I don’t know what the government — or John Reid in particular — can have been thinking of with the now notorious suggestion to judges that they should use non-custodial sentences whenever possible; it does no more than restate sentencing policy and the media storm was an obvious consequence.
Some of the coverage is, in fact, odd, if not downright wrong. The case of Derek Williams, who was given a six months sentence, suspended for two years, for downloading child pornography and who was told that one reason he’d escaped an immediate custodial sentence was that the learned judge had to ‘bear in mind’ the Home Secretary’s circular is a case in point. The judge will also have said in his sentencing remarks that he had ‘to bear in mind’ the defendant’s guilty plea, pre-sentence report (assuming there was one), the quantity and nature of the images downloaded, his previous criminal record (two very old assaults) and the likelihood of his re-offending, but these comments don’t seem to have received equal prominence.
Certainly, it’s by no means clear that Mr Williams would otherwise have received an immediate custodial sentence. We don’t, for example, know the exact nature of the images he downloaded; there’s an established classification system and tariff in these cases and, given the number of images (200) to which he pleaded guilty, it sounds to me very much as if it was a one-off download of a zipped folder, which is how these things are frequently distributed by commercial websites. The defendants don’t really know exactly what they’re downloading — they know it’s child pornography they’ve bought, obviously — and in my experience a suspended sentence wouldn’t be particularly unusual for someone who’d been found once to have downloaded a collection comprising mostly category 1 (images depicting erotic posing with no sexual activity) with some category 2 (sexual activity between children, or solo masturbation by a child) material. The guy would be fortunate to escape immediate custody, certainly, but it wouldn’t be especially noteworthy.
Indeed, it might be argued that the suspended sentence is often a more sensible disposition in these lower sentencing bracket cases. If he’d have received an immediate custodial sentence of six months, he’d have been out in three months and under the supervision of probation service for a further three. As it is, he’ll be under a supervision order for (I would imagine, but it doesn’t seem to have been reported) 12 months, during which time he’ll have to attend various courses designed to address his offending behaviour. If he doesn’t, then he goes off to prison. And, of course, if he gets into any more trouble during the next two years, this sentence will be activated on top of anything else he receives. It’s arguably as effective, if not more so, than locking him up for three months and leaving him completely unsupervised after he’s been out for another three.
The case of Keith Morris, whom the BBC thinks was ‘released’, is even stranger. He pleaded guilty to sex offences against teenagers and was released on bail pending a pre-sentence report, which the judge (in effect) has to order because the Criminal Justice Act 2003 requires him to consider an indefinite sentence for public protection. I say it’s strange because certainly in the Crown Courts with which I’m familiar (and it’s a different part of the country, so the practice may be different in Exeter) it would be by no means remarkable for someone facing an inevitable custodial sentence to have his bail extended pending a pre-sentence report after a guilty plea. Indeed, as Judge Bray (of whom more in a moment) has been known to point out — I’ve been in court when he’s said it, on more than one occasion — one of the many idiocies of current sentencing law is that the judge is frequently required by one act to presume the defendant is a dangerous offender and simultaneously presume he’s entitled to bail while a report into his actual dangerousness is prepared.
Clearly, as I say, the practice is different in Exeter; Mr Morris hasn’t really gained a great deal, since he’s going to go to prison in two or three weeks’ time rather than immediately, overcrowded prisons or not. The ‘rather unusual circumstances’ to Judge Cottle referred, which led to his extending bail rather than remanding Morris in custody while a report was prepared, must, I think, be that overcrowding at the local prison would mean that the probation service would have difficulty preparing a report had he been remanded in custody — if, for example, the sex offenders’ wing in Exeter is full and he’d have to be imprisoned in another part of the country, then I can quite see the Probation Service having difficulty preparing a report on him in time for the sentencing hearing.
I mentioned dear old Judge Bray, who told Northampton Crown Court that
“I am well aware that there is overcrowding in the prison and detention centres. That is not going to prevent me from passing proper sentences in each case,” he said.”The reason our prisons are full to overcrowding, and have been for years, is because judges can no longer pass deterrent sentences.”
The news story would be, I think, as anyone who’s familiar with Judge Bray’s practice when making his sentencing remarks would confirm, if he hadn’t taken the opportunity to complain both about politicians trying to meddle in sentencing practice or about the Court of Appeal — with whom he’s had several run-ins — not letting him send people to prison for as long as he’d like.
For what it’s worth, I’ve attended several sentencing hearings over the last couple of days, and the Home Secretary’s letter has only been mentioned once. That was by one rather desperate defence council who was promptly told by the learned judge, in rather more restrained terms than His Honour Judge Bray would have used, to be sure, to stop wasting everyone’s time since the defendant would have to go into immediate custody under current Court of Appeal guidelines and the only question was for how long.
Interestingly, the guideline sentence for this chap’s offence — a passport offence — has recently been increased ‘because of public concern,’ with the result that the chap is now going to spend some two or three months longer in a British prison before being deported to Pakistan (assuming the Home Office don’t forget, of course) than would he had he been convicted six months ago. Quite what good his occupying a prison place for the extra couple of months will do, I’m not sure, but at least public concern has been allayed.
All the other cases that came up for sentence got pretty much what one would have expected anyway. A couple of custodial sentences were suspended, but given the circumstances of the offences that was perfectly reasonable. One chap, in fact, received a suspended sentence because the length of time he’d spent on remand awaiting trial and then sentence meant that, had he been given a suitable immediate custodial sentence, he’d have had to be released within a week or so anyway; the suspended sentence at least means he’ll also have to do 200 hours unpaid community work on top of it.
Meanwhile, The Magistrate’s Blog provides an excellent example of how inappropriate ASBOs help contribute to the crisis in British prisons. Depressingly, responding to the resignation of the head of the Youth Justice Board of England and Wales, Rod Morgan, because of the effects over-crowding is having on young offenders, a Home Office spokeswoman responded to his complaint that
“We have tonight lots of people in police cells because there is no space for them in custody and that’s true for children and young people also.”I regard a 26% increase in the number of children and young people that are being drawn into the system in the past three years as swamping.”
“We remain unapologetic about the need to tackle anti-social behaviour by anyone, regardless of their age.”
Quite possibly so, but how about an apology for tackling it so badly?