Banged up

Whether the Home Secretary's late January letter asking judges and magistrates to imprison only the most dangerous and persistent criminals was merely a gentle reminder of existing guidelines or a barely coded message to the effect that his prisons were now full, it is hard to reconcile it with the government's wider policy on the issue of sentencing for criminal offences.

Bigger sentences

New minimum sentences for certain offences, sentences of imprisonment for public protection, the establishment of a Sentencing Guidelines Council that gives public opinion a greater foothold in the sentencing exercise: all these help to explain the inexorable rise in the number and duration of prison sentences imposed by the courts. But perhaps a more strikingly direct cause of the rise in prison numbers is the government's policy of increasing the maximum sentence for certain offences.

The relationship between legislative uplifts of this kind and sentences subsequently handed down by the courts was considered by the then Lord Chief Justice, Lord Woolf, in a speech in April 2003:

'I suspect that when, usually in response to a sensational crime, Parliament, at the behest of the government, increases the maximum sentence for that crime, it is not generally appreciated that this will have an effect on the going rate for all sentences for that crime and indirectly for other crimes as well. When the maximum sentence is increased, the judiciary, as their guideline judgments show, take that as an indication that Parliament wishes all sentences for that offence to be increased.'

A number of maximum sentences have recently been increased by Parliament: for example, when the provisions of the Violent Crime Reduction Act 2006 come into force, having a bladed or pointed article in a public place will be punishable by four years' imprisonment (previously two; the increase will have effect from 12 February 2007), while possession of an imitation firearm will carry a maximum sentence of 12 months' imprisonment (up from six).

Judicial response to another increase, enacted by the Criminal Justice Act 2003, supports Lord Woolf's observation that the courts generally deem Parliament's intention in raising maximum sentences to be to increase sentences for all instances of the offence in question, rather than for only the most serious cases. Section 285 raised the maximum sentence for causing death by dangerous driving to 14 years from 10, itself an increase from five.

The Court of Appeal last year revised its guideline starting points for this offence in light of the change in the law (R v Richardson [2006] EWCA Crim 3186, updating the guidelines set out in R v Cooksley [2003] EWCA Crim 996). The President of the Queen's Bench Division rejected the idea that the 40 per cent increase in maximum sentence should be strictly applied to all instances of the offence:

'It has long been recognised that mathematics does not provide the appropriate answer to a sentencing decision. That said, appropriate proportionality between the huge variety of offences which come within the ambit of these crimes leads to the conclusion that if the level of sentence in cases of the utmost gravity is significantly increased (as it should be) there should be some corresponding increase
in sentences immediately below this level of gravity, continuing down the scale to the cases where there are no aggravating features at all.'

The apparently relentless upward trend in both maximum sentence and guideline starting points for causing death by dangerous driving prompts questions about the likely future of two new offences created by the Road Safety Act 2006: causing death by careless or inconsiderate driving (maximum sentence five years); and causing death by driving while unlicensed, disqualified or uninsured (two years). In a consultation paper published in January 2007, the Sentencing Advisory Panel, as well as proposing revisions to its guidelines for causing death by dangerous driving in the light of the Court of Appeal's decision in Richardson, suggests starting points for the new offences: in both cases, where there are no aggravating features, the appropriate starting point for first-time offenders after a trial is given as a community penalty.

Poor reception

Already road safety groups have reacted angrily. Carole Whittingham, founder of the organisation Support and Care after Road Death and Injury, finds the sentences 'disgusting and insulting'. 'I think it's absolutely appalling to have a maximum sentence of five years for careless driving. I would have expected 10 years... This is no consolation to any bereaved parent,' she says.

If the government at some point in the future responds to such pressure by increasing maximum sentences for the new offences, a glance at the recent history of sentencing for the offence of causing death by dangerous driving suggests that the Home Secretary (or his successor) may have to send another letter to judges 'reminding' them that custody really should be a last resort.