An alien visiting the Earth and reading our newspapers and online media would wonder why convicted criminals were getting more lenient sentences than in the past. There is a difficulty with this narrative. It is a myth.
The reality is the opposite. In December 2009, the average length of all custodial sentences was 13.7 months. In December 2019, it was 18.9 months. For cases that could be dealt with only in the Crown Court, the average was 16.5 months in 2009 but 21.4 months by 2019. There have been further increases since. A generation ago, in 1993, the prison population was a little over 44,000. It is now a shade under 80,000.
What’s more, the average length of the minimum term that a person convicted of murder and sentenced to life imprisonment must serve before the Parole Board can consider release on licence rose from 12.5 years in 2003 to 21.3 years in 2016. Whether you approve or disapprove of this trend, it is the reality, and responsibility for it does not just lie with the courts but also with parliament, as becomes clear with an appreciation of how the system works.
Courts impose a range of sentences. At one end of the spectrum are absolute or conditional discharges; at the other, life sentences. When imposing a sentence, magistrates and judges must consider the culpability of the offender, the harm caused by the offending and thus assess the seriousness of the offence. Aggravating and mitigating factors are important.
The particular decision is not just on a whim. Parliament has set the overall structure and the maximum sentence available. It has determined that a court must not impose a custodial sentence unless the offence is so serious that neither a fine nor a community sentence is justified.
Parliament also set up a Sentencing Council that provides guidelines for different offences, which judges must follow except where it is in the interests of justice not to do so. These guidelines are there to promote consistency and to have regard to the impact on victims of offences, public confidence in the criminal justice system and the cost and effectiveness of various sentences in preventing re-offending.
Judges and magistrates must set out reasons for their sentencing decision in open court and in ordinary language, together with its effect. If they decide to depart from the guidelines, they must explain why. They are required to take account of any reduction to the sentence for a guilty plea.
Parliament specifies what period of any prison sentence must actually be served and also has effectively specified that most prisoners will serve only half of the sentence imposed by the court before they are released on licence. Judges take no account of the ins and outs of early release provisions when determining a sentence.
[su_pullquote]“In 2019, only 93 sentences were referred as unduly lenient”[/su_pullquote]
Individual sentencing decisions will be tailored to the circumstances of each case. They will not be arbitrary. If judges or magistrates go wrong, appeals will put them right. Between October 2018 and September 2019, of the roughly 70,000 sentences imposed in the Crown Court, there were 3,356 applications for leave to appeal against a sentence as too harsh, and in the same period some 672 appeals against the sentence were ultimately allowed.
There is a parallel corrective available to the Attorney General if she believes that a Crown Court sentence in a range of serious cases is unduly lenient. She may refer it to the Court of Appeal. In 2019, only 93 sentences were referred as unduly lenient, of which 63 were increased.
Occasionally of course judges do go wrong. We operate in public and state our reasons for making our decisions. Anyone is at liberty to disagree and can do so, explaining why. I welcome stimulating exchanges on whether either generally, or for specific offences or types of offender, sentences should be tougher or more lenient, but not knee-jerk criticism of a judge for applying the law and guidelines, which achieves nothing but the harmful erosion of confidence in the administration of justice.
