The Sentencing Academy welcomes David Lammy as the new Lord Chancellor, and Baroness Alison Levitt and Jake Richards as new Parliamentary Under-Secretaries of State. With Second Reading of the new Sentencing Bill this week, they take the helm at a vital point in the development of sentencing law and policy.
The Bill follows on from the final report of the Independent Sentencing Review (ISR) conducted by David Gauke (on which our overall view can be found here). We are pleased to see most of the key proposals from that review carried through into the legislation, especially the extension to the maximum period for which sentencing can be deferred from 6 to 12 months. We called for this change in our submission, based on our previous reviews of practice and of the law, guidance and existing research in this area. Our submission also called for clear guidance to assist sentencers, which we hope to see brought forward in due course.
Before publication of the Bill, we published further reflections on the proposed introduction of a presumption against short custodial sentences, in which we questioned whether the measure would refer to sentences of 12 months or less, or less than 12 months, alongside some additional observations on the “exceptional circumstances” requirement for imposing a short sentence, and the offenders and offences that might be excluded.
We now know that the presumption will apply to sentences of 12 months or less, and will be specifically in favour of a suspended sentence order rather than any other disposal. Suspended sentences will also, as recommended by the ISR, be available for terms of up to three years rather than two. This sets a high threshold. Almost two thirds (62%) of immediate prison sentences are 12 months or less and therefore within the ambit of the presumption (unless one of the Bill’s exceptions applies). Combined with the extended availability of suspended sentences, it is likely to be one of the Bill’s most controversial elements, despite the longstanding consensus on the underlying principle, and an area of focus for Parliamentarians seeking to amend the Bill at later stages.
As the ISR recommended, the Bill will also introduce a new ‘earned progression’ model for those serving a Standard Determinate Sentence (SDS), which is the vast majority. The final report envisioned that ‘most SDS offenders would be released at the one third point if they have engaged constructively with the prison regime’ (page 55). The legislation adopts a different approach, as outlined in the Overarching Factsheet: ‘The new Progression model sets a minimum release point of one third for those serving standard determinate sentences which currently have an automatic release of 40 or 50 percent….if they behave badly, they may spend longer in custody’.
This effectively means a default release at the one third point, which will more effectively contribute to reducing the size of the prison population. It will also generate public criticism. The exceptional change from a 50% to a 40% release point attracted adverse media coverage and the Bill appears to reduce the proportion of sentence served in prison still further – and for most prisoners.
The most high-profile change between the ISR proposals and the legislation is the addition of an amendment to the Coroners and Justice Act 2009 to require the Lord Chancellor and Chief Justice to give consent before new guidelines from the Sentencing Council become definitive, and for the Lord Chancellor to approve the Council’s annual business plan (clauses 19 and 18 of the Bill respectively). This follows the disagreement earlier this year between the Council and the previous Lord Chancellor, Shabana Mahmood, over draft guidelines advising that pre-sentence reports should normally be considered necessary when sentencing certain offenders including those from an ethnic minority, cultural minority, and/or faith minority community. The disagreement led to emergency legislation in the form of the Sentencing Guidelines (Pre-Sentence Reports) Bill to overturn those guidelines, on which the Sentencing Academy briefing can be found here.
The Lord Chancellor’s new powers introduce a more explicit political element into the development of guidance for the judiciary. It moves the guidelines in England and Wales closer to the US-based model, where the legislature in many states approves guidelines and appoints members to sentencing commissions. This approach has long been rejected in England and Wales. It is unclear when the enhanced powers would be used beyond the unusual circumstances of a change of government shortly before publication, given that the 2009 Act already requires the Council to consult with the Lord Chancellor on draft guidelines. Moreover, no indication is given in the legislation as to the purpose for which they might be used, as no list of reasons for not consenting to guidelines or approving a business plan is set out.
There is a risk that this political oversight of the Council’s guidelines and workplan may undermine judicial confidence in the Council and its guidelines. In addition, stakeholders may be less likely to participate in consultation exercises, knowing that any guideline could be overruled by the Secretary of State. This would risk a return to the inconsistency in sentencing practice that pre-dated the establishment of the Council (and its predecessor bodies the Sentencing Guidelines Council and the Sentencing Advisory Panel). We therefore hope to see these provisions- which have not had the benefit of public consultation- properly scrutinised as the legislation passes through Parliament.
Relatedly, we are disappointed not to see the Bill take up the ISR recommendation of a new independent advisory body to guide Government, Parliament and the public on what works to reduce crime and reoffending, and on the impact of proposed measures on prison and probation capacity. This recommendation was also made by the Justice Committee in the report of its 2023 inquiry into public opinion and understanding of sentencing and has been supported by a range of stakeholders.
We hope that its absence from this legislation does not indicate that the Government is opposed to this key reform and look forward to discussing its plans in this respect with the new ministerial team when we have the opportunity.
The Sentencing Academy will publish further reflections on the legislation and any proposed amendments to it as it passes through Parliament.
