and the Sentencing Advisory Panel that submits advice and recommendations to it – has started to crank up its output.
Guidelines on assessing the seriousness of a crime and the new sentencing framework introduced under the 2003 Act have already been published, while draft guidance on manslaughter by reason of provocation was unveiled last month.
The council is in the process of identifying its priorities but the ultimate goal is to produce guidelines for all offences.
Leading criminal law solicitor Tony Edwards, a defence expert appointed to the council, says the government had unrealistic expectations of the speed at which the council would operate.
But Mr Edwards, senior partner of east London firm TV Edwards, is in no doubt about the council’s potential impact, and the practical benefits for lawyers.
‘Not only do the guidelines give the range of sentencing but also the aggravating factors which we, as mitigators, need to talk down and those factors which we need to talk up,’ he says. ‘There should be a far higher quality of mitigation as a result.’
According to Mr Keogh, the impact of the first sets of guidelines is already being felt. ‘Even in the last six months, after the council came out with guidance on pleas, it is becoming much clearer to advise on,’ he suggests.
Helen Cousins, chairwoman of the Criminal Law Solicitors Association and a partner in Leeds firm Cousins Tyrer, agrees that the guidelines are a significant step forward, but warns that for the council’s credibility to be maintained, politicians need to refrain from making unfounded attacks.
‘This is somewhere the government needs to take its nose out of,’ she says. ‘If [the council] comes out with something and the government does not like it, then hard luck.’
A further aspect of the council’s work that has received praise – from prosecution and defence lawyers alike – is its recently published compendium of sentencing guidelines and guidance cases.
In the past, the courts had often found it hard to access all the relevant guidance, which was principally contained in Court of Appeal judgments, but it can now be downloaded from the council’s Web site. Importantly, it is a resource that is also available for prosecution and defence lawyers.
‘The compendium is superb, there’s no doubt about it,’ says Kris Venkatasami, convenor of prosecutors’ union, the First Division Association. ‘For the practitioner, it’s extremely helpful.’
The third change that is expected to have a major impact in the sentencing arena is the Court of Appeal decision in Goodyear, which was delivered in April.
In a rare five-judge decision that signified the importance attached to the ruling, the court overturned R v Turner [1970] 2 QB 321, which prohibited the judge from giving any indication of a likely sentence in advance of a guilty plea by the defendant, on the basis that it might constitute undue pressure. Until now, a defendant would turn to counsel for advice on what might happen should he plead guilty.
‘We cannot, and do not seek to, water down the essential principle that the defendant’s plea must always be made voluntarily and free from any improper pressure,’ the appeal court explained. ‘On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which would be imposed on the defendant.
‘In effect, this simply substitutes the defendant’s legitimate reliance on counsel’s assessment of the likely sentence with the more accurate indication provided by the judge himself.’
The court went on to set out clear guidelines on the roles of the judge, defence and prosecution should a defendant wish to obtain such an advance indication. For example, a defence advocate must obtain his client’s written authority before making the request to the judge. The prosecution and the defence will have to agree on the plea and the facts of the case, and put these down in writing. The hearing will also take place in open court.
As the appeal court was at pains to point out, however, the decision does not amount to the introduction of US-style plea bargaining – ‘a judge is not to be asked to indicate levels of sentence which he may have in mind depending on possible different pleas’, it insisted.
According to Professor Michael Zander, professor of law at the London School of Economics, the impact of Goodyear will nevertheless be ‘quite considerable’, with an expected increase in the number of early guilty pleas and a reduction in trials that ‘crack’ at the last minute. It will also help lawyers advise their clients, he adds.
‘Some judges ignored Turner and said “come and have a chat in chambers”, while others would not,’ he says. ‘This put the profession in difficulty. The attraction of Goodyear, from the defendant’s point of view, is that he knows where he stands.’
Defence lawyers have welcomed the consistency and transparency in approach the ruling should bring, although they also warn that it may be difficult to operate in practice.
‘The old rule was honoured more in the breach than the observance,’ explains Ms Cousins. ‘I am pleased with anything that clarifies and codifies the position, but there will be problems with putting everything down in writing – the statement of agreed facts would have to be very carefully drafted.’
Mr Edwards agrees that the judgment will help, but cautions that defence lawyers will need to show ‘a very high level of professionalism’ in their approach to the new procedure.
He adds: ‘The risks are still big that people will admit things they have not done out of fear of something worse – it is a very real pressure.’
Prosecutors have also reacted positively to the judgment. ‘The vast majority, if not all prosecutors, welcome Goodyear while recognising it is not without its challenges,’ says Penny Palmer, Law Society Council member for the Crown Prosecution Service (CPS) and a prosecutor in Gwent. ‘It is in the spirit of other criminal justice system initiatives on sentencing – such as effective trial management, and victim and witness issues – where the CPS has led the debate rather than reacted to it.’
It is early days, but the signs are that Goodyear, and the various other developments that have taken place in sentencing, will have a positive and significant impact, at least as far as practitioners are concerned.
Whether they will in turn help boost public confidence in the criminal justice system remains to be seen. But they may even, in time, lessen the hostility of the press to the judiciary – which would doubtless come as a relief to Lord Phillips and his successors as Lord Chief Justice.
Lord Woolf’s ‘recipe for bringing sense into sentencing’
Source: Making sense of sentencing, a speech given by the Lord Chief Justice to the Institute of Criminology on 12 May 2005. A copy can be downloaded at: www.dca.gov.uk.
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