Full text: HK Legal Week's opening remarks by Grenville Cross upon sentencing offenders

Sentencing Offenders: Maintaining Public Confidence in Criminal Justice

By Grenville Cross

Editor's note: These are the opening remarks of Grenville Cross SC at the International Criminal Law Conference, Hong Kong Legal Week 2021, on Tuesday (Nov. 2).

Good morning, ladies and gentlemen.

I am most grateful to the Secretary for Justice for inviting me to participate in today's Conference, and to share with you my thoughts on how criminal justice can maintain public confidence in the sentencing system.

At the outset, it should be emphasized that the sentencing of offenders is rarely easy, and that there are many pitfalls awaiting the unwary. The former Lord Chancellor of Great Britain, Lord Hailsham of St Marylebone, once described sentencing as "the most responsible task which any court of criminal jurisdiction has to perform." Indeed, judicial officers have sometimes been heard to say that, in comparison with the sentencing of the defendant, the trying of him is easy. And this is a valid comment, particularly in jurisdictions such as ours, where mandatory sentences are rare, and the judicial discretion is wide.

Although undue leniency can weaken respect for the legal system, undue harshness certainly does not promote the interests of justice. The options available to judges and magistrates when they sentence offenders can be considerable, and, while this is undoubtedly a good thing, it certainly does not simplify their task. They will often be criticized for their sentences, particularly when they have erred on the side of leniency, so, as a preliminary issue, it is necessary to say something about the extent to which the courts should pay regard to public opinion when they punish offenders.

Public opinion and the punishment of crime

In 1993, the then Lord Chief Justice of England and Wales, Lord Taylor of Gosforth, said that "sentences should not be so far out of touch with the expectations of ordinary, law-abiding citizens as to create discontent", and, as recent events have shown, there is obvious force in that message.

Once offenders are convicted, there are often calls for severe sentences to be imposed, and, less frequently, there are pleas for leniency. The victims of crime, and their friends and relatives, may be particularly vocal, and others in the community, whether commentators, concerned groups or politicians, sometimes demand condign punishment.

Although it is undoubtedly true that judicial officers do not have to reflect the views of the public, they cannot completely ignore them. At the same time, the courts also have a duty to try to lead public opinion. Another former Lord Chief Justice of England and Wales, Lord Bingham of Cornhill, once explained it in this way:

I do not consider it would be right, even if it were possible, for judges to ignore the opinion of the public. They do not live the life of hermits; they are in and of the world; and they are invariably alive to the opinions of their fellow citizens. The judges are also conscious that the gift of infallibility is not conferred on them, alone among mortals, so when differences of opinion arise on issues of sentencing between the judges and an identifiable body of public opinion, the judges are bound to reflect whether it may be that the public are right and that they are wrong.

However, before any weight can be attached to public opinion, that opinion must be informed. All too often, those who condemn the judiciary the loudest actually know very little about the case, and rely solely on media reportage, which can be superficial. It is vital, therefore, that everything possible is done to ensure that the basis of particular decisions is not only clearly explained to those involved in the proceedings, but also disseminated in understandable terms to the wider public. Although the courts cannot allow themselves to be stampeded by public opinion into imposing draconian punishments which are not strictly justified, they must also do everything they can to promote understanding and transparency, most obviously through their reasons for sentence.

Reasons for sentence

The courts, at all levels, should always try to provide reasons for sentencing decisions which, if not lengthy, are clear and particularized, and this can help to guide public opinion. Although this invariably happens in the higher courts, most cases are tried summarily, where the pressures on magistrates are often intense, and, unless the case is high-profile, only brief reasons are generally supplied, although these are subsequently fleshed out if there is an appeal. If, however, judicial officers, at whatever level, can provide cogent reasons when imposing sentence, however time-consuming, this will, apart from assisting crime victims, also reduce the scope for error.

