Earlier in the year, there was widespread reporting of the story of (in the words of the Daily Telegraph) the ‘Homegrown’ British terrorist bride jailed over Jewish plot’. Mr and Mrs Khan were convicted of terrorist offences. I saw not one report that accurately represented the sentences imposed upon them. Many reported that Mrs Khan received eight years and Mr Khan received seven and a half years.
This was wrong. In addition to this error, Radio 2 and Radio 4’s reports clearly suggested that Mrs Khan was the principle offender and therefore received the longer sentence. Also wrong. Mr Khan received what is known as an IPP sentence (Indeterminate sentence for Public Protection), which means he cannot be considered for release until the expiry of his minimum term but also that he may never be released – it is considered practically the same as a life sentence. Contrast that with Mrs Khan, who will be released on licence at the half-way point of her sentence, and eligible for release on a tag up to 135 days before the half-way point. Because Mrs Khan serves around half of her sentence but Mr Khan serves all of his, we must double his sentence to allow us to compare them. Therefore, he received a 15-year sentence, almost double that of Mrs Khan.
The gulf between reality and the way in which the criminal law is understood by the public should be a serious concern. If the public don’t understand why certain decisions are made, or results occur, then how can they be expected to support the system, place their faith in it and perhaps even object to cutting legal aid spending?
Key issues which need to be addressed in relation to the education of the public tend to revolve around sentencing; the Sentencing Council recently released an animated film explaining to victims and witnesses how sentencing works. But it falls to the wider legal profession to do more.
So in the case of the Khans, it was important to explain that Mr Khan received an IPP sentence and what that practically meant. If it had been explained that Mr Khan may never be released from prison, many might have thought that current sentencing policy treats terrorism offences with the seriousness it deserves. Instead, there was anger at a perceived disparity between the offence and the sentence. Only when the public are in possession of accurate information, can they properly form an opinion as to how the criminal justice system operates. Whether they agree or disagree is really secondary.
‘The punishment doesn’t match the crime!’
A commonly held opinion is that the punishment doesn’t match the crime; whilst this is of course entirely subjective, there are parameters of what can conceivably be the ‘correct’ sentence. The press certainly do not help. Headlines stating that ‘prolific burglar receives community sentence’ exacerbate the feeling that judges are soft and criminals are often not punished but mollycoddled.
A more helpful approach would be to list the aggravating and mitigating factors of the offence, but also the factors which relate to the offender – e.g. he commits burglaries to feed a drug problem – and therefore it is better to treat his drug addiction to prevent further offending. What better way to keep the public safe? Moreover, it should be explained what each element of the sentence is designed to achieve. Whilst this may not persuade all that the sentence is just, it at least aids the understanding of why such a sentence was imposed.
‘Why doesn’t five years mean five years?’
It used to be that prisoners would be released after three-quarters of their sentence as a reward for good behaviour. As the prisons began to fill up, this rule was changed to allow for a prisoner’s release at the half-way point (principally to keep costs and prison numbers down). Subsequently, Home Detention Curfew was introduced as a further means of releasing prisoners from the prison estate during their sentences.
When a prisoner is released, they are released on licence. There are conditions set which must be complied with, such as meeting with a probation officer, reside at an agreed address and not to travel outside of the UK. If an offence is committed during the licence period, the offender can be returned to prison to serve out the remainder of their original sentence, and any sentence which is imposed for the new offence.
‘That makes no sense!’
When the criminal law appears contrary to commonsense, the public become angry and disengaged. With a recent stream of sentencing decisions which have seemed completely inconsistent, it is no wonder that the public regard sentencing as a joke. Where there is an apparent illogical decision, it is vital that it is explained and that such an explanation is accessible by all. I recently sat on an Old Bailey manslaughter trial as a juror and was largely impressed by the ability of my fellow jurors to grasp what was at times a rather complex trial. The majority of the public are capable of understanding the reasons for decisions in the criminal courts, provided they are explained to them. Whilst they may not agree, at least a plain-English explanation bridges the gap between reality and common misconception.
Step 1: Make people understand, but not necessarily agree
The problem is that the public are largely unaware of most of the above. Press reports are frequently inaccurate or misleading. In the absence of the fullest information coupled with explanations as to why certain decisions were made, the public are left to join up the dots in the dark.
Who then, is to lead the public on the path of enlightenment? It must fall to all engaged in the criminal justice system. The aim is not to convince everyone that a community order for Justin Lee Collins is correct, but to help them understand why the law says it is correct. What follows is a more informed debate.
Making all sentencing remarks available online instantly should assist in more accurate law reporting by the press. Televising sentencing hearings would allow the public to see first-hand what the judge said and why he or she imposed the particular sentence that they did.
In the meantime, Dan Bunting, Sara Williams and I set up a blog aimed at making the criminal law more accessible. It provides information in plain-English on topics such as the different types of sentence a court can impose, how a prison sentence works and what is necessary for an ASBO to be made. It also provides details of news stories, but with the law explained. For example, why Asil Nadir was only made to pay £5m in compensation, when he had been found to have stolen £28.3m.
Hopefully, the desire to have the fullest information, and to ask ‘why?’ will catch on.
Lyndon is editor of Banks on Sentence, the leading book on sentencing in criminal cases. Lyndon has been involved with the pro bono organisation, the Innocence Project, which works towards CCRC applications in cases of alleged miscarriage of justice.