Letter from the Chairman of the Committee to the Chairman of the Sentencing Guidelines Council

Dear Lord Chief Justice

Reduction in Sentence for a Guilty Plea

The Home Affairs Committee has now considered this draft revised guideline, and has a number of comments to make. Some relate to the document itself, while others are broader observations, concerned with wider sentencing policy which is a matter as much for the Government as the judiciary. (I am therefore copying this letter to the Home Secretary.)

Firstly, the Committee recognizes the benefits to victims and witnesses - including police witnesses - of guilty pleas, and of the overall policy of encouraging them. However, while we welcome the emphasis on interpreting the sliding scale of reductions as maximum figures rather than absolute entitlements, and acknowledge the need for consistency and certainty, this may be insufficient to achieve the less rigid approach that is desirable. There is nothing in the guideline to indicate to sentencers to what extent and in what circumstances their discretion to deviate from the guideline can be exercised. The guideline even in its revised form, therefore, does not offer reassurance to the public that judges passing sentence in cases of wholly exceptional gravity, such as R v Sweeney (2006), will not feel constrained to make what may be widely regarded as inappropriate reductions. We believe that the guideline should contain clearer and more explicit guidance on the use of judicial discretion.

We recognise that the guideline has to work within the framework provided by the Criminal Justice Act 2003. However, it is important to recognise that a small number of controversial decisions have the potential to damage public confidence in the sentencing framework. We believe the guideline should make clear that in exceptionally serious cases the discount may be minimal, or disallowed altogether. The current guideline should go so far as is possible in this direction and we draw the Home Secretary's attention to the desirability of amending the law when parliamentary time allows.

Secondly, we continue to be concerned by the lack of evidential basis for the draft guideline. The Sentencing Advisory Panel has pointed out that "no definitive theoretical or philosophical basis for the reduction principle ... has ever been set out". Likewise there appears to be no testable empirical basis for the specific reductions set out in the sliding scale. We recommend that research should be commissioned by the SGC and the Home office in order to provide a clearer understanding of how the offered reduction influences the decisions made by offenders.

We also note that there has been no systematic monitoring of the original guideline. We believe that there should be a monitoring system in place for all guidelines to enable their impact to be objectively assessed. We recommend that the Home Office should give consideration to the best means of setting up such a system.

Thirdly, it is clear that the general public does not fully understand the rationale for having discounts for pleading guilty. We believe that the Home Office, in liaison with the Council, should be pro-active in seeking to extend public understanding of the sound reasons underpinning this policy. In this regard they should take as a model the way the Department for Constitutional Affairs has recently worked to promote better understanding of the Human Rights Act and its implications.

Fourthly, the Committee considers that public confidence is diminished by the way indeterminate sentences are calculated and presented to the public. The very concept of applying a sentence reduction to an indeterminate sentence is very hard to explain to the public. It is the combination of the discount for guilty pleas and the halving of the overall sentence, in accordance with the Criminal Justice Act 2003, that gives rise to most controversy. The range of offences covered by indeterminate sentences is drawn so widely that it is not possible to recommend a simple change to current procedures. However we do recommend that these matters should be reconsidered by the Government in the context of their "Making Sentencing Clearer" consultation.

We note with concern that in the case of R v Webster and French (2005), it was revealed that the defendant Webster was shown a notice by Hertfordshire Constabulary stating that if he admitted guilt at the interview, he would receive the maximum reduction in sentence of one-third. We believe that clear guidance should be given to the police and the Crown Prosecution Service as to the terms in which they can draw defendants' attention to the guilty-plea provisions, to ensure there is no question of giving undertakings that might be thought to tie the hands of sentencers. This is important both so that suspects are not induced to make admissions inappropriately before they know the case against them and have had legal advice; and also so that it is clear that the court will have discretion to give the appropriate discount in due course, which in a few exceptionally grave cases may be a very limited discount.

In the meantime, we recommend that the current guidelines give sentencers explicit advice on how to present indeterminate sentences in the most serious cases. We strongly suggest that emphasis should be placed on the indeterminate nature of the sentence and the strictly conditional nature of the earliest possible release date. (In the cases of both R v Sweeney and R v Webster and French the courts made clear that, given the danger these defendants posed to the public, they were very unlikely to be released for many years, if ever.)

I should add that in our forthcoming major inquiry entitled "Towards Effective Sentencing", we may return to consider in more depth some of the above issues, as well as other matters such as the use of support post-sentence restorative justice to promote remorse in offenders and to alleviate the fears of victims.

Rt Hon John Denham MP

Chairman, Home Affairs Select Committee

13 March 2007