What’s Gone Wrong with Sentencing?

Sentencing Council guidelines mean that habitual offenders are consistently released. Who's to blame?

Baroness Carr, Lady Chief Justice, who has criticised drawing “matters of judicial responsibility into the political arena”

You be the Judge

A 17-year-old is walking to college one morning when he sees a police car. As he runs from it, a knife falls from his pocket. He refuses to cooperate with the police, and it is discovered upon arrest that he is currently serving a community order for the same offence. 

You are the magistrate. Do you give him:

1. A youth rehabilitation order for 12 months

2. A youth rehabilitation order for 24 months

3. A 4-month detention and training order

4. A 6-month detention and training order

The above scenario is not from a newspaper, but comes from the Sentencing Council’s ‘You be the Judge’ video series, designed to inform the public about the manner in which our courts determine the sentences applied to different convictions. If you fail to select the correct answer (C), then the video will invite you to consider what aggravating or mitigating factors you might have missed. There is no mechanism to suggest that a penalty more severe than four months imprisonment ought to be imposed (in fact, the video cheerily states that the perpetrator will, in practice, serve only two). It does not seem to occur to the Sentencing Council that there might be an argument for a sentence longer than six months.

Other scenarios include a habitual, violent, criminal, spitting on a nurse in the course of her duties. This perpetrator has six previous convictions, including three for common assault and two for drunk driving. The Sentencing Council video explains that the sentence would ordinarily be three months incarceration; the aggravating factors (screaming “I am infected” into her face) extend this to six months, but the perpetrator’s decision to plead guilty reduced it to four months (which will, again, be halved). Whilst these videos are intended to educate the public on the judicial process, to the uninitiated outsider, the lesson appears to be quite different: violent, habitual offenders are intentionally given incredibly light sentences.

Sentencing Council’s ‘You be the Judge’: Possession of a bladed article

Such sentences are not limited to hypothetical scenarios. In 2019, Michael Murray was convicted for a racially aggravated assault in which he attacked his victim with a bag of bricks, leaving them with permanent brain damage and requiring round-the-clock care. Murray received a suspended sentence, being told this was his “last and final chance”. He has since amassed 13 previous convictions for 26 offences, involving violence, knives, drugs, and destruction of property. Murray received another suspended sentence order (SSO) in April 2024 for “six offences relating to drugs, violence and driving matters”. During the term of this suspended sentence he found himself again in court in December 2024 for a series of offences that included glassing a customer in a pub, threatening a neighbour, and vandalising the home he shares with his grandparents. He received another suspended sentence, with the judge expressing the hope that he “will become a useful member of the community.” 

The judiciary’s unwillingness to incarcerate dangerous criminals puts the rest of us at risk. Since 2010, nearly 700 murders and 1,000 rapes and serious sexual assaults have been committed by prisoners on probation. When Jordan Sweeney hunted and killed law student Zara Aleena in 2022, he had already had 28 convictions for 69 separate offences, including robbery, burglary, theft, and assaults on both the public and police. In 2022, Joshua Carney was released from prison on licence despite 47 previous convictions. Five days later, he raped a mother and her daughter, forcing them both to watch the brutalisation of the other. He will be eligible for parole within a decade. Theodore Johnson killed his first wife in 1981, was released from prison three years later and murdered a second partner in 1993 before being released again to murder a third woman in 2016. 

How has this been allowed to happen? Each example could have been avoided if not for the widespread belief in the judiciary that the primary purpose of sentencing is to rehabilitate the perpetrator rather than protect the public.

The Sentencing Council

The Sentencing Council is the body responsible for issuing sentencing guidelines in the UK. It is an arms-length body of the MOJ, operating as a 14-person team of both Judicial and non-Judicial members. Appointments are made by the Lord Chief Justice, subject to approval by the Lord Chancellor. 

The mindset which underlies the Sentencing Council can be easily gauged by Sentencing: New Trajectories in Law, published in 2021 by Dr Elaine Freer, who was invited to be a non-judicial member of the Sentencing Council the following year. She uses cases with which she has been involved to illustrate the different ways in which Judges seek to balance the five aims of sentencing, as defined in S57(2) of the Sentencing Act 2020. These are:

1. The punishment of offenders

2. The reduction of crime 

3. The reform and rehabilitation of offenders

4. The protection of the public

5. The making of reparation by offenders to persons affected by their offences

Much like her peers, she is of the firm belief that the “the criminal justice system has adopted an overly simplistic obsession with punishment, driven by politicians’ misunderstanding of what the public actually want.” 

Yet what evidence of this excessively punitive state does the Sentencing Council member provide in her book?

We meet a 19-year old being sentenced for attempted robbery. They were on drugs, and assaulted the victim during the course of the attempted robbery. Already a habitual criminal, they were kept out of prison by a suspended sentence. Another defendant was convicted for possession of indecent images of prepubescent children. The judge was particularly appalled that the offender didn’t seem to register that the children were victims: nevertheless, they handed down a suspended sentence. In one of the most gratuitous cases, a serial criminal violently assaulted his sister. Unbelievably, the judge decided to suspend the sentence precisely because the perpetrator had previous convictions, including ones of sufficient severity to merit incarceration: “We are going to step back from custody” he told the violent recidivist. “You’ve had small stretches inside and they haven’t worked.” This specific case is cited by a separate Cambridge academic as positive evidence of “the realistic magistrates who decided not send a man back to prison, for the good reason that it didn’t work last time.” 

