The overwhelming thumbs-down by senior judges in England and Wales to government proposals aimed at changing a sentencing regime introduced less than two years ago is hardly a surprise. Even as the plans were published, Whitehall sources suggested that few would ever be implemented.

Even within the Home Office there were doubts about some of the more contentious ideas in the Making Sentencing Clearer consulation document.

Far from making sentencing clearer, many of those who examined the proposals believed that they would cause more confusion.

Baroness Scotland of Asthal, QC, a Minister of State in the department, was said to be unhappy about a proposal to give judges the power to add extra years to the sentence of a dangerous offender on the basis of “public confidence issues”.

Disagreements between the judiciary and politicans tend to be kept private, but in recent years they have become more public. Much of the argument has focused on judicial discretion as politicans introduced sentencing changes aimed at curbing judicial powers.

Yet as far back as 1880 the Lord Chancellor protested at a proposed Royal Commission intended to bring about uniform sentencing through legislation.

In the early part of the 19th century maximum and minimum sentences restricted judicial discretion, though by the last century the judges had much greater leeway in what jail term to impose.

During the past 15 years politicans have acted to restrict discretion. Michael Howard’s plans for automatic minimum terms for second-time drug dealers and third-time burglars when he was Home Secretary provoked uproar. Lord Taylor of Gosforth, who was then Lord Chief Justice, denounced the plans as ill-conceived and opposition in the Lords forced Mr Howard to make concessions. Judges were allowed to disregard an automatic mimimum term if it was “unjust in all the circumstances”.

The Criminal Justice Act 2003 also caused controversy as David Blunkett curbed the judges’ powers on minimum terms for murderers. The Act also created a Sentencing Guidelines Council, which issues guidance. A judge can move away from its guidelines but must give reasons for doing so.

Proposals and reponse

1. What more could be done to promote use of community sentences instead of short periods in jail? Judges do not impose custodial sentences unless there is no appropriate alternative disposal

2. Does the way sentences are explained in court need to change to make them more understandable to the public? We do not believe that lengthy explanation will improve matters

3. Should sentence be explained as a part to be served in prison and a part as supervision in the community? Not satisfied that this will improve clarity

4. Would it help if judge expressed indeterminate sentence in terms of from six years to life? No

5. Should judge give recommendation in indeterminate cases of a minimum period to be served for public protection in addition to the minimum term for punishment? No

6. Would a judge have sufficient information to reach this decision (above)? No

7. Should judge be able to disapply duty to release offender given fixed-term jail term at half way stage where test of exceptionally high seriousness is met? No

8. Should prison authorities or police be able to apply for prisoner serving a fixed-term sentence to stay in jail longer on basis of behaviour in jail? No

9. Should probation officer get power to vary punishment given an offenders on basis of behaviour without going back to court? No

10. Do you agree with possible arrangements for such a scheme? No comment

11. Should options to reduce burden on probation be red- uced by limiting requests for reports and other measures. Yes

12. Should authorities reach a deal with courts on requests for reports and use of community orders? No

13. Will sentencers be more willing to use fines if more support is available for offenders? No

14. Do you think a community punishment should be unavailable for all non-imprisonable offences or just some non- imprisonable offences? No

15. Should information on unit costs of remand and sentencing disposals be published? Yes

16. Would you like comparative information for each region to be published on crime patterns and reconvictions rates? No. Information already available

Explore Law

• Columnists

• Law Panel

• Law Reports

• Student Law

Times Recommends

• BGC 'set aside £40m to lure Tullett brokers'
• Legal aid review to ensure value
• Fears as 21 magistrates' courts face closure