How much punishment?

How fair and effective is it perceived to be? How well does sentencing meet the aspirations of the public?

But, in a democracy, the formation of opinion should be supported by access to, and participation in, informed and deliberative discussions. In that context, the recent publication of a complex online survey commissioned by the Sentencing Council for England and Wales gains resonance, and therefore its main implications, rather than all its minutiae, need to be drawn out.

Fair and effective?

The first set of survey questions explores perceptions of the fairness and effectiveness of the criminal justice system (CJS) as a whole, compared with the similar questions in the Crime Survey for England and Wales.

So far, this is familiar, and not unpredictable, territory: half of those surveyed reported that they were confident the CJS is effective, while the same proportion indicated that they were confident it is fair.

The analysis then proceeds to break down the distribution of the responses according to various factors – demographic status, extent and type of contact with the criminal justice system, and so on.

It is worth noting that women and Black adults showed somewhat lower levels of confidence in its fairness than others, findings which echo parts of our report on UK criminal justice systems. However, the fact that the questions are at a high level of generality makes interpretation very challenging.

The details

The research takes an interesting turn when exploring reactions to cases. When detailed case studies of sentencing using the Council’s guidelines were presented, respondents were asked to rate the toughness or lenience of the sentences. It was found that the presentation of details tended to increase the lenience of their judgements.

Several years ago, we analysed the results of the public information project, Local Crime: Community Sentence, sponsored by the Probation Boards’ Association and the Magistrates’ Association. It asked a range of public audiences to consider fictional cases presented by a probation officer and a magistrate. As in the present Council survey, we found that providing case details made a difference to views about sentencing.

According to the present survey, views on the existence of sentencing guidelines were generally positive. A portion of the sample were given more information about sentencing guidelines but their responses appeared to indicate little increase in confidence as a result.

The primacy of punishment

What needs to be understood is how the Sentencing Council has framed the research commission. While apparently normal, the construction of the main sentencing questions in terms of lenience, on reflection, seems slightly peculiar and restricted: it assumes that the overwhelming purpose of sentencing is to punish.

Yet, according to the law, the purposes of sentencing are multiple: the reduction of crime; the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences.

We might also add other criteria, such as effects on family life, fairness, and proportionality to the official list. Where have those other purposes gone?

There is an intriguing set of questions about the considerations that are, and should be, taken into account in sentencing. Opinions about what should be taken into account closely matched those that were regarded as being actually taken into account, such as harm to the victim.

There is scope for more research on what factors matter and what should be done to ensure they are fully recognised.

Brand image

Media consumption was another topic of questions, in order to identify particular vehicles, whether online, on TV or in newspapers, that might affect confidence among audiences with lower levels of confidence. The approach to messaging falls squarely within the field of brand marketing and advertising strategies. It is entirely consistent that the research has been conducted by a company that produces research for businesses.

The Sentencing Council is in effect viewing the criminal justice system as a brand with a public image that can be improved. The question arising is whether the promotion of media messages is really sufficient to meet the aim of providing adequate platforms for democratic discussion.

From its evidence review, the report identifies how the selection of stories by the media causes the impression of inconsistency and undue lenience. In the face of selective reporting, how can realistic and incisive media messages be generated and understood by public audiences? Are there alternative trusted sources that can be curated and made truly accessible?

It is vital that independent voices and organisations wishing to inform the public understand the dimensions of their task, and make the case effectively for obtaining the necessary platforms, skills and resources.

Shifting the punitive focus

The construction of the research tends to reflect a longstanding governmental concern with punishment as a collective social purpose. The important question is how much the public, in a general sense, will support. In that sense, the commissioning and publication of the research reveals the extent to which the Sentencing Council has, in effect, become an agent of that agenda, albeit a thoughtful one.

The focus on punishment should be at least balanced by other concerns. Remaining with the government’s agenda is not good enough. There must be more independent research on the information needs of public audiences, and, importantly, on how they can arrive at considered opinions through discussion.

Otherwise the criminal justice system will fail to be accountable in a meaningfully democratic way.