Where next for sentencing policy?

The current prisons crisis

Our prisons are at operational breaking point and will be a priority for the new Labour Government. Labour’s manifesto said they will continue the policy of the last Government in wanting to build more prisons. The big question has been whether this is to replace old crumbling prisons with new, more humane ones, or whether they intend to continue a policy of sending more and more people to prison. It is to be hoped it is the former. A review of sentencing is also promised and this must be welcomed. Any such review should look closely at whether the recent increased use of imprisonment really fulfils all the statutory purposes of sentencing and is what a properly informed public actually want.[1]

Our prison population is already the highest in Western Europe. As of 9^th February 2024, it was nearly 88,000 and predicted to rise by around 17,000 by 2026.[2] With 6,693 people serving a life sentence in England and Wales, we have more life sentence prisoners than nearly all of the 53 countries in the Council of Europe, second only to Turkey.[3] Are we somehow more criminal in nature than those in other countries? Or has something gone drastically wrong with our sentencing policy over the last two decades?

Public confidence in the criminal justice system

Prison sentences in England and Wales have been getting longer. In 2010, the average prison sentence was 13.7 months. By 2022, it was 56% higher at 21.4 months.[4] People serving mandatory life sentences on average now spend 18 years in prison, compared to 14 years in 2002.[5] All this is because successive Governments have been gradually increasing the minimum and maximum lengths of sentences. They have also been putting back the early release point for a wide range of determinate sentence prisoners from the half-way point of the sentence to the two-thirds point.

The defence is that this is necessary to protect the public and to punish offenders more severely, thereby ‘maintaining public confidence in the criminal justice system.’ The question, however, is whether the public are indeed more confident in a criminal justice system which imposes longer and longer prison sentences. And are the public, in any event, sufficiently informed about sentencing for any Government to rely on this as a basis for increasing the use of prison?

 

Public awareness about the use and effectiveness of imprisonment

Although a majority of the public appear to support increases in the severity of sentencing for the gravest criminal offences, a House of Commons Committee found that the media are the main source of information on sentencing for the public, meaning that public awareness tends to be driven by high profile and notorious cases in the news.[6] Legislating, therefore, in the aftermath of appalling cases like Worboys and Pitchfork, on grounds of ‘maintaining public confidence’, is not necessarily a reliable basis for changes to the parole system which will have the effect of keeping a much wider cohort of far less notorious prisoners in prison for longer[7].  Assessments of public confidence should sit above individual cases and be about the criminal justice system as a set of institutions behaving effectively, fairly, and representing the interests and values of the community[8].

Moreover, the Committee concluded that much of the public is not aware of the significant increases in sentence lengths over the last 10-20 years. As Sir Robert Neill, the Chair of that Committee, said on 6^th December 2023 at Second Reading of the Sentencing Bill[9]:

 …the public think sentences are much softer than they actually are. A majority of the people we spoke to actually thought that those sentences had got softer or lighter in recent years, whereas the evidence clearly demonstrates that exactly the reverse is true”

There is also a lack of public understanding about what a long prison sentence achieves in terms of helping to prevent crime in society. The reality is that there is no link between the length of such sentences and levels of crime.[10] Other than preventing individual offenders from offending while in prison, the greater use of imprisonment has no wider effect on reducing crime rates. Bishop James Jones’s Independent Commission found that it is the risk of getting caught and the certainty of punishment, not the severity of the sentence, which deters and reduces crime.[11]

 

The need for rehabilitation in prison

Long sentences of imprisonment do not prevent reoffending on release and longer periods in custody may in fact negatively affect reoffending rates.[12] As the Labour manifesto itself puts it, “…prisons are a breeding ground for more crime”. Overall, 38% of adults leaving prison reoffend within 12 months and this figure rises to 57% for those serving less than 12 months.[13] As John Major pointed out in a speech at the Old Bailey on 9^th May 2023, victims do get closure while the offender is in prison.[14] But they, and we, do not get closure if the offender reoffends when released. And most prisoners will be released at some point. So, victims, and all of us as taxpayers who are paying around £47,000 per prisoner per year have a strong interest in seeing offenders not just punished, but also rehabilitated.