After all, the formulation of reasons requires the court to focus its mind on all relevant issues, including the aggravating and mitigating factors, the precedent cases and the sentencing options. Anything that can be done to promote a greater public understanding of particular decisions should be encouraged, as this will reduce unfair criticisms of the judiciary, particularly in sensitive cases. If, moreover, the media can devote greater coverage to the reasons behind sentencing decisions, this will certainly help in making the public better informed.

In October 2020, the judiciary itself took a significant step to make its processes more understandable. It announced that summaries of selected decisions in the District Court and Magistrates Court which might attract what it called "great public attention" would, as far as practicable, be prepared and uploaded to the Judiciary website. Wherever possible, therefore, this should include sentencing judgments, so that people who are concerned by a particular punishment no longer have to rely solely on the media for their information. When they have access to what is, in effect, a tailor-made explanation from the judiciary, and that is readily understandable, this should go a long way towards allaying public concerns. Although the judiciary's initiative is clearly an important example of open justice in operation, the courts will still require every assistance from counsel if they are to achieve just outcomes.

Prosecutor addressing court on sentence

In a trial proper, counsel for the prosecution and the defence enjoy an equal right to address the court on the issue of guilt or innocence. However, at the sentencing stage, the right of address is confined to defence counsel. Since 1988, when the Court of Appeal pronounced upon this issue in the landmark judgment of Attorney General v Jim Chong Shing, the role of the prosecutor has basically been confined to providing a trial court with "tariff" or "guideline" judgments, together, of course, with the offender's criminal antecedents and the victim impact statement, if any. Upon invitation, the prosecutor may also provide relevant statistics and information about offence prevalence, and that is basically the extent of the assistance that may be given. Indeed, on one point the Court of Appeal was emphatic, insisting that a prosecutor must be careful "not to suggest any particular sentence or type of sentence, and say anything that could be taken as advocating severity".

The rationale of this approach has always been that, as a minister of justice, the role of the prosecutor is confined to assisting a court, in an even-handed way, to achieve a just outcome, and that the prosecutor has no interest in the case being disposed of in one way or another. In other words, it is perfectly acceptable for the defence counsel to submit that a lower sentence is appropriate, but not for the prosecutor to suggest the contrary. This means, of course, that the court only has the advantage of the submissions of one of the parties, and this can, and does, produce error, which cannot be in the public interest.

Indeed, the prosecutor, who represents the public interest, does have an interest in the outcome of the sentencing exercise, not least because, if it miscarries, the Secretary for Justice may have to institute a review of sentence. A review, of course, can be traumatic for the offender, who faces the prospect of being sentenced a second time. It is also costly and time-consuming, drawing heavily on judicial, and other resources. If an appropriate sentence is imposed at trial, this is obviously in everybody's interest.

In England and Wales, the Attorney General's guidelines on the prosecutor's role in sentencing indicate that the prosecutor represents the public interest, and should be ready to assist a court to reach its decision on the appropriate sentence. This, however, is confined to drawing the court's attention to: victim impact statements; evidence of a crime's impact on a community; statutory provisions relevant to the offender and the offence under consideration; sentencing guidelines; and the aggravating and mitigating features of the offence under consideration. Quite clearly, therefore, a prosecutor in that jurisdiction has no right to seek a severe sentence, but he or she can still go further than is allowed in Hong Kong, most notably by indicating aggravating and mitigating features to which the court should have regard, and explaining the impact of the offence on people living in a particular area.

In the United States, however, prosecutors enjoy greater leeway. By virtue of the Federal Rules of Criminal Procedure, both defenders and prosecutors are provided with what is called the "Opportunity to Speak". This right was notably exercised in June, at the sentencing of Derek Chauvin, the former Minneapolis police officer convicted of the murder of George Floyd. After prosecutors filed a sentencing brief, and highlighted four aggravating factors in Floyd's murder, they told the sentencing judge (Judge Peter Cahill) that he "should take the next step and hold that each of these aggravating factors" provided a basis for imposing a sentence two times the upper end of the presumptive sentencing range, and they asked specifically for a sentence of 30 years' imprisonment. In a separate brief, Chauvin's lawyers asked for a downward departure from the sentencing guidelines, or a sentence of probation which reflected the time already served behind bars. In the event, Chauvin was sentenced to 22.5 years' imprisonment, and there are lessons to be learned from the way cases like that are handled.

