The political bias of the pioneers behind the new criminology department is obvious.  That they will focus on petty drug-dealing, car theft and repeat offenders should be the least of our concerns.  Rather, the lack of academic training and credibility of those designated to lead the criminology division at the French National Council of Universities (CNU) is much more of a problem.  It is certainly a positive thing that criminology is recognised as an autonomous field.  But it should be an academic discipline, not a politically-driven move by rightist politicians to justify their contested research.  Alain Bauer has been criticised for his research methods, findings, and for the general bias of his so-called research.  In 2003 he was awarded the ironic ‘Big Brother Award’ by Privacy International, for his tireless work in favour of more surveillance over privacy.

Without proper academic training, some people are able to produce perfectly valid results, by adhering to a code of conduct, methods and tools that are the safety net of researchers against common mistakes, political bias and gross misconduct.  Alain Bauer will not benefit from any of the tools and mistakes that protect academics from common mistakes.  He has been regularly criticised for his idealistic interpretations of statistics, most notably at the time of his nomination as a professor of criminology at the Centre National des Arts et Metiers (CRAM) in 2009.  He will maintain his current research topics (private urban criminality), his current methods (denounced by sociologists, law professors, and NGOs) and probable findings (that more powers be given to the state and that the police will ultimately resolve criminality problems).  In Bauer’s works, criminology is to be understood only to facilitate the arrest of criminals, no other approach, intent, or research interest has ever been presented by him or his fellow ‘researchers’.  On a more serious note, he will now benefit from the legitimacy of being an ‘academic’ despite never having published anything that deserves this label.  Some of his previous work, approximately 40 books on criminality, include: ‘Violence and Urban Insecurity’ in 2006, and ‘Video-surveillance and Video-protection’, in 2008. These works take the academic form but do not adhere to academic standards in terms of methods and evidence-based conclusions.  Mostly, his books are driven by narrow political motives.  For one, Alain Bauer disproportionately focuses on urban petty criminals, as opposed to the crime of the powerful and the crimes of companies, betraying a bias of political partisanship.  This focus is combined with ‘threat-based’ research in criminology that sets up the state as the centre and subject of its remedial method and findings.  The failure of this approach in criminology studies in the United States for instance, did not prevent Alain Bauer from promoting this brand of criminology. In truth, this outdated approach sets the field a hundred years back in time, when the raison d’Etat would justify the most serious violations of human rights by governments, while academics were justifying and validating this vision.

The method used to create the criminology department illustrates the pretentious tone that has characterised the entire Sarkozy administration, which has prescribed French security policies for more than 10 years.  Academics have been ignored; the results of the public consultation have not been published; professors and members of the CNU have been deprived of their right to participate in the debate. Their opinions on the purpose of such a move and also on the methods have been erased by the President’s desire to see an American and United Kingdom-like criminology culture penetrating the world of French universities.

I believe that universities are not mere places and institutions of teaching and knowledge.  Just like any other institution, they reflect their time and the society that forms them.  That the CNU has been run over by politicians, without having a say in the modification of their organization and governance, perfectly illustrates how current politics in France seek to delegitimise academic knowledge, in favour of addressing ‘real issues’.

As a result of these changes, the works and efforts of those who pushed for years for the consideration of state criminality in criminology studies has now been displaced in France.  Now, researchers, human rights activists, sociologists and law professors will have to persuade a new variety of academics, academics without doctorate degrees who have been put in place by politicians.

Knut Fournier

The Guidelines System in England and Wales

The Sentencing Council has recently altered the format of the guidelines with the new Guideline for Assault effective from June 2011.  This means that the guideline used by judges in the survey is different to the current guideline and may have an effect on future statistics.  However, the general approach has remained the same and will be outlined in order to lay the foundations for the discussion ahead.

