Press ganged

After the sensationalism surrounding burglary sentencing, Chris Baker finds that public perception of the courts as soft touches on sentencing is leading to rapid reform, despite the problem of prison overcrowding

Mr Bumble may have memorably complained that 'the law is a ass' in Charles Dickens' novel Oliver Twist, but only the Sun would dress a donkey up as the Lord Chancellor and take it to Parliament Square.

The tabloid newspaper's 'kick up the ass' for Lord Irvine was just part of the scorn Fleet Street piled on his recent comments about prison sentences for burglars.

The Lord Chancellor was trying to help ease a political row by saying he had 'no difficulty' with the Lord Chief Justice, Lord Woolf's guidance on sentencing.

But it only made matters worse.

The row started on 19 December 2002, when Lord Woolf issued guidance in a ruling on two appeals, McInerney and Keating (see law report, [2003] Gazette, 13 February, page 25).

In it, he suggested a mandatory prison sentence for all burglaries may not necessarily tackle the crime because of prison overcrowding.

Forced to issue a statement last month because of the resulting uproar in the press - which had wrongly construed him as saying burglars should not be sent to prison - Lord Woolf denied his comments constituted a 'charter for burglars' (see [2003] Gazette, 16 January, 3).

He explained: 'It is also suggested that the court recommended that all first or second-time burglars, who might otherwise be sentenced to up to 18 months' imprisonment, should be given a community sentence.

In fact, the court made the recommendation of a community sentence as a starting point.'

In other words, a community sentence was the point where the sentencer should begin considering what should be the correct sentence - not the only punishment available.

'We make this statement to correct the inaccurate reporting that has taken place,' he said.

Criminal lawyers are largely sympathetic, but they are surprised at the storm that broke over Lord Woolf and Lord Irvine's heads.

'All that Lord Woolf was trying to do was to give a bit of guidance which was misreported in the press,' says Sandy Morrison, chairman of the Criminal Law Solicitors Association (CLSA) and a partner at Plymouth firm Woollcombe Yonge.

'It was the Sun and the Daily Mirror nonsensically extracting what they thought was the soundbite from a very long judgment.

If you actually read the judgment, it's perfectly obvious what he was saying, which was that you shouldn't lock up all burglars and then he gives guidance on that.

I have no problem with that at all.'

CLSA director Rodney Warren, who is also chairman of the Law Society's access to justice committee, agrees.

He says: 'I thought the sentencing guidelines in relation to burglary were already relatively clear and I was a little surprised when the Court of Appeal and Lord Woolf decided to clarify the entry point in certain circumstances.'

But Professor Martin Wasik, chairman of the Sentencing Advisory Panel (SAP), is more strident in his views.

'Guidelines from the Court of Appeal encourage consistency in sentencing.' he says.

'They are not issued on the spur of the moment, or as a response to media pressure, but after a period of deliberation and public consultation.' It was on the back of recommendations from the panel that Lord Woolf issued his ruling.

Franklin Sinclair, partner at national criminal law firm Tuckers, is not so sure.

He says: 'The only reason for Lord Woolf's clarification was the press.

The judiciary is tending to react to what the government says and what the press says.

We are as close as we ever have been to the media running the country - politicians and now even judges are scared of the press.'

However, the press knows its readers - and knows exactly what will fuel their fears of crime.

In the judgment, Lord Woolf pointed to the findings of the latest British crime survey.

Nearly 90% of respondents believed the sentence that would be given by the court would be less severe than the one that was actually given out.

People see the courts as a soft touch.

Mr Warren says: 'Speaking objectively as a member of the public rather than a criminal defence solicitor, I would expect anyone who has burgled my house to go to prison.

I think the broad swathe of the public would agree with that.

'But it's also right that judges must have the freedom to take into account other circumstances of the offence - both those that serve to aggravate it, increasing the sentence, and those that serve to reduce it.'

But the flow of guidance is causing problems, according to Mr Sinclair.

'There are lots of guidelines coming out from individual cases,' he says.

'People like shoplifters and second-time disqualified drivers are getting custodial sentences.

'The public will still think that burglary is more serious than driving without a licence - but that's the problem you get putting out guidelines in this piecemeal fashion.'

Mr Sinclair is pleased that Lord Woolf has acknowledged that prison overcrowding is an issue in deciding how to sentence relatively minor burglaries.

But he reckons members of the judiciary are 'authors of their own misfortune'.

Powers covering new offences such as racist behaviour, new indicators for assessing the seriousness of crimes and changes to the system for releasing prisoners on licence have all caused increased sentencing, he says.

Perhaps Lord Woolf would have been spared his press lashing had he followed the recommendations of the SAP more closely.

The guidelines he issued include most of the proposals from the panel.

The court accepted its aggravating and mitigating factors and some of the starting points, but it gave greater emphasis to community sentences in less serious cases, which is where the trouble began.

The SAP is an independent public body set up by the Home Office in July 1999 to encourage consistency in sentencing in the Crown Court and the magistrates' courts.

The Court of Appeal is obliged to consider the advice of the panel before issuing sentencing guidelines for groups of offences.

The panel itself has the autonomy to propose that the court should issue or revise guidelines.

The panel's 12 members are appointed by the Lord Chancellor after consultation with the home secretary and the Lord Chief Justice.

They currently include judges and academics as well as public representatives, but no practising lawyers.

Since 2000, the Court of Appeal has issued guidelines based on the panel's proposals in relation to extended sentences and offences involving child pornography, rape, and offensive weapons.

In addition, it has largely adopted the panel's recommendations in relation to minimum terms in murder cases, the importation and possession of opium, and handling stolen goods, as well as taking the panel's 'general approach' with regard to racially aggravated offences.

It was only in relation to environmental offences that the Court of Appeal in 2000 considered the panel's advice - the first it had given - but decided not to issue sentencing guidelines.

The criminal justice White Paper, Justice for All, expounds on a new strategy for sentencing.

For the first time, the purposes of sentencing will be laid out in legislation (with protection of the public paramount).

It will see the creation of a Sentencing Guidelines Council, to which the SAP will report, rather than the Court of Appeal.

The council, chaired by the Lord Chief Justice, will be responsible for setting guidelines for the full range of criminal offences.

Parliament will have a role in scrutinising its recommendations.

The White Paper says the problem with the current system is that the guidelines are not comprehensive and are not set down clearly in one place.

Mr Sinclair maintains that both the system and the SAP work well by and large, but the recent outrage was more of a storm in a tea cup.

'The SAP was established to provide guidelines about consistency of sentencing.

But like everything else, it hasn't really been given a chance to work,' he says.

As Mr Morrison says, politicians and the press need to realise that guidance is needed for categories of crimes that cover a multitude of sins: 'You cannot have hard and fast rules for any punishment - you have to look at the individual circumstances of each case and each defendant and work out what the appropriate punishment should be.'

Criminal lawyers are agreed that the recent furore over Lord Woolf and Lord Irvine's comments, while unusual, was just a reflection of lazy journalism and sensationalist spin.

Even so, problems with prison overcrowding are affecting the way the judiciary views sentencing.

Mr Sinclair says there have been two other rulings in the past 12 months where the judges noted prison overcrowding.

As a result, Lord Woolf's controversial ruling 'has been on the cards for about a year now'.

The Criminal Justice Bill is seen as the government's attempt to respond to a public apparently hungry to see more offenders put away.

Prison overcrowding has been an influence on the sentencing system in this country since the days of transportation to Australia in the 18th and 19th centuries - and the Bill looks set to ensure that the practice continues well into the 21st century.

Chris Baker is a freelance journalist