Speaking as the prosecutor who represented the Attorney General in the Court of Appeal in the Jim Chong Shing case, it seems to me that things have now moved on, and that the public interest will be best served if the prosecutor enjoys an enhanced role in sentencing. Indeed, there is no reason to suppose that the courts will not be greatly assisted by the direct input of the prosecutor concerning the appropriate sentence, provided it is done in a measured and thorough way. It is surely anomalous that only one party can be heard at the sentencing stage, notwithstanding that, prior to that point, on every other issue arising in the trial, both parties have been allowed to present their submissions.

It is, I suggest, no more than a statement of the obvious that, if the prosecutor was allowed to make submissions on sentence, this could benefit the court, reduce the chances of errors arising, and help to avoid the need for subsequent sentencing reviews in the Court of Appeal. Of course, if the prosecutor overstepped the mark, and indulged in inflammatory rhetoric, something proscribed by The Prosecution Code, he or she would be pulled up by the court, but this is equally true of defence counsel, who is also subject to a professional code. This, however, is not likely to arise, as both prosecutors and defenders invariably observe the proprieties, and understand the parameters within which they operate.

Indeed, it is hard to see what logical objection there could be to a prosecutor in, for example, a drug trafficking case, saying to the judge: "My Lord, given the absence of remorse, the prevalence of the offence and the quantity of pure narcotics, and taking into account the aggravating factors, which include recidivism, the international element and the recruitment of young persons, we submit that a deterrent sentence is unavoidable, and that, according to the guidelines, and subject to my learned friend's mitigation, a sentence in the upper band of sentencing is appropriate, by which we mean a sentence of between 15 and 20 years' imprisonment". A submission of this type could certainly do no harm, and might actually do some good, not least because, if a correct sentence is achieved, it enhances public confidence in the sentencing process. The same, of course, can also be said of consistent sentencing, to which a prosecutorial right of address can also contribute.

Consistency of sentencing

There can be little dispute that consistency of sentencing is absolutely essential. There should not, save for good reason, be wide fluctuations in the sentencing of offenders who commit the same type of offence in broadly similar circumstances. If consistency is achieved, it eliminates the notion of "judicial lottery", in being sentenced by one court rather than another, and it has even been judicially described as a 'vital constitutional principle' (HKSAR v Chau Chun Yee). Although, of course, consistency of approach does not mean that each and every case has to be dealt with in exactly the same way, regardless of the aggravating or mitigating factors, what it does mean is that a court should provide cogent reasons for stepping outside the usual sentencing range. If this does not happen, public confidence can suffer, with people questioning why cases that might appear similar are disposed of differently.

Quite clearly, one way to promote consistency is for the courts to follow the judicial signposts when they sentence offenders. By this, I mean the sentencing guidelines or tariff judgments which the appellate courts have issued in relation to some, but by no means all, offences. Although courts can always depart from the guidelines for good reason, whether by upward or downward revision, the existence of guidelines goes a long way towards reassuring the public that sentencing is being properly conducted.

Although the Court of Appeal has sometimes expressed reluctance to promulgate new guidelines, they are invariably of great utility, and I believe there should be more of them, or at least more tariff judgments. I say that particularly having regard to the large number of new offences that have been created in recent times, including doxxing, upskirting and voyeurism, and in which trial courts, in the absence of any appellate guidance, may be expected to impose widely divergent sentences, at least to start with. A big question these days, however, is how sentencing guidelines should come about, and there have been calls for a Sentencing Council.

