When I was a schoolboy in the late 70’s, I used to sit in the public gallery at Teesside Law Courts where the chief magistrate (and the town’s first stipendiary judge) was the formidable war veteran, Colonel A B Peaker. He was a real character was Peaker, notorious for clearing the list before lunching at the Cleveland Club although in retrospect, one professional judge will always make decisions quicker than three lay magistrates and Peaker’s task was simplified by the limited sentencing options (then) of a fine, probation or imprisonment. There were no community service, curfew or treatment orders in those days and one can only guess what Peaker- a long way from the stocks himself – would have made of the sentencing options available to his successors now (and all the technology- tagging, CCTV, virtual hearings). Back then though, every town had a Peaker and while each of them was a law unto himself, statistics and case reports did not travel like they do now and idiosyncratic and erratic approaches to sentencing went largely unnoticed.
As a CPS prosecutor in London in 1985, I was amazed at the inconsistent approach to sentencing taken by different courts and magistrates. While the justices tended to be from the professional or landed classes, the sentences imposed could be potluck depending on who was in the chair that day. It really was that unpredictable and at a time where justices were much less informed than they are now, irrational decisions were commonplace.
The last three decades have seen many improvements in the criminal courts. Judges are more streetwise being drawn from a far wider spectrum of society and candidates are only appointed following close personal and professional scrutiny and intense competition with others. Lay magistrates, while dwindling in number, are now also highly trained and with all judges required to provide written reasons for their decisions, they don’t often get it wrong.
Perhaps the greatest improvement to the system was the establishment of the Sentencing Council in 2009 and the introduction of guidelines the courts are required to follow unless it is contrary to the interests of justice to do so. The Sentencing Council is an independent organisation that engages with judicial, government and non-government bodies to weave public opinion and the public interest into a template for a transparent, fair and consistent approach to sentencing. In theory (at least) there is supposedly a greater emphasis than ever on the role of the victim which is intended to increase public confidence in the criminal justice system generally (although the opposite is now true- post).
The Guidelines themselves, scrupulously drafted and constantly evolving provide a commendable template for consistency and all magistrates and judges are now required to sentence defendants within strict boundaries. These vary for different offences but the general principal for all cases is to break the crime down to the culpability of the offender and the harm caused by the offence which means assessing the accountability of the offender, the harm caused by the offending with a view to a fair punishment, the reduction of crime, the protection of the public and the reform and rehabilitation of offenders.
The imposition of guidelines for the courts has been a tremendous success. Everyone involved in the justice system now defers to them, to the extent where advocates addressing the court take the judges through the appropriate matrix line by line. The days of Dickensian pleas for mercy that could keep a man out of prison are as obsolete as the impact (perceived or otherwise) of individual predispositions. The framework for the punishment of offenders has evolved into a finely tuned instruction manual. Sentencing is no longer an art. It is a science.
While the penal system is fairer, more transparent and consistent than at any time in the past, the irony is that far fewer people are now being punished for breaking the law. Go to any magistrates or crown court today (those that have not closed) and you will find them ghost buildings with just a few skeleton staff and a handful of people kicking about. Even before Covid, the police and CPS, increasingly burdened with red tape and administration were not charging people in situations where they used to, opting instead for warnings, cautions, fixed penalties or simply taking no action at all. Of course it is not possible to get away with murder or any really serious crime but more and more people are getting away with just about everything else and each time they do, it undermines the very integrity of the system that the creation of the sentencing council did so much to enhance. In the author’s view the ensuing lack of faith in justice is what happens when successive governments put the exchequer before the public interest. It is what happens when a justice system is continually starved of money and investment. The system begins to fall apart. Stories of the Law and How It’s Broken is a 2018 book by an anonymous author known as “The Secret Barrister”. It is an astonishing, critical first-hand account of the current state of the criminal justice system in England and Wales and I cannot commend it highly enough.
As for court sentencing guidelines? I think they are fabulous, quite superb. A marvellous, glittering ship if you like, although like other glittering ships in these strange times, they are seriously underused and in danger of rusting in the Channel.
