Court in the act


Rosser4x3.jpgRichard Rosser on the mixed messaging behing Grayling's community sentencing plans

Through amendments to its Crime and Courts Bill, the government has finally unveiled proposals for “tougher” community sentences. These proposals have been delayed even longer than anticipated, following Ken Clarke’s replacement as Justice Secretary by Chris Grayling.

What do the proposals add up to? Put simply, that depends on how much freedom the Courts are given to decide how to interpret them, should they become law. Ministers are seeking to make it mandatory for a Court to impose at least one punitive element, or a fine, or both, when sentencing an offender to a community penalty. A punitive element would be regarded, for example, as unpaid work, or electronic tagging and a curfew.

Having made it mandatory in one amendment to the Bill, the government in their next amendment say the first one does not apply where there are ‘exceptional circumstances’ relating to the offence or to the offender, which would make it ‘unjust’ to impose a community order with a punitive element or a fine. But it seems that guidance on such circumstances will only be given to the probation service (which draws up reports for the Courts with sentencing recommendations) on those being considered for a community order.

While Ministers say they do not want to tie the hands of the Courts, they clearly want to give the appearance of telling them they have often got it wrong on sentencing, as well as how to get it right in future.

Currently, some two thirds of community sentences provide for what is considered to be a punitive element. The remaining third provide for measures designed to help rehabilitate an offender or for supervision by the probation service. That’s why the government is proposing its mandatory requirement (caveated as it is) on the Courts.

Yet most surveys show the main thing most victims want is an assurance that action will be taken to minimise re-offending, and on that score the latest proposals contain very little. Yes there are plans to extend restorative justice, but this is dependent on the victim and offender agreeing to such a step – something that may or may not lead to a lesser penalty being imposed by the Court.

The Lords debates this week provide an opportunity to determine Ministers’ real intentions. Is it to impose “tougher” sentencing on the Courts for community orders, with the mandatory requirement on punishment and nothing said on rehabilitation? Or is it in fact a mere act, designed to give an impression to Tory right wingers and their allies in the media before leaving it to the Courts to decide the appropriate balance, as is the case now?

Lord Richard Rosser is a frontbench Labour Peer in the House of Lords

Published 30th October 2012


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