In this article, I only scratch the surface and the views expressed are my own alone. This is not an academic piece of writing, just some thought-provoking observations.
I was involved in the criminal law as a barrister and judge between 1977 and 2019. Since 2021, I have been researching into sentencing for murder. Research is a welcome change. I always wanted to think critically about the law, not just apply it. For many years after I started at the bar, sentencing was a case-specific, subjective matter. There was no appeal against what was thought to be a lenient sentence and appeals against severity could only succeed if a sentence were found to be wrong in principle or manifestly excessive. The latter phrase was interpreted strictly.
The offender focused approach to sentencing has now largely disappeared, displaced by guidelines which are closely followed. For murder, the mandatory life sentence remains, with, since 2003, statutory starting points, excluding the possibility of parole, increased, with effect from 22 June 2022, to 14, from the original 4. That provides an illustration of how the governments have increasingly sought to manage or micromanage sentencing over the last 20 years. The move to guidelines and starting points brought with it benefits in terms of consistency. However, the law of unintended consequences, if that is not too charitable an attribution, has meant that both the independence of the judiciary and of individual judges has been reduced. That matters, as does the fact that judges no longer feel so personally responsible for their sentences. With many of the judges of my early career, that burden of responsibility operated as a moderating influence. There was no escaping the fact that the judge, with no “superior orders” to hide behind, was doing something potentially dreadful to a fellow human being. I do not believe that those on a committee, deciding upon guidelines can feel the same. That comment also applies to politicians when they legislate.
Traditionally sentencing had overlapping objects: retribution, deterrence, rehabilitation, public protection, and the avoidance of vengeance or social unrest by ensuring acceptance of the penalty that the state imposes. Addressing those aims whilst avoiding costly – in financial and human terms - consequences has always been difficult. The politicisation of sentencing and a change in media accessibility and emphasis has modified and increased the practical importance of the fifth aim, pushing it towards penal populism.
Retribution
The weight given to retribution has varied. It now has more prominence than it did during the great majority of the twentieth century, when the focus was firmly on rehabilitation. I mentioned earlier the pleasure of research. That has involved discovering material of which I was unaware. For example, this extract from the Report of the Royal Commission on Capital Punishment 1948-1953:
‘52. Modern penological thought discounts retribution in the sense of vengeance. Lord Templewood went so far as to say that recently “the reforming element has come to predominate and that the other two (objects of sentencing - deterrence and retribution) - are carried incidentally to the reforming element” Sir John Anderson attached greater importance to deterrence but agreed in excluding retribution: “There is no longer in our regard of the criminal law any recognition of such primitive conceptions as atonement or retribution. We have over the years fortunately succeeded to an exceptionally large extent, if not entirely, in relegating the purely punitive aspect of our criminal law to the background.” ’
Lord Templewood (formerly Sir Samuel Hoare) was a Conservative politician and Sir John Anderson a National Independent MP. Both served as Home Secretary. One would not associate such words with the current or recent Home Secretaries.
There are a number of reasons why retribution has acquired such prominence. I would suggest, the politicisation of sentencing, the perceived or actual failure of rehabilitative sentences to deliver, and a decline in the ethical or religious value attached to forgiveness. The Labour Party, historically identified as the party of penal reform and rehabilitation, abdicated that role decades ago, keen to be seen as “tough on crime, tough on the causes of crime” (A Labour Party slogan from 1993). It quickly, and has consistently, proved, irrespective of party, easier to promise the former than to deliver the latter.
Deterrence
Next, deterrence. Those who commit a crime and fall to be sentenced have not been deterred. What is aimed at is the deterrence of others. The law-abiding public tends to believe deterrence works and increased sentences will deter more effectively. Both propositions are questionable. In 2003, when starting points for sentencing murder were introduced, the adult starting point, for murder by firearm, was 30 years. For murder by stabbing, the starting point was 15 years. In 2008, after Ben Kinsella’s murder, there was an understandable demand to address the disparity just referred to. A 25 years starting point was added, with respect to killings with a weapon taken to the scene, the government stating it believed that would have influence on deterrence. What happened? The answer is that the percentage of “sharp instrument” killings (the term used in the relevant table) remained virtually constant, 37.34% in 2010, 38.34% over the subsequent decade (Source, Worksheet 7: Number and percentage of offences currently recorded as homicide, by apparent method of killing and sex of victim, Homicide in England and Wales: Year Ending March 2021, Appendix Tables). Of course, the argument exists that but for the increase in the starting point such killings would have spiralled out of control, but does that argument convince? Now, after Ellie Gould’s murder, referred to below, there is a growing call to address, by increased sentences, the disparity between “weapon to the scene” and “weapon available at the scene” murders. Will that have any effect in reducing the number of such murders? I doubt it.
Public Protection
Next, public protection. It was the Criminal Justice Act 2003, which also brought in starting points for murder, that the sentence of Imprisonment for Public Protection was introduced. That sentence illustrates just how wrong legislative decisions on sentencing can be. The sentence is indefinite, with a minimum tariff specified before release on licence may be sought. Attempting to strike a balance between public protection and fairness to a defendant via an indefinite sentence, triggered by a mechanistic process involving reference to a very wide list of types of previous conviction, was to embark on a doomed undertaking. Judicial discretion as to the imposition of the sentence was very substantially excluded, and with it, personal judicial responsibility, and the contribution of judicial experience. Having been brought into force in 2005, the project began to unravel almost immediately. In 2008 the ‘trigger’ provision was amended, although, consistently with the usual rules, not retrospectively, so as to alter these provisions to prevent them operating, absurdly, in cases where the tariff would be less than two years. Imprisonment for Public Protection was then abolished, but again, consistently with the normal rules, not retrospectively, in 2012.