A large number of people sent to prison are not violent or a danger to the public. In the year to June 2023, 58% of those sent to prison had committed a non-violent offence. Quoting Sir Robert Neill at Second Reading of the Sentencing Bill:

…many of the people we have in prison at the moment are there because of many failures in their lives. Those are sometimes self-inflicted, or sometimes a result of circumstances beyond their control that have led to poor mental health, illiteracy, poor education, alcohol and drug addiction, break-up in family relationships early in their lives and chaotic lives. All those things lead many of the people in prison – perhaps the majority – into prison…”

If the new Government are going to reduce reoffending on release, they need to give these prisoners the help they need in addressing their problems before they are released. But, critically, many of these prisoners should never have been sent to prison in the first place.

 

The need to reduce the use of imprisonment

What then do we need to do? In the words again of Sir Robert,

…It is not a question of harsher sentencing or softer sentencing. That is a sterile debate. What we really ought to be talking about is smarter sentencing. That means locking up dangerous people for as long as necessary…but it also means finding better and cleverer ways to deal with those who can be rehabilitated.”[15]

This means the greater use of non-custodial options which have significantly declined in recent years. For example, community sentences have more than halved in only a decade and suspended sentences account for only 4% of all sentences.[16] Courts are over 10 times more likely to impose a community sentence if a pre-sentence report (PSR) is done by probation staff, which provides an assessment of the nature and causes of a person’s behaviour, the risk they pose and to whom. Yet the use of Standard PSRs has fallen by 94% since 2012. We also need to move away from short sentences which are far less effective than community sentences at reducing reoffending.[17]

The words ‘community sentence’ did not feature in the new Government’s manifesto. Yet for evidence that community sentences work, then they should look at the Dutch example. The Dutch have reduced their prison population from 48,000 in 2007 to around 11,000 today. How have they achieved this?

A recent visit there by the CEOs of the Prison Reform Trust and the Howard League, led by the Bishop of Gloucester, discovered that three factors, among others, were significant. First, there is less political interference in sentencing than in the UK. Dutch Ministers do not involve themselves in individual cases or seek to gain public approval by legislating for tougher sentences on the back of hard cases. This means that public opinion, stirred up by media hype, plays little of no part in Dutch sentencing policy. Secondly, the overall length of prison sentences is much shorter than in the UK. The focus is on reintegration into the community. Thirdly, the Dutch manage to divert many offenders away from their criminal justice system by intervening at the initial arrest and prosecution stage with multi-disciplinary teams to examine a range of non-custodial disposals.

 

Conclusion

The mismanagement of sentencing policy is the cause of much of our current prisons’ crisis. In March 2024, there were fewer than 250 places left in men’s jails.[18] The last Government therefore initiated a desperate administrative scheme for releasing certain prisoners early, including those who had committed offences like aggravated burglary, assault, GBH and domestic violence. The Chief Inspector of Prisons said this scheme was so widely drawn that it could include violent offenders sentenced to less than four years who are potentially a risk to the public.[19] In the last fortnight, the Prison Governor’s Association has warned that our prisons are nearly full again.  There are rumours that, to deal with the latest crisis, the new Government will reduce the early release point for some prisoners from 50% to 40%.  If so, it must be accompanied by vigorous risk assessments and tailored licence conditions which correspond with the risks involved.

It is clear we need a long-term solution. Building more prisons to improve conditions is welcome, but it will not reduce reoffending. It would mean we will simply go on increasing our prison population year on year at huge public cost and with a tragic waste of human lives. ‘Maintaining public confidence’ is crucial but should not be used merely as a pretext for politicians wanting to appear tough on crime. A review of sentencing is indeed needed and the appointment as Prisons Minister of James Timpson, with his deep understanding of prisons issues and commitment to reform, is an inspired first step.  The Government’s big majority means it can and must be bold in focusing on ‘what works’ and demonstrating it to the public.

 

Lord Harry Carter of Haslemere is a cross-bench peer, former Government legal adviser and a Trustee of the Prison Reform Trust as well as a legal consultant at law firm Kingsley Napley

A shorter version of this article was published on 11/7/24 by Politics Home.