More lenient sentencing is a myth, senior judge says

It is a “myth” that courts are handing out more lenient sentences to criminals, according to the most senior judge in England and Wales.

There is “no doubt” that sentencing levels have increased, rather than decreased in recent decades, the Lord Chief Justice Lord Burnett says.

Giving the annual University College London Judicial Institute Lecture, the judge argues debate over sentencing should be based on “fact not misconception”.

He suggests while individuals can have “stimulating exchanges” on whether sentences should be tougher or more lenient, there should not be “knee-jerk criticism” of a judge for applying the law.

In his speech, the Lord Chief Justice says that if “the mythical alien” were to arrive on earth and take an interest in sentencing in England and Wales, it would “soon gain the impression that sentencing had got softer in recent years” and may “wonder why criminals convicted of serious offences were getting more lenient sentences than they used to”.

But there is a “difficulty with this narrative”, Lord Burnett says, adding “it is a myth”.

Setting out a series of facts, the judge said in 1993 the prison population was just over 44,000 and it is now just under 80,000.

In December 2009, the average length of all custodial sentences was 13.7 months, he says, and in December last year it was 18.9 months.

And the average length of the minimum term a person convicted of murder and sentenced to life imprisonment must serve before they can be considered for release on licence has gone from 12.5 years in 2003 to 21.3 years in 2016.

“There are many reasons for these increases but there is no doubt that in recent decades sentencing levels have increased, not reduced,” Lord Burnett says.

In his speech, the judge notes it is Parliament who sets the overall structure of sentencing, including the maximum sentence available for most offences, and what period of any sentence must be served by a prisoner.

Lord Burnett says judges have to take into account sentencing guidelines when sentencing offenders, and the intention behind these guidelines “is to ensure that there is far greater transparency, and hence understanding, of the range of sentences that judges can be expected to give for specific offences”.

“This greater transparency is reinforced by statute,” he adds.

He notes that very few sentences are changed – between October 2018 and September last year, 672 appeals against sentence were allowed.

And in 2019, of 93 sentences referred to the Court of Appeal for being too lenient, 63 were increased.

Lord Burnett concludes by saying judges “operate in public and state out reasons for making our decisions”.

“Anyone is at liberty to disagree and can do so explaining why,” he says.

“But unreasoned, or worse, ignorant or ill-informed criticism from apparently authoritative quarters tends wrongly to erode confidence in the administration of justice. That is corrosive and harmful.

“Of course, different views about matters of importance are a sign of a healthy democracy.

“Sentencing policy is a matter of acute interest to individuals caught up in the criminal courts, to commentators and academics, to the public and politicians.

“Let the debate proceed on fact and not misconception.

“By all means have stimulating exchanges on whether either generally or for specific offences or types of offender sentences should be tougher or more lenient, but please avoid the knee-jerk criticism of a judge for applying the law and guidelines when they produce a sentence that the commentator wishes were more severe.”