Sentencing must remain free from political interference

For over fifteen years, the Sentencing Council, made up of veterans from across the Criminal Justice System, has issued sentencing guidelines to our criminal courts, independently of politics. Two weeks ago, in what would become the last days of her tenure as Justice Secretary, Shabana Mahmood announced plans for politicians to oversee all sentencing guidelines before they are issued to courts, giving a power of veto to both the Lady Chief Justice and the Justice Secretary.

A sentencing guideline exists for most criminal offences and the Council publishes more widely applicable guidelines to assist courts sentencing particular types of offenders, such as youths and those with mental or developmental disorders. Using the guideline for a specific offence, the court assesses the culpability of the offender and the harm caused to their victim and wider society, which gives a starting point for sentencing and a sentencing range. Within that range, the court then considers the aggravating and mitigating factors (a non-exhaustive list of which is provided in the guideline) to arrive at the appropriate sentence.

Over a decade of prosecuting and defending in the criminal courts, I have found these guidelines very useful in shaping my submissions, negotiating acceptable bases of pleas, advising clients and determining when to appeal. They are, for the most part, logical and easy to digest. They focus the parties’ minds on the factors that determine the length and type of sentence,  and provide a helpful checklist of considerations which reduce omissions that lead to injustice. They are straightforward enough to show to most clients, demystifying the law and starting the rehabilitative process for those who have either pleaded guilty or been convicted at trial. Perhaps nothing can achieve the panacea of consistency and predictability in sentencing, but the sentencing guidelines bring us closer.

Yet the guidelines are flexible, with overlap between the categories of offending and the inherent latitude in a sentencing range. Further, a judge may disapply the relevant guideline if it would be contrary to the interests of justice to follow it. In my experience, it is rarely necessary to request a judge depart from the guideline (and rarer still for a judge to do so).

Whilst there is an argument for greater diversity on the Sentencing Council, its current members have spent their lives working in different roles within the Criminal Justice System. Consequently, the Council has vast and varied experience of the causal factors and implications of offending, of how sentences impact defendants and their loved ones, and of what justice looks like for victims of crime. Such an independent body is better placed to determine fair and appropriate sentencing guidance than politicians. 

By giving the Lady Chief Justice a veto, Ms Mahmood was able to paint the move as affording “greater democratic and judicial oversight of the Council’s work,” paying lip-service to the constitutionally fundamental separation of powers. However, the LCJ is appointed by the Crown on the advice of the Prime Minister, so arguably both vetoes ultimately reside with the governing party.

“Policy must be set by parliamentarians, who answer to the people,” Ms Mahmood declared. It is hard to argue with that, but this move goes further than setting policy. Parliament already has the legislative power to set minimum and maximum custodial terms - these are spelled out in each sentencing guideline. The government now seeks to control what was always the domain of the judiciary: how the factual nuances of a case and the circumstances of the offender influence their sentence within the parameters set by Parliament. Those nuances are best determined by the sentencing judge, applying the guidance of an independent expert body like the Sentencing Council. 

Politicians lack the collective expertise or the neutrality of the Sentencing Council to determine what considerations should influence a defendant’s sentence. Punishment is but one objective of sentencing, and yet it is likely to be the main focus of politicians hungry for popular support. Of course, punishment and deterrence are key functions of the Criminal Justice System, but rehabilitation of offenders is arguably its most important role - what better way to prevent crime and protect the public than to support offenders to avoid reoffending? Unfortunately, this long-sighted approach is not a vote-winner, which is why sentencing must remain as removed from politics as possible. The punitive element of sentencing can be achieved without political oversight which may compromise the independence of the Sentencing Council.

There are other stakeholders in the Criminal Justice System apart from the obvious victims of crime, not least the offender themselves and their loved ones, but such marginalised individuals are unlikely to garner political sympathy. It is only by working in the Criminal Justice System, coming face to face with the ordinary people encountering it, that an appreciation is gained that offenders are just that – ordinary people often left behind by a society keen to write them off as ‘criminals.’ 

Everyone wants a harsher justice system until they find themselves in need of its mercy. That is why the politicisation of the sentencing process should cause great concern for all. Neither a judge nor the Sentencing Council is directly incentivised as politicians are to demonstrate a ‘tough on crime’ stance. With our packed prisons not fit for purpose, it is dangerously ill-advised to incrementally increase sentences by limiting the freedom of courts to consider a wide range of factors relevant to the offender in reaching a just sentence.