Short on time

The Sentencing Advisory Panel (SAP) has issued guidance on how to approach sentencing offenders who commit bail offences by failing to turn up at court or at the police station or by turning up late.

The advice is not as controversial as some of its previous papers have been but it is of real interest as non-compliance with bail impedes the proper administration of justice. In addition it is one of those offences which carry a short maximum sentence (three months imprisonment in a magistrates court, 12 months a the crown court). Given short sentences are subject to question over their sentencing value, it is important that any recommendations which propose short periods in custody should be properly argued and justified. Their relationship to other sentences imposed at the same time needs to sensibly determined as well. Is it ever appropriate to impose a concurrent sentence for a bail offence alongside the sentence for the original offence? Is there a difference in principle between the approach to be taken in the crown court and the magistrates court?

Subsidiary offence

According to SAP research current sentencing practise depends on whether the bail offence is subsidiary to another offence being sentenced at the same time or the only offence or main offence. In 2004, 62 per cent of bail offences were subsidiary of which 96 per cent were sentenced by magistrates. In the magistrates court roughly a third went to prison, a third were given community-based penalties and a third were given a fine. In the crown court 58 per cent went to prison, 17 per cent were sentenced in the community and one per cent were fined. The sentences were universally short, predominantly between 15 and 28 days in either crown or magistrates court.

The SAP concluded, in respect of bail offending, that for sentencing purposes the difference between subsidiary and main offences was irrelevant. Any bail offence should be sentenced on its own merits.

The SAP was mindful of the various experiments and pilots used to assist defendants to remember to turn up at court. Operation Turn Up was a zero tolerance approach to bail offenders and has been regarded as very successful. There are inter-agency bail agreements setting out the agency roles in relation to bail and making bail work. Such agreements exist in 32 areas and it is anticipated that the definition of responsibilities contained in such agreements will assist. There is also a pilot on phone reminders which has not yet been fully evaluated. Electronic tagging is relevant to attendance in due course because it reveals non-compliance with bail conditions prior to the required attendance.

Categories for bail breach

The recommendations set out four categories of bail breach which determine a sentencing start point and available range (in accordance with SAP policy on their reports) and review aggravating and mitigating features. This is set in the context of the Sentencing Guidelines Council guideline on sentencing generally. In other words each example assumes a defendant who is a first-time offender who has been convicted after trial. In the case of bail offences the SAP make no distinction between those who fail to surrender to the police and those who fail to surrender to the court.

The first category of offender is one whose offence causes trial adjournment and witnesses to be sent home with consequent loss of quality of evidence or distress to witnesses. Alternatively in this category is the offender who delays the judicial process significantly, including sentence in the same or other cases. The starting point for such cases is six weeks custody with a range from medium community penalty to three months custody (magistrates) or 12 months custody (crown). The offence is made worse by long absence, serious attempts to evade justice previous convictions or attempts to undermine justice. In this and all other categories the mitigating features identified are caring responsibilities, genuine misunderstanding, prompt voluntary surrender or inability to understand bail requirements.

The second category involves cases where the offender fails to appear and the trial proceeds anyway. In such cases the starting point is community penalty with a range from medium community order to six weeks custody. The same aggravating features have been identified in this category.

The third category involves failing to surrender other than for the trial with no significant delay arising. In such cases the starting point is a low community order; the range is Band 'C' fine to medium community penalty. Only previous relevant convictions and deliberate attempts to undermine justice are noted as aggravating features.

The fourth category is for those who surrender late on the day but without delaying the case. Their start point is a fine on Band 'B' with a range of fine Band 'A' to fine Band 'C'. In this case the aggravating features are the same as in category three and the mitigating features identified are the same as for all categories.

Within the advice framework the SAP has a series of recommendations affecting such cases. Its view is that they should be sentenced without delay, that chaotic lifestyle is not mitigation, that consecutive sentences to main offences are usually required subject to totality principles. Acquittal of the original offence is not mitigation and the fact that a trial proceeded in absence is not mitigation.

The SAP advice does not deal with the short sentence problem.

Short sentences may be ineffective in terms of their rehabilitative potential but they exist to penalise and should be supported in appropriate cases. In particular they are an essential tool in the armoury of courts faced with those who are prepared to break court orders and as a result disrupt either individual cases being dealt with or disrupt the organisation of the courts, the proper administration of justice and/or cause delay and anxiety to all those people being pushed further and further back in the court waiting lists because of an offenders decision not to appear in response to his bail.