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January 6, 2017

Does it matter whether judges know the outcome of their decisions?

When I first found out that magistrates do not find out either that their decisions have been appealed, or whether their decision has been overturned, I couldn’t quite believe it (in most cases magistrates are not told if their decision re conviction/sentence has been appealed).  What is the point in “mistakes” being corrected, if those who made the “mistake” have no means of learning from it?  A new book “Transforming Summary Justice” also makes this point.   A magistrate who worked as an IT specialist was shocked: “we are making decisions on whether people are guilty or innocent, we are making decisions on how to sentence people and also we are making decisions on bail which are often the hardest decisions ….and you have no feedback whatsoever about whether you made the [right] decision”. While the rest of the public sector has recognised the role of feedback and understanding outcomes in improving practice, justice has stood still, or even regressed.

Most decisions about whether to remand someone are made quickly (one research study found “the average time taken in the 26 cases in which the prosecutor applied for pretrial detention was 3.5 minutes”) yet two thirds of those remanded in custody in magistrates courts (and not referred up to the Crown Court) do not go on to get a prison sentence.  It appears that judges and magistrates may be over cautious in their decision making.  But why on earth should judges become more confident about using bail if they don’t know the outcome of their decision?  Currently, they have to decide on remand on the basis of the (frequently very little) information presented to them about the risk posed by the defendant.

Its not just the individual judge who lacks feedback about outcomes, the whole system is based on a lack of evidence. Rob Allen’s recent report for Transform Justice on the “Sentencing Council for England and Wales – brake or accelerator on the use of prison”, identifies that sentencing guidelines are often developed in the absence of data on the effectiveness of sentences.  Lord Chancellor, Jack Straw told parliament in 2009 that “ensuring the effectiveness of sentencing will be an important role of the Sentencing Council”. There is a statutory requirement for the Council to consider the cost of different sentences, and their relative effectiveness in preventing re-offending, but it has not really done this.  It does estimate the effect of new guidelines on the demand for prison places, but this is different from estimating the effect of the sentence. This is partly because the data is sometimes not available, partly because broader research is not judged relevant.  Proposed new guidelines on reduction in sentence for a guilty plea were developed in the absence of any data on what proportion of defendants plead guilty in the magistrates’ courts. Given that most cases are heard in the magistrates’ court, this seems a big gap.  New proposals on sentencing knife crime cite no evidence or research on the effectiveness of different sentences or approaches in deterring or reducing knife crime.  So we have sentencing guidelines which are not based on outcomes.

When judges and magistrates do not know the outcomes of their individual decisions, do not receive training in the effectiveness of different sentences, and have to follow guidelines which are based on an absence of data, no wonder are prisons are full and re-offending levels are high.