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January 9, 2016

Are judges too soft?

This week judges were again under fire for being too soft.  The Sun described judges whose sentences had been increased by the Court of Appeal as weak and named the “weakest”. Yet no newspaper ever seems to name and shame those judges whose sentences are repeatedly reduced on appeal, because they were too punitive.  The increase in the number of sentences referred to the Attorney General as too lenient is interesting, but it is definitely not evidence that judges are getting softer.  It may be just that more people – prosecutors and victims – know about the process.  Still only 166 offenders had their sentences increased 2013-14, whereas thousands of convictions are overturned and sentences reduced on appeal every year.

The real story is that judges seem to be getting less soft. As the Prison Reform Trust points out: “during a period when crime has fallen sharply, average sentence length has increased by a third”.  Our prison population has doubled in the last fifteen years and one of the reasons has been sentence inflation – judges giving more punitive sentences for the same crimes, without any change in the law.  Judges have always had great latitude to sentence more or less severely – sentencing guidelines followed to the letter still leave a lot of room for discretion.  So sentencing can vary over time and according to area.  When I worked on reducing child imprisonment for the Prison Reform Trust, we identified that children were far more likely to be sentenced to imprisonment in some areas than in others – Merthyr Tydfil was the most punitive, while Newcastle was one of the least.  There are sentencing cultures in different areas and post-code sentencing happens.  The problem is that in adult sentencing, the culture has gone one way – the trend is for longer sentences.  This is partly influenced by messages from government, such as the positive coverage of increased sentence lengths for sex offenders, “an increase of 4.5 months in the past year alone”.  Adult sentencing is also influenced by public attitudes and by the pressure to listen to victims.

I’m not sure the Sentencing Council has helped to curb sentence inflation.  I don’t know much about the detail of recent guidelines, but the “spin” has certainly been that they are more victim focussed and thus more punitive.

Yet longer sentences achieve little – there is no evidence that a fifteen year sentence is any more effective than a ten year one.  If we want to reduce the prison population we need to curb sentence inflation. Given public and tabloid views, this will be incredibly difficult to do.  But a change in tone and language from both the government and the Sentencing Council would make a difference.  Both could help victims understand that longer sentences are not necessarily better, and that there are are others ways, like restorative justice, for offenders to make amends.  The most effective way of reducing sentences is to change primary legislation, but it takes a very brave Lord Chancellor to do this.