Towards effective sentencing

TOWARDS EFFECTIVE SENTENCING
MEMO FROM THE LONDON CRIMINAL
COURTS SOLICITORS ASSOCIATION

To what extent are prisons occupied by people who should not be there?
The answer to this question involves a judgement about the decision making process in criminal Courts which leads to custody. There are two aspects; the personal characteristics of the offender and the quality of the judicial judgement that the case has passed the immediate custody threshold and there is a secondary aspect to the latter judgement namely, whether the punishment is commensurate and has the least possible custody been imposed. The personal characteristics of the offender are relevant in many ways and are usually at the centre of the debate about diversion, in particular mental illness, but characteristics also impact on the match between the available offender programmes and disposals e.g. drug treatment and rehabilitation programmes for people with high level drug dependency and serious criminality. Judicial decision making is difficult to unravel particularly as it involves a revisit to the complete facts and criticism of the sentencer if the judgement is that the sentence is overly harsh. There is a third factor at play which has been the tendency of government to depart from the traditional proposition that a sentence is punishment and once complete means that the offender has paid “the debt to society”. The modern trend has been to impose licence regimes and other forms of extended order in an attempt to control offenders post custody e.g. anti-social behaviour orders and a further significant development is the current consideration of violent offender orders. We thought we could best explain how these matters may come together by a case example. Mr. R on the 3rd February 2007 urinated in the street and used abusive language. This was a Saturday in a busy high street. After being spoken to by Community Police Officers he used further abusive language in a At the time of the commission of the offences Mr. R was subject to an ASBO obtained by his Local Authority which was in essence directed towards him not upsetting his neighbours but which extended in broad terms to his behaviour within that London borough. Further Mr. R had been involved in a motor vehicle offence on the 15th July 2006 when he had failed to provide a specimen for analysis for which he had received a sentence of imprisonment of 4 months which was suspended and the Public Order Act offences of the 3rd February placed him in breach of the suspended sentence. In mitigation it was said that Mr. R had a severe alcohol problem, had generally done very well before and after the 3rd February as he had been prescribed antabuse but that the 3rd February was an isolated lapse when he had been drunk. The District Judge faced a difficult sentencing decision in so far as the events themselves of the 3rd February were of a kind which in their own terms might have been dealt with as drunk and disorderly but also involved breach of an ASBO and a suspended sentence and the judicial decision was to imprison Mr R immediately for 2 months concurrently on each of the Public Order Act offences and to implement the 4 months suspended sentence making a total of 6 months imprisonment. The District Judge characterised the offences as disgusting and regarded their occurrence as a persistent failure to comply with the Orders of the Court. On appeal in the Crown Court the conclusion was that the implementation of the suspended sentence was not correct but the two months imprisonment for the Public Order Act offences which placed him in breach of the ASBO was correct. The client had spent 3 weeks in prison, served a further week and was then released subject to the suspended sentence and the period of supervision that accompanied it. This is a typical case of relatively low level criminality resulting in imprisonment and which involved a vulnerable person with an addiction problem and took no account of the expensive resources of prison when making the decision to use them. The Probation Service prepared a report which was very positive with regard to Mr. R’s response to supervision but it is clear that Court’s take an extremely serious view of breaches of ASBO’s. This appears to be part of the traditional Court culture that its Orders are to be obeyed and failure to obey them gives rise to the most serious of punishments which in all the circumstances might be regarded as disproportionate punishment in relation to the actual behaviour that Mr. R exhibited in the street. This is a situation which our members commonly encounter and the primary difficulty is that Courts are forced away from commensurate punishment for the actual behaviour into consideration of the consequences of breaches of Orders and conditions aimed at controlling behaviour. That vulnerable people who are mentally ill, addicted and leading disorganised lives inevitably breach those Orders appears not to be a factor often in the calculation of sentence because the Court is put into the position of seeing the breach and the behaviour as a challenge to its authority. Your terms of reference raise the issue about alternatives to imprisonment. As an Association we certainly support the proposition that judicial notice should be taken of the cost of imprisonment as a proper factor in determining whether the use of resources by the community of that level are appropriate to the behaviour involved in the commission of the crime. The alternative management of someone like Mr. R would be to reach a true view of how he is behaving in the community, for example, the type of case meeting which is common in social work settings and which might involve a discussion between the Magistrates, the Probation officer, Mr. R and his lawyer (if legal aid were available) and someone from his general practitioners surgery as they are in fact the primary body responsible for medicating his addiction. Participation in an alternative community led solution might be a great deal cheaper then the cost of imprisonment although it has funding implications for all of the professionals involved. We must also comment on the numbers of people now appearing unrepresented either for low level crimes (cases lack sufficient merit for a grant of a representation order) or the applicant fails the means test. There is a danger that this group of Defendants receive greater punishment than if represented. This means that more Defendants have then stepped higher up the ladder of sentence towards custody. Over time this will have the effect of accelerating larger numbers into custody. In the case of Mr. R he arrived at Court without legal representation and was initially represented under the Duty Solicitor Scheme. For people like Mr. R who have a “regular” Solicitor there is some continuity of representation and knowledge of background circumstances which means a life story is better told. A loss of “high street” practices, fixed fees and difficulties with legal aid all mean that the quality of what takes place in the Courtroom is likely to suffer and this will lead to increased numbers in custody. There is a complex link between legal aid, quality of representation and rates of imprisonment. No doubt you will receive substantial evidence on other issues but we hope it is helpful if we add a comment with regard to our Association’s experience of offending behaviour by young people. It is often located in poverty, difficult emotional circumstances and undiagnosed mental illness like depression. Very large amounts of money are often spent on young people in secure accommodation, should they be acquitted of the criminal offences which brought them into that setting funding almost instantly ceases. As an Association we would welcome increased youth provision in sports leisure and education, possible diversion into an educational setting for young offenders, out reach youth social work and mentoring programmes and a renewed emphasis on apprenticeship and skills training. Greg Powell President London Criminal Courts Solicitors Association

Source: http://www.lccsa.org.uk/assets/documents/consultation/towards%20effective%20sentencing.pdf