The guidelines divide the sentencing process into separate steps which are clearly set out and must be approached systematically.  The guideline specifies an overall offence range for each offence.  For example, common assault has an offence range of “discharge – 26 weeks custody”.  Within each offence, different categories are specified which reflect the varying degrees of seriousness of the offence through different gradations of culpability and harm.  Each category has its own sentence range and a starting point within the range from which the sentencer will start to calculate the provisional sentence.[2]  Judges must match the offence to one of the categories using only factors included on the exhaustive list.  Once the Judge has chosen the category, and therefore the starting point, he or she must “’fine tune’ the calibration of harm and culpability by reference to a list of aggravating or mitigating factors”.[3]  Judges are entitled to move out of the original category range at this point.  The remaining steps include other considerations such as reductions for assisting the prosecution or the guilty plea, as well as the possibility of compensation or ancillary orders.

Measuring Success: Consistency, Compliance Requirements and Departure Rates

Many people consider the true measure of a guidelines system to be consistency of sentences.  This is regarded as the most important way of ensuring that justice is done in all cases.  Indeed it was an instrumental consideration in the argument for sentencing reform in this country.[4]  However, the sentencing scheme in England and Wales seeks to combine a number of competing aims while remaining grounded in English legal tradition.  These include the desire to preserve judicial discretion and the principle of proportionality.  It is not an easy task, nor is there a simple measure of the extent to which the current system has been successful in achieving its overall purpose.  By their very nature, the purposes at times intrude upon each other making success in one area, a compromise in another.

The compliance requirements imposed on courts reflect an attempt to balance the desire for judicial discretion in sentencing with consistency and compliance with the guidelines.  The compliance requirements are set out in Section 125(1) of The Coroners and Justice Act which states that the sentencing court must follow the relevant guidelines when sentencing or performing any function relating to sentencing unless it is of the view that it would be contrary to the interests of justice to do so.  This formula arose out of the recommendations of the Gage report[5]and replaced the previous requirement to “have regard to” relevant guidelines, and to give reasons for any departure.

The duty to follow the guidelines includes a duty to give a sentence within the offence range[6] and a duty to identify a seriousness category and starting point.  Where the court has not followed the guidelines, it is required to explain why it was of the view that it would be contrary to the interest of justice to have done so. [7]   Notably, the Act specifically states that there is no duty to impose a sentence within the category range.

Sentencing Council Experimental Statistics

The Office of the Sentencing Council has recently released the Crown Court Survey which is a preliminary document providing compliance statistics for assault offences.[8]  A survey form was completed for every sentence passed on a principal offence at all Crown Courts across England and Wales from 1 October 2010 to 31 March 2011.  A total of 36 093 survey forms were returned.  The statistics are experimental and not nationally representative but do provide some insight into the departure rates.

The report focussed on the offence of Actual Bodily Harm (ABH) as this was the offence for which the most forms were received.[9]  Using the sentence prior to a guilty plea reduction, the report considered the compliance statistics for both the offence range and within the four category ranges.  The offence range for ABH runs from a medium community order (minimum for level four) to four years in custody (maximum for level one).

The statistics showed that 98% of the sentences fell within the offence range with only 1.5% below and 0.5% above.[10]  This is an exceptionally high compliance rate.  When considering the more specific category ranges within the offence, a different picture emerged.  At each of the four offence levels, a significant portion of the sentences fell outside of the category range.  For level three offences, almost half of the sentences fell outside the category range of 0.2 – 0.7 years.[11]  The graph for level four offences showed that the majority of sentences were higher than the 0.5 year custodial maximum for that level.[12]  The SC notes that no attempt was made to assess whether these departures were justified.  The court is not under any obligation to remain within the originally selected category level and it is perfectly acceptable, once considering other factors, for the sentence to fall outside the category range.  However, it is interesting to note the very low departure rate for the broad offence range and the relatively high departure rate for the more specific category range.

Some difficulties  and the value of compliance statistics

Roberts notes that the extent of the offence range and the departure test are two factors that need to be kept in mind when examining consistency.  These will heavily influence the usefulness of compliance statistics.  He notes that where there is a narrow range, the departure test needs to be sufficiently flexible to accommodate exceptional cases.  A broader range should be accompanied by a stricter compliance requirement.[13]  As Roberts comments, both a guideline scheme with very broad ranges but a high compliance rate, and a scheme with very narrow ranges and a low compliance rate, will be ineffective in achieving true consistency.  When looking at the compliance statistics one must bear in mind the broad offence ranges in the English guidelines as well as the nature of the compliance requirements.

