Abstract
This work does not seek to add to the voluminous literature on what the purpose of sentencing should be, although the author does not shy away from dismissing spurious claims that punishment can achieve particular outcomes, or, more commonly, that these aims cannot be realised in an under-resourced criminal justice system. Instead, through a careful analysis of cases she was involved in as a practising barrister, Freer assesses how sentencers apply the extensive list of sentencing aims provided in s.57(2) of the Sentencing Act 2020: the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparations by offenders to persons affected by their offences. Each aim forms the basis of a chapter. Although this is not a treatise on penal theory, Freer concludes that ‘the non-hierarchical nature of s.57 is actually a key strength of sentencing legislation, by allowing Judges, even within legislation and Guidelines, to partly tailor a sentence to the individual’ (p. 20). It was striking throughout how willing sentencers were to depart from sentencing guidelines, presumably on the basis that it would be ‘contrary to the interests of justice’ were they to apply them (s.59(1) Sentencing Act 2020). In contrast, the finding that sentencers prioritise a given aim in individual cases is not a surprise, but, what is fascinating in this study is the factors that influenced such decisions.
The book’s first obvious strength is that it studies cases from the magistrates’ court and the Crown Court as opposed to unrepresentative appellate decisions from the Court of Appeal. Here, we learn the fate of speeders, drink-drivers, and shoplifters – the aims in the Sentencing Act 2020 are every bit as applicable to those individuals as they are to the robbers and the burglars whose cases are also considered. This serves as a valuable reminder that sentencing those guilty of minor offences is the daily fare of criminal courts. Freer also makes the important point that it is often less serious cases ‘that pose a greater challenge to a sentencer in pinpointing a just and proportionate sentence than those cases which are so serious that the only possible sentence is lengthy custody’ (p. 8). This leads to the second distinctive contribution. Her personal involvement in the cases allows Freer to flesh out the offenders’ back stories. Many are complex. They are often, as Nicola Padfield comments in her Foreword, deeply depressing. Nevertheless, sentencers are faced with the invidious task of determining appropriate responses, and the expectation is that an appropriate response equates to a punitive one.
A short review cannot do justice to the case studies chosen or the conclusions drawn, so I will outline some findings from two chapters by way of illustration. The commentary on general deterrence found in Chapter 2 was especially insightful. Freer poses the seemingly obvious question of how punishments can be conveyed to the public if reporters are seldom present in court? The media are likely only to report sentences that seem absurdly punitive or (more commonly) excessively lenient. Interesting questions are also asked about statutory minima – why is there a particular need to deter repeat Class A drug dealers, burglars, and knife-carriers? After attempting in vain to find a rationale, such as the offender was not deterred or rehabilitated by the first sentence, she rightly concludes that ‘[this] does not, however, give a sound theoretical underpinning for which offences have mandatory minima, and neither is there any clarity as to why mandatory minima may be more likely to deter in relation to those offences than others’ (p. 56). Diplomatically put. Rehabilitation, the focus of Chapter 3, also provided several meaningful case studies. Here, I was struck by how sentencers dealt with individuals – such as ML whose case is discussed on p. 72 – who had recognised the need to address addiction or who had taken active steps to secure and sustain employment. The harm that a custodial sentence would cause in such cases was often noted. Affording some offenders the time and opportunity to demonstrate that they had taken proactive measures to address their offending, allowed judges to pass non-custodial sentences in some instances.
Most of the cases, understandably, were heard prior to the pandemic which restricted court activity severely. However, a few were heard during the pandemic when prisons were in lockdown. It would have been interesting to have known whether sentencers took this into account when applying the generic aims. Did they recognise, for example, that many courses in prisons would be suspended further limiting the opportunity for rehabilitation? Spending up to 23 hours a day confined to a cell also makes the experience of serving a prison term more punitive. Freer cites a pre-pandemic inspection report into HMP Nottingham (HMIP, 2020) as an exemplar of the inadequacy of prison conditions (pp. 23–25). The thematic review What Happens to Prisoners During a Pandemic? (HMIP, 2021) paints an even grimmer picture. Did sentencers heed the comments made by the Lord Chief Justice in R v Manning [2020] EWCA Crim 592 at para 41: ‘Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be’. One can only speculate on how changes to the penal system affected sentence-decision making and, in the context of this analysis, the application of s.57(2) of the Sentencing Act 2020.
This is a rich and rewarding book. It is also deeply humane. In part motivated by one harrowing case (p. 37), the harsh reality behind much criminality is exposed, as is the futility of the way in which society often responds. The facts of the case explain Freer’s frustration. Her client, OT, was of previous good character. However, he had drunk alcohol with friends, which reacted strongly with his medication for a serious mental health condition. Following an argument on the train home, OT had broken a fellow passenger’s nose who had attempted to diffuse the situation. OT remembered little and was distressed by the event. He offered a full apology and pleaded guilty at his first appearance at the magistrates’ court. He was ordered to pay £1,500 compensation to the victim and fined £300. Leaving court, the victim’s wife informed OT that her husband would have ‘strenuously opposed’ the police charging OT had he known everything that had been advanced in mitigation. While the victim had concerns that OT posed a danger to the public, what he wanted was an apology. Even though the punishment imposed appears lenient given the injury, the victim and his wife still felt it inappropriate. They did not seek punishment (or presumably monetary compensation) but an alternative restorative remedy. Where does the fault lie? To Freer, blame seldom attaches to judges – typically they are presented as well-intentioned but severely restricted in what they can do – but on systemic failings in the criminal justice system and on a society that relies on it uncritically and readily.