The Council may not have wished to draw attention to the study because on the face of it, the results raise embarrassing questions about the value of guidelines . The Burglary Guideline was supposed to increase consistency and "regularise practice", rather than "substantially altering it”. The research found that in fact there has been a shift towards more severe sentences for all kinds of burglary and for non- domestic cases “a steep increase” with average custodial sentence lengths going up 13% between 2011 and 2014.
Much of the report looks to attribute the changes to factors other than the Guidelines such as pre-existing upward trends or the effect of the 2011 riots in London and other cities. The report argues for more research to identify why there has been a change contrary to the resource assessment – the exercise the Council is required to undertake to estimate the impact of their guidelines on the need for prison and probation places. In the case of burglary no change in disposal types or length was anticipated in the final resource assessment published in 2011.
Something seems to have gone seriously awry, with judges seemingly either misinterpreting the Guideline or ignoring it. The Crown Court Sentencing Study published last year found that in 97% of cases Judges sentenced within the (generously wide) prescribed range for the various burglary offences; but for sentences of “domestic burglary” and “non-domestic burglary” virtually all departures from the guidelines were above the offence range. The latest study findings make it look plausible that in addition, some at least of the Courts which have sentenced within the ranges have nevertheless upped the going rate in a way that was neither intended nor predicted.
Whatever the reason, sentence inflation has certainly happened and as the resource assessment document pointed out in 2011 “since sentencing for burglary costs around £260m a year, small changes to sentencing practice have the potential to have substantial resource implications”. These cannot have been welcome to the cash strapped Ministry of Justice who, according to the Permanent Secretary, have had to introduce unusual and controversial measures last year to avert a several hundred thousand pound overspend.
But the research points to a brutal truth that the ministry and its boss must face. It was put eloquently in the House of Lords yesterday by Lord Dholakia who argued that “sentencing guidelines should scale down the number and length of prison sentences except for the most serious crimes”; and that the Government should legislate to make sentencing guidelines take account of the capacity of the prison system. Unless they take those kind of measures, Mr Gove’s warm words on prison reform will be destined to remain just that.