Rather than “an overly simplistic obsession with punishment”, our criminal justice system has established the opposite pattern: habitual criminality being dealt with through a combination of community orders, suspended sentences, fines, and judicial pleadings, before token custodial sentences are eventually applied - if at all. One will quite often read sentencing remarks from judges castigating unrepentant perpetrators of terrible crimes, warning them that they will face severe justice, before doling out a community order or suspended sentence. Judges are not always to blame for this - they are bound by the formal instructions of the Sentencing Act 2020. Section 230(2) is summarised by Dr Elaine Freer as an instruction that “any court … must only use custody of any length as a last resort”. ¹

In consequence, by the time a criminal is sent to prison they are already an established recidivist.

Where has crime gone wrong?

Roy Jenkins: author of the 1967 Criminal Justice Act, whose reforms as Home Secretary were intended to usher in “a civilised society”

This approach to criminality has been consciously developed for over half a century. Roy Jenkins was the first to introduce suspended sentences in 1967, and community sentences were introduced by Reggie Maudling in 1972. By 1991, the majority of sentences were automatically halved thanks to Kenneth Baker’s Criminal Justice Act. 

Despite a mild toughening of sentences in the past decade, the basic pattern of criminality has been the same: criminals will be subject to a series of non-custodial sentences until the quantity or severity of their offences becomes so great that a ‘last resort’ custodial sentence is imposed. By this point it is almost too late - the character of the perpetrator is all but fixed. 

Vanitas vanitatum

The sentence meted out to a convicted criminal at the end of the trial is the final ‘product’ of our criminal justice system. If this product is insufficient, then the efforts of the whole operation are invalidated. Tens of billions of pounds, and the effort of hundreds of thousands of employees, are all wasted if the end result is an offender receiving an ineffectual sentence.

Around 150,000 people are employed in police forces across the UK, at a cost of over £27 billion a year - a figure which doesn’t include the 77,000 employees at the Ministry of Justice (over £13 billion a year) or 19,000 employees in HMCTS (£2 billion a year). This is all wasted effort and money if sentencing guidelines mean that we are releasing violent and habitual offenders after token sentences. Every police officer who investigates a crime, every CPS prosecutor who prepares a case, every judge who oversees a trial (plus the thousands of catering staff, payroll officers, HR consultants, and administrators involved in the day-to-day running of the justice system) are wasting their time - and billions of pounds of government funding - because the end result is insufficient. We could double the manpower and treble the funding and it wouldn’t make a jot of difference. Unless we get sentencing right, all else is vanity.

What Next?

It would be easy to blame the Sentencing Council for our woes, but in practice they have little room to manoeuvre.  Their primary remit is to revise the sentencing guidelines, ensuring that they are internally consistent, that the material on which it is based is up to date, and that sentences are applied equally throughout the country and to different demographics. The nature of the organisation is such that any radical review of the purposes, methods, or severity of our penal system would not be raised. Nevertheless, there is little evidence that they are frustrated by the current state of our law: on the contrary, the main frustration seems to be with politicians who occasionally try to strengthen it. 

So who is responsible for changing our sentencing guidelines? Apparently no-one. Politicians have passed responsibility for this to the Judiciary; the Judiciary is bound by the guidelines set out by the Sentencing Council; and the Sentencing Council’s remit is not wide enough for a thorough reform of the system if they even wished to. 

Those fundamentally responsible for our sentencing calamity have been successive governments who have diluted criminal sentencing over decades, and then devolved responsibility for the technical maintenance of this system to an arms-length body. It is another symptom of the political architecture of this country, in which genuine responsibility for governing is avoided by our politicians, and farmed out elsewhere.

Jurisdiction for sentencing guidelines must be taken under direct ministerial control. A commission ought to be set up for the express purpose of revising the entirety of our sentencing guidelines to offer a framework for the Judiciary in ensuring punishments are effective. The appointees of this commission need to be explicitly in favour of harsher sentencing - the purpose of the Commission should not be to discuss the principle but to deliver the detailed change. Primary legislation needs to be amended to ensure that the maximum proportion of a sentence which can be discounted for good behaviour in custody is 10%, and that attaining this is not a default granted to all prisoners simply for the absence of poor behaviour.

Only once these key sentencing reforms have been implemented can a vast host of additional - and radical - changes be delivered. Major priorities ought to be the reform of prisons to be austere and retributive; the return to preventative foot patrols (‘beat’ policing); the removal of the codes of procedure embodied in domestic legislation such as the Police and Criminal Evidence Act 1984 and the Policing and Crime Act 2017; withdrawal from international conventions such as the ECHR which inhibit our ability to prosecute crime; and revisions of Court procedure.  Nevertheless, these reforms will remain as useless as our current approach if the end product of our justice system - the sentence - is ineffective.

1. Sentencing: New Trajectories in Law’, 2021, p. 9. The formal wording of s.230(2) SA 20 is:“The court must not pass a custodial sentence unless it is of the opinion that—(a) the offence, or (b) the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”