Public opinion and understanding of sentencing

In September 2023, the House of Commons Justice Committee published its report on the public’s understanding (or more often, lack of understanding) of sentencing. It is a thoughtful, objective and balanced document that makes a welcome contribution to the debate on what is perhaps one of the most important parts of the criminal justice system.

By and large, it seems that the trial process itself is reasonably well understood by the public at large. The presumption of innocence and the need for a jury to be sure before convicting are relatively simple concepts to understand and as far as I can ascertain, they are understood by members of the public.

Sentencing in general

Sentencing is a different matter. Once a defendant has been convicted, all of the constraints in place to ensure a fair trial disappear and information not known previously about the defendant and the case comes into the public domain. Further, especially in an age when social media rules, public opinion on what sentence someone should receive is broadcast ahead of and after the court has sentenced a defendant.

Increasingly in recent years, the views of a victim (or the family of a victim in a fatal case) are taken into account by a sentencing judge and rightly so. The wider impact of crime is much better understood than it was, and the recent trend of longer sentences reflects this.

Consistency in sentencing is vital and local inconsistencies led to the establishment of the Sentencing Council, which over the last few years has issued a large number of guidelines on sentencing for a wide variety of offences. The effect of this has been to reduce judicial discretion and turn the sentencing process into a process of fitting crimes into ‘boxes’, unless the judge considers a case to be truly exceptional, in which case, they need to justify a significant departure from the guidelines and set out clearly their reasons for doing so.

Public opinion

Much of this is not known to the general public, who seem to think that a judge has ‘carte blanche’ to pass whatever sentence they wish. A hardening of attitudes towards offending, especially serious offending, has led to calls for whole life orders, mandatory life sentence for certain offences and limitations on the granting of parole. Equally, there has been much debate recently about the compulsory attendance of defendants at their sentencing hearing, by use of ‘reasonable force’, if necessary, if a defendant refuses to attend. To many, these are worrying developments and are signs of politicians pandering to public opinion. This debate is unlikely to go away.

As many a judge will say, sentencing is an art not a science and the ultimate aim is to do justice, passing the right sentence that punishes the offender and gives satisfaction to the victim, while also reflecting any mitigation that may be present. Sadly, this proves often not to be the case. The recent sentencing of and successful appeal by Jordan McSweeney for the stalking and murder of Zara Aleena is a case in point, where the public outcry when his minimum term was reduced from 38 to 33 years demonstrated how public feeling at the appalling nature of a crime overshadowed an objective view of how the sentencing guidelines for murder should be applied.

The recommendations

Clearly, for anyone who is a victim of serious crime, or a family left behind, no sentence will be adequate punishment. However, objectivity in the sentencing process is necessary to maintain the consistency that the system requires and the Justice Committee’s recommendations, especially in relation to educating the public and simplifying terminology, are welcome. In its conclusions, the report says, ‘At present the public debate on sentencing focuses almost exclusively on individual cases and we believe that better analytical information could help to redress this imbalance.’

The proposal for greater access to statistics and more analysis of the published data would go a long way towards helping the public see the overall picture in relation to sentencing rather than just isolated, high-profile cases.

Finally, although the televising of courts has long been a controversial topic, in the context of sentencing, the public being able to see and hear a judge explain their reasoning for imposing a particular sentence is the best possible way for an understanding of the process.

Simon Spence KC is a barrister at Red Lion Chambers
redlionchambers.co.uk

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