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As we enjoy the ‘season of mists and mellow fruitfulness’, changes in the justice system continue – but those more recent are positive. The Magistrates’ Association is delighted to congratulate Sir Igor Judge on his appointment as the new Lord Chief Justice. Sir Igor is well known to us as many members have met and worked with him at various judicial functions. He is a strong supporter of the magistracy and our role within the judiciary, as well as the principles of sentencing we hold dear. We look forward to working with him as our President in developing and extending the professional contribution that we make to the judicial system. Our current President, Lord Phillips, becomes Chief Law Lord and President of the Supreme Court. The Association has always been grateful for his guidance and wisdom since we became members of the judicial family. We have particularly valued his support during the continuing debate about the practice of sentencing and our custodial powers.
At such a time it is encouraging to receive reassuring reports on the new sentencing guidelines training. I am heartened that many members, who at first may have been a little sceptical, have remarked that they have found the training sessions not only enjoyable but also very productive in delivering a greater consistency in our approach. We are appreciative of the valuable contribution given by our justices’ clerks and legal advisers to this training.
Judicial independence is the guarantee that those who transgress will receive sentences based on structured principles rather then factors such as availability of programmes or prison places. Sentencing practice is straightforward and clearly defined in the Criminal Justice Act 2003. It is the duty of the judiciary to apply our laws in a consistent and proportionate manner. The Magistrates’ Association, along with others, resisted proposals to introduce formulaic sentencing through a grid such as the crude Minnesota matrix which would have removed the very important discretion that ensures parity of approach, but recognises the individual nature and specific circumstances of each offence and offender.
I can agree with Marcel Berlins (footnote 1) who argues that ‘sentencing policy is in a mess’. We are all frustrated by the continuing changes in the justice system and the apparent lack of real understanding of the processes involved in sentencing. We would agree with the Justice Committee (footnote 2) when it criticises the plethora of new laws and their subsequent impact on sentencing policy and practice.
We are fortunate that senior members of the judiciary understand and uphold our role and sentencing powers, but media coverage sometimes appears unfair. Headlines such as ‘Magistrates should be banned from handing out custodial sentences’ (footnote 3) not only damage confidence but also irritate. It is an inexcusable choice of words as a ban is a restriction imposed on someone who has violated law or rules!
The article described a report entitled Building on sand (footnote 4) by Professor Carol Hedderman. In this report she suggests that the prison population problem would be resolved by preventing magistrates from imposing short custodial sentences for non-violent summary offences, theft and handling. Such a rudimentary approach would denigrate the very principles of discretion and particularisation which underpin sentencing practice in a democratic society. It ignores factors such as repeat offenders, culpability and harm and the need to expand an already stretched community order programme.
Critics of short sentences claim they are ineffective. The Justice Committee (footnote 5) commented that ‘short custodial sentences are very unlikely to contribute to an offender’s rehabilitation; in fact, short custodial sentences may increase re-offending’.
If that is the case, it is surely an operational issue to ensure effectiveness and not a reason for restricting their imposition in the first instance. I would argue that to remove the power to impose short custodial sentences would be an unacceptable constraint on judicial discretion. In any case such a move would not tackle the underlying causes of offending behaviour. We all know there is a need for an appropriate sentence structure with a wider range of programmes.
All proposals about sentencing should be more informed through discussion particularly with practitioners who have the difficult task of deciding a proportionate sentence which is effective in responding to the purposes of sentencing outlined in the Criminal Justice Act 2003.