Even before the statistics were available, Ashworth argued that the weak compliance requirements that allow movement between category ranges would compromise consistency.  It is problematic, in his view, that a judge does not have to comply with the departure test nor give reasons when moving between category ranges.  Judges merely have to pass a sentence within the very broad offence range.  He blamed the “pitifully loose” wording of the Act which has “cushion[ed] any mandatory force of the word ‘follow’ so as to deprive it of much of its force.”[14]  This argument is acknowledged by Roberts who accurately predicted that the impact of the “liberalisation” of the compliance requirement would be to create very low departure rates.  He suggested that this would be “not because compliance has become near universal”, but because the definition of a departure requiring justification has changed—departures have been defined out of existence.”[15]

In line with the views of Ashworth and Roberts, it is clear that the very broad offence ranges in the guidelines means that judges are very likely to impose a sentence within the range.  This leads to a very high compliance rate.  One has to wonder whether the guidelines merely validate the range of sentences that judges would impose anyway.  A comparison of these statistics with sentences for ABH prior to the guidelines could show whether the guidelines have actually brought judges’ sentences within the guideline range, or whether the offence range is so broad that it covers all reasonable potential sentences, making the duty to comply almost irrelevant.

The higher departure rates for movement between category ranges indicates that judge are willing to use their discretion to increase or decrease a sentence where mitigating or aggravating factors are present.  The Sentencing Council does not speculate as to whether the reasons for moving outside of initial category ranges were acceptable or not, and this was not part of the data collected.  However, we do know that previous convictions were taken into account in 53% of the ABH cases,[16] a factor which will be considered as aggravating.  More research needs to be conducted to ascertain what factors judges considered in moving out of the category range.  If structured decision-making is key, then information and data on decision-making, and not the final sentences, needs to be collected and analysed.

Ultimately, the 98% compliance rate means very little in determining whether the guidelines have achieved their purpose of consistency in sentencing.  Compliance rates are an imperfect measure of whether consistency has been achieved as their interpretation is coloured by the subjective nature of “what constitutes an acceptable as opposed to excessive rate of departures.”[17]  The value of the compliance statistics is heavily influenced by the overall aims of the sentencing scheme and the extent to which the guidelines seek consistency over anything else.  Departure rates speak only to consistency of outcome and “assume a different form and function” in the English system.[18]

Roberts provides a compelling view on the differing ideas of consistency that may occur between jurisdictions.  He argues that different sentencing schemes approach consistency in different ways.  He describes the way in which the United States schemes achieve low departure rates through narrow ranges and high thresholds to move beyond the presumptive range.  He states that “consistency is achieved by, and defined in terms of, consistency of outcome.”  No guidance is given to sentencers as to how they should arrive at the final sentence.[19]  Roberts contrasts the American grids to the English system which he believes provides “greater flexibility of operation” but, most importantly, a “detailed and structured methodology for both levels of court to follow.”  The logic behind this scheme, argues Roberts, is that if two courts impose different sentences for the same offence, the fact that they have followed “the same sequence of steps to determine the sentence” will mean that any difference is a result of legally relevant factors.[20]

Concluding Remarks

The guidelines system in England is therefore not one aimed purely at consistency of outcome.  Indeed, the desire for justice in individual cases and the need for judicial discretion has always been a major concern in sentencing.  The scheme seeks consistency in a different sense; the more nuanced and contextualised idea of consistency of process.  However, progress towards this goal cannot be measured through compliance statistics which merely speak to consistency of outcome.  In addition, the weak compliance requirements and broad offence ranges mean that we cannot ascertain the extent to which the guidelines are truly influencing sentencing.  Judges move easily between category ranges without a duty to provide any explanation and are merely obliged to remain with the very broad offence range.  The Sentencing Council must be commended for the thorough and transparent manner in which they are carrying out their obligation to monitor the guidelines, however, one must be wary of reading too much into the compliance statistics and further research and analysis is required before they can give us a true indication of consistency in sentencing.