Sentencing guidance: Sentencing Council

Since the 1970's, the Court of Appeal has been responsible for providing sentencing guidance to the trial courts. As Chief Justice Sir Denys Roberts explained in 1979 (Chan Chi-ming v R), its duty is "to give guidance to courts within the territory", and basic fairness to convicted persons requires "a substantial degree of consistency in the punishment to be imposed for similar offences". Since that time, the Court has issued very helpful sentencing guidance in relation to an array of offences, including burglary, child pornography, drug trafficking, rape and robbery, with the impact of aggravating and mitigating factors being carefully explained.

Sometimes guidelines have been formulated to nip a new type of offending in the bud, as where a new narcotic appears. Since, moreover, they are not cast in stone, updating is sometimes necessary to reflect latest developments, as, for example, when an upsurge of "head-bashing" robberies aroused concern and a revision of the robbery guidelines was made. Whenever guidelines are required, the Court has ensured that extensive research is conducted, and has obtained information on, for example, the impact of a particular crime on its victims, the prevalence of the offence, and the views of the experts, and useful guidelines have resulted.

In recent times, however, there have been calls for a new system, whereby the promulgation of guidelines becomes the responsibility of a Sentencing Council, such as exists in some other common law jurisdictions. It has to be said that many of those calls have emanated from people who are unhappy with particular decisions, and who imagine that, if a Sentencing Council is created, the courts would lose their discretion and be obliged to impose higher sentences. This, however, is a misconception, as that is not how such bodies work.

In England and Wales, for example, there is a Sentencing Council which promulgates guidelines for particular offences. Historically, the Court of Appeal, as in Hong Kong, took the initiative in developing guideline judgments as a means of assisting trial courts in relation to the more serious crimes, likely to attract long terms of imprisonment. In 1998, however, this changed, when the Sentencing Advisory Panel was created, to assist and advise the Court of Appeal on the development of sentencing guidelines, and to conduct research. In 2003, the Sentencing Guidelines Council was established, with the function of issuing sentencing guidelines, and with the Sentencing Advisory Panel now advising the Council rather than the Court of Appeal.

In 2009, both the Panel and the Council were replaced by the new Sentencing Council, which now comprises 8 members of the judiciary, and 6 non-judicial members, all with expertise in criminal justice. In consequence, sentencing guidelines are now developed in one of two ways, either by the Sentencing Council, which is the usual way, or by the Court of Appeal itself issuing guideline judgments, which is the traditional way. Since 2010, the law has provided that a judge must follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so.

The English sentencing guidelines set out sentence ranges for particular offences, reflecting different levels of seriousness, and within each range a starting point for sentence is indicated. The guidelines also provide guidance on factors the court should take into account that may result in a more or less severe sentence being imposed. In, for example, a case of theft or burglary in a building other than a private dwelling, the offence is treated as aggravated if there are offenders operating in a gang, if vulnerable witnesses are deliberately targeted, and if there is a high level of gain. The offence, however, is treated as mitigated if the defendant has returned the stolen property, or if the defendant acted out of desperation or need.

The Sentencing Council develops its guidelines in a structured way. It may decide to consider a topic itself, or after a referral. Once it takes a topic on board, research is undertaken. After it has formed its preliminary views, the Council publishes a consultation paper on the topic and a draft guideline, and there is then a 3-month consultation period. Having considered the responses, the Council then issues its definitive guideline, which is generally binding on all courts in England and Wales. Thereafter, the Council monitors the operation of the guideline, so that it can, if necessary, be amended in future. In addition, the Council assesses the impact of guidelines on sentencing practice, and the impact of sentencing decisions on victims.

