As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.
The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.
So why am I concerned?
There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.
But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.
The problem is that I don’t think it will do that.
The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.
However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.
There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.
And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.
And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles  EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:
- There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly.
- The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that.
- On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it.
- The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
- Findings of fact should be announced without, in most cases, supporting narrative.
- If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course.
- Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.
For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.
Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?
And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.
We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.
A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.