The malign legacy of Imprisonment for Public Protection continues. Lord Brown, a Supreme Court Justice between 2009 and 2012, has described the sentence in these terms as the “the greatest single stain on our criminal justice system”. I would, humbly, agree, although I would add, jointly with the miscarriage of justice cases of the 1970’s and 1980’s which inspired me to want to become a judge.
Hopefully, the House of Commons Justice Committee’s recommendations (28 September 2022) will be accepted, and the continuing nightmare of Imprisonment for Public Protection dealt with properly, although, the signs are not hopeful. The usual rules against legislating retrospectively are not apposite to deal with such a legislative error, as the responsible Home Secretary, Lord Blunkett has now recognised this to have been. So far, 74 of those serving this sentence have committed suicide.
Rehabilitation
I move on to rehabilitation. Successful rehabilitation is the Holy Grail of sentencing policy, but a shift towards an objective, more retributive approach makes it harder to achieve, and recidivism remains stubbornly high. Longer sentences and more crowded prisons hinder rehabilitation, as has long been recognised. If there is under investment, the problems are exacerbated.
Again, it is worth quoting a Conservative Home Secretary, Lord Brooke of Cumnor (formerly Sir Henry Brooke):
"It is believed, and I have no reason to doubt it, that few people have enough resolution to endure more than ten years’ confinement in normal prison conditions. The longer a man is kept in after that the less fit may he be ever to be released".
At present, we seek, rightly I think, to combine deterrence in the sentence of the court with efforts to develop a prison regime which will produce in a person, at the end of his term of imprisonment, fitness to live free. This has been possible hitherto because of the scarcity of very long terms of imprisonment. Last year, I inquired in the Home Office how many prisoners we had in prison who had actually been serving for more than ten years on end. The answer was that, apart from mental cases in Broadmoor, who are in a category by themselves, there were only six, and one or two of those were there because they were on the mental borderline, and it seemed that they could hardly safely be let out.’ (Hansard 21 December 1964, Columns 911-912)
Prison conditions have improved considerably, although not by as much as those without first-hand knowledge of those conditions today might think. However human beings have not changed and the adverse effects of long-term incarceration itself remain the greatest threats to rehabilitation and reintegration into society.
The treatment of young offenders was an area where rehabilitation was pre-eminent. From 2003, for those under 18, a 12 year starting point applied to all convicted of murder. By amendment, in 2022, a sliding scale of starting points for young offenders aged between 10 and 17 replaced that. That scale substantially increased sentences at the middle and upper end of the age range. Our old friend, the law of unintended consequences, is likely to ensure that this change will result in longer sentences for younger offenders generally. This change in the law was, like so many, prompted by a media campaign and a high profile case, the murder of Ellie Gould. Sadly, the target was the wrong one. If the sentence which was imposed in this case was too low, then the cause was the substantial distinction in starting point between murder by stabbing with a knife taken to the scene, 25 years, and murder by stabbing with a knife which was available at the scene, 15 years. When the family campaigning for a change in the law in this case realised that the proposed change in young offender starting points would have no effect upon sentence in a case like the one which had affected them so terribly, they dissociated themselves from the proposal. The introducer of the provision in parliament did not mention deterrence at all. The justifications offered were an increase in predictability and transparency and a reduced dependence on judicial discretion. There was no significant parliamentary opposition to this change in the law. It will indeed reduce judicial discretion, not only for young offenders, but for young adults who, conventionally, were able to benefit from mitigation on the basis that it was appropriate to recognise that a defendant was only marginally over the threshold and into a much more severe sentencing regime. That argument has now gone in murder cases, and I would expect it gradually to lose its force elsewhere, such is the anticipatable effect of a change at the top of the penological scale.
There are other aspects of modern sentencing which cause me concern. For example, the failure to address femicide and the prevalence of offending against women adequately, and the failure to reduce the over sentencing of secondary parties in relation to serious crimes. I fear, from my own experience, that combined with the high starting points applicable in such cases, this phenomenon, along with issues about racial discrimination, robs the criminal justice system of legitimacy in the communities most affected by gang violence. That reinforces the code of silence that makes the detection of perpetrators so difficult. In its end result such extremely high sentences may therefore reduce rather than enhance the hoped for general deterrent effect.
The broadcasting of sentencing defendants has now begun. Here too I am worried. Is there a risk that this will, because of the choice of cases to be broadcast, increase the demonisation of defendants and fuel sentence inflation, with no practical benefit? I am all in favour of making the criminal justice system and the sentencing process more transparent, but the selective exercise evidenced so far seems to me to be the wrong way forward – and as the reader will by now realise, I am haunted by the law of unintended consequences!
It was suggested to me that the elimination of judicial discretion in sentencing was necessary because the judiciary was drawn from so limited a background that a subjective element had to be taken out of the process. I wasn’t from that stereotypical background and nor were many of my colleagues and empathy came from more than background. If that was a driving force then I am worried that the medicine may have been as or more damaging than the disease. And for what it is worth, my experience convinces me that higher detection rates and speedy, fair, and more local justice does more than constantly increasing sentences to make society safer.
His Honour Nicholas Cooke KC
His Honour Nicholas Cooke KC was called to the Bar in 1977 and took silk in 1998. He was appointed the Recorder of Cardiff and a Senior Circuit Judge in 2007 and was an Additional Judge at the Central Criminal Court between 2012 and 2019. He also sat as a Deputy High Court Judge of the Queen’s Bench Division and a Judge of the Court of Appeal (Criminal Division). He is presently reading for a D.Phil. at Worcester College, Oxford University.
