Paul Firth: Why the jury is still out on cutting sentences and costs

What I did know about sentencing came as a result of spending over 30 years in courtrooms. Some of the time, I gained an extra insight by listening to the conversations between defendants and their families in the waiting areas. By far the most frequent topic discussed was “Am I going down?” The answer, of course, varied from case to case, although most lawyers erred on the pessimistic side. That way any non-custodial sentence was a victory for the advocate’s skill!

We are now faced with opposing contributions to what might, with enough charity, be called the sentencing debate. It is nearer to a political argument, based on a mixture of the highly personalised opinions of a small number of politicians and the desire to cut public spending. There is a marked absence of principle in this debate.

There is also a great deal of confusion about how sentences are passed and, in particular, about how prison sentences are reduced and why. Let me try to clarify at least that point.

Those sentenced to four years or less are already automatically released when they have served half of the sentence the judge announces. Non-violent offenders may be released even before they reach the halfway point, provided they agree to wear a tag. Look no further for examples than certain dishonest Members of Parliament.

But the current issue is how far the original sentence should be reduced by reason of the defendant’s guilty plea. The law already allows for a reduction of up to one third for an early plea and one tenth for a guilty plea on the day of the trial.

So, if a judge decides that the appropriate sentence is three years, he will actually pass a sentence of two years if the defendant pleaded guilty at the first opportunity. The defendant would then serve no more than half of the two years.

A reduction for a guilty plea is most easily justified when it saves the victim going through months of agonies waiting to give evidence.

Gabrielle Browne, the rape victim who confronted Kenneth Clarke on the radio, had to wait until she was at court before hearing her attacker admit the offence. It is right that the system should do everything reasonable to prevent this additional trauma, especially for victims of violent offences.

But the question is how far can victims be protected. Experience tells me that virtually all lawyers advise their client at a very early stage about reductions for plea.

If a reduction of one third is not enough, will a 50 per cent reduction work? Nobody knows the answer, because no country has such a reduction.

Let me add another example to suggest why an even greater reduction would have a minimal effect on the rate of guilty pleas. Suppose the appropriate sentence for a given offence is six years.

With the current maximum reduction the judge would impose four years, of which the defendant would serve two. With a 50 per cent reduction, the six years would be reduced to three, of which the defendant would serve eighteen months, some six months less than currently. How much of an incentive will that really be? How many victims will be saved?

There is no such thing as a sentencing regime that works for every case. There will always be a proportion of community sentences that are not complied with – where the offender commits more offences when he should have been on his drugs treatment course, and where the result is the sentence of imprisonment that might have been passed in the first instance, if the judge had not given rehabilitation a chance.

Equally, there will always be the repeat offenders who will return to crime within days of release from prison, but who never commit offences serious enough to merit very long sentences. “The clang of the prison gates”, so effective the first time, will not deter the old lag. But that is not a reason for not imprisoning those who will not change their ways. And that is where the argument has been turned on its head. While it is obviously right that any sentencing regime should include, as one of its objectives, the prevention of further offences, those who put that at the forefront of any possible reforms, almost to the exclusion of other necessary aims, ignore two inescapable factors.

The first is that some offenders will not participate in the programmes that might reform them. The ultimate sanction of a prison sentence, short or long, has to be available for such offenders.

The second problem is that, for a range of possible reasons, there will always be situations where the primary and perfectly legitimate objective in passing a sentence will be to punish.

If the next set of proposed reforms to sentencing are shelved for a while, might it just be that, given the complexities of the task, the current regime and its underlying principles work well enough?

Paul Firth is a retired district judge who used to sit in Yorkshire. He is also Honorary Fellow in Criminal Justice at the University of Salford.