It is clear, however, that, regardless of whether guidelines are issued by the Court of Appeal, as in Hong Kong, or by a Sentencing Council, as in England and Wales, the effect on the trial courts is exactly the same. In both places, research is conducted before guidelines are issued, and, once they are in place, they are normally followed, although judges can depart from them for good reason. Whereas, moreover, a Sentencing Council may be of particular value in a large jurisdiction, where courts in one part of the country have no idea how sentencing issues are being handled by the courts in another part, leading to inconsistent approaches and public grievances, this cannot be said of Hong Kong.

In comparison to England and Wales, Hong Kong is, of course, a tiny jurisdiction, and there is regular liaison between the courts, with the Judicial Institute also keeping judicial officers abreast of sentencing developments. The Court of Appeal has its finger on the pulse, in the sense of discerning inconsistent sentencing trends which require remedying, whether through guideline or tariff judgments. When errors appear, as where, for example, wholly concurrent sentences are imposed on offenders who are already serving sentences for identical offences, meaning no actual punishment is imposed, the Court of Appeal can correct the matter on review, while the Judicial Institute can remind judicial officers of the importance of consecutive or partly consecutive sentences in its training seminars. Indeed, the Judicial Institute is best placed to ensure that judicial officers are fully apprised of sentencing principles and latest sentencing issues, and I am certain it is already ensuring this.

What this all boils down to, therefore, is that there is already in place adequate machinery to monitor, and, where necessary, correct sentences passed by trial judges. A Sentencing Council would add nothing of value, and might even usurp the function of the independent judiciary. When all is said and done, the present system, as it has developed since the 1970's, works well, and a new mechanism to guide the trial courts is not required.

Victims of crime

If public confidence is to be maintained in sentencing, it is vital that the victims of crime, whether direct or indirect, are appropriately treated. This does not mean that their views should be solicited on the actual sentence, but that the impact of the crime upon them should be fully ascertained before punishment is imposed. As a result of the Victims of Crime Charter (2007) and the Prosecution Code (2013), everybody now appreciates that the voices of the victims should be heard, and that prosecutors have a duty to try to ensure this. Quite clearly, before the passing of sentence, judicial officers need to understand how the offence has affected the victim personally, emotionally and financially. After all, one of the purposes of sentencing is to assuage the feelings of victims, their relatives and friends, and, if this does not happen, they may be tempted to take the law into their own hands, and to mete out summary punishment of their own.

However, although the various protocols are all very helpful in their own way, they lack a statutory basis, at least for the most part. The trial courts can even decline to receive a victim impact statement, let alone hear from the victim. But, even if the court takes the view that the victim has nothing useful to say, and that the impact of the crime is obvious, it is important not to underestimate the cathartic effect which the actual giving of testimony can have for the victim. For the victim to know that he or she has actually played a part in achieving justice, and not simply been a cog in the process, is a highly significant factor in maintaining public confidence in the legal system. If, conversely, a victim feels cheated by being denied his or her day in court, this may damage public trust.

Indeed, the time has surely has come to move to a higher level, and to enshrine victims' rights in legislation, through a Victims of Crime Ordinance. Although it is certainly true that, under the Organized and Serious Crimes Ordinance (Cap.455), the prosecution can provide a court with information about the effects of a crime on any person, this only applies to particular offences, and even then it does not extend to all the trial courts. What is required, therefore, is a comprehensive victim's law, such as already exists in places like Australia, Ireland and New Zealand, and which reflects the obligations which the criminal justice system owes to those who suffer harm, not only at the sentencing stage, but from the time the offence occurs and throughout the entirety of the trial.

On September 30, the British Government announced that, in response to a horrific murder case which occurred on March 3, and in which Sarah Everard was raped and killed by a serving police officer, Wayne Couzens, it plans to fast-track a victim's bill. Although the bill's details have yet to be announced, it appears that victims will acquire a greater involvement in the sentencing process, and this, I suggest, should be monitored by the Department of Justice.

A central feature of a victim's law would be the entitlement of a victim to inform the court directly of the offence's effects, whether immediate or long-term. It would also provide the victim with an opportunity to explain if it has left him or her feeling vulnerable or intimidated, and to disclose any other matters considered relevant or of assistance to the court. It is, of course, not only the victims but also their relatives and friends who can be badly affected by the crime, and there will certainly be cases where their voices should also be heard prior to sentence.

Indeed, in the Wayne Couzens murder trial at the Old Bailey in September, the mother, father and sister of Sarah Everard not only provided victim statements, but also addressed Lord Justice Fulford directly. They each explained the devastating impact of Couzens' criminality upon their lives, and how they had suffered. In sentencing, the judge paid tribute to the dignity of the Everard family, and said their statements had "revealed the human impact" of Couzens' offending. He then imposed a whole-life sentence upon him.

After sentence, the Everard family said they were "pleased" with the sentence, and observed that the knowledge that Couzens would be imprisoned forever had brought them "some relief". It appears, therefore, that, while devastated by their loss, the family's close involvement in the sentencing process had a beneficial effect, and they were able to draw comfort from knowing they had helped to ensure that Couzens received his just deserts. By virtue of having played a role, the family was left with the feeling that the criminal justice system had served it well, and the public will also have shared its satisfaction.

It is clear, therefore, that cases of this sort can provide important lessons for this jurisdiction, where victims sometimes have the impression they are simply bit-part players. Although viva voce evidence by victims, their relatives and friends at the sentencing stage of the trial is, at most, highly rare in Hong Kong, a strong case exists for reviewing its use. Even if a judge has already basically decided what the sentence should be, a victim who wants to be heard should be heard, not least because it can assist the healing process.

I am thinking here, for example, of the parents whose child was kidnapped, the woman who was brutally attacked, and the family whose lives have been turned upside down by the loss of their life savings through fraudulent dealings. When victims testify as part of the sentencing exercise, it gives them their day in court, enables the judge to learn first-hand of their ordeal, and enhances public confidence in the ultimate sentence, as is recognized elsewhere.

In the United States, for example, the Federal Rules of Criminal Procedure stipulate that "Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard". Indeed, almost all states in the US have laws on victim participation in the sentencing process, with some even going so far as to require the courts to have regard to the victim's views on the sentence itself. In Australia, the Crimes Act 1914 was amended in 2013 to facilitate the use of victim impact statements in the sentencing of federal offenders, and it contains significant provisions whereby the statement may be either oral or written, and it can be made by the individual victim, or by a member of the victim's family, or, with the court's consent, by a person appointed by the court.

Quite clearly, if the court can receive direct information about the effect of the crime on the victim, as well as on others, this will help it to evaluate the gravity of the offence for sentencing purposes. The greater the information available, and the more direct its mode of presentation, the lesser will be the chances of an inappropriate sentence being imposed.

I should add that, in England and Wales, there is a Victims' Commissioner, and there is also one for London itself. As the title suggests, the commissioner is responsible for all aspects of victim welfare and giving victims a voice, and this includes ensuring that victims are appropriately treated by the court system, up to, and including, the sentencing exercise. If, as I suggest, a victims' law is to be considered for Hong Kong, the possibility of also creating a Victims' Commissioner at the same time will be deserving of serious examination.

Conclusion

In their light opera, The Mikado, Gilbert and Sullivan's Mikado was entirely clear over the objective of his sentencing policy. He declared 'My object all sublime, I shall achieve in time, to let the punishment fit the crime, the punishment fit the crime.' Alas, the Mikado was not legally trained, and, if he had been, he would have known that sentencing is not mechanical, and that the sentence must also fit the criminal. He would also have appreciated that the sentence should also be one which leaves the public with the feeling that justice has been done. This, however, as many of you will know from direct experience, can sometimes be far from easy, but it is certainly not impossible.

Thank you.

 

Grenville Cross is a Senior Counsel, Professor of Law and criminal justice analyst, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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