News that the UK continues to imprison more people than any other EU country, prompted me to look again at a report I wrote for the Criminal Justice Alliance in May 2012. Reducing the use of Imprisonment: What can we learn from Europe? was timed to give a Europhile justice secretary some ideas for cutting a custodial population he considered way too high. Ken Clarke was fired a few months later. With his successor but one a Europhobe who doesn’t think we have too many prisoners, the chances of any of the lessons being taken on board are probably weaker now (though there must be a fair chance that Mr Gove will be on the back benches with Mr Clarke on June 24th).
The report actually focussed mainly on Germany and the Netherlands, countries with much lower rates of imprisonment than the UK and where following rises in the prison population in the 1990’s, the numbers in prison fell in the 2000’s- unlike England and Wales where the prison population has- from a higher baseline- pretty well continued to climb and climb.
The report identified a range of factors which might help explain why European countries lock up fewer people than the UK. A lower crime rate was, surprisingly perhaps, not one of them. Rather the way the criminal justice is organised more plausibly accounts for the difference.
For one thing criminal prosecution is not available for children under 15 in Scandinavia, 14 in Germany and 12 in Holland and young people aged 18-21 tend to be treated more leniently than older adults. For all age groups, prosecutors in much of Europe play a much stronger role in settling cases outside court than they do here, exercising quasi- judicial discretion to deal with quite serious cases by way of fines or compensation, or participation in mediation and reconciliation between offender and victim. In the Netherlands prosecutors can impose and oversee Community Service, while in Germany they can dismiss charges if the accused makes a serious attempt to reach a mediated agreement with the victim. About half of victim offender mediation cases in Germany relate to a violent offence. More measures tend to be available in Europe for dealing with people with mental health and addiction problems outside the criminal justice and mainstream prison systems.
When cases do go to court, for certain common crimes such as theft, burglary and certain low level drug offences, the maximum penalties are higher in England and Wales than in much of Western Europe. Mandatory minimum sentences, indeterminate sentences and life sentences are also very much less commonly used on the continent.
The report highlighted some evidence that courts exercise greater restraint in remanding defendants to custody (in Germany but not the Netherlands), use certain community based sentences as genuine alternatives to custody and adopt a more generous approach to those who fail to comply with all of the requirements.
Underpinning the milder approach are a greater role played by academic and other nongovernmental expert organisations in the formulation of criminal policy and the ability of both politicians and courts to withstand pressure from media and populist campaigns for tougher sentencing. The Chair of the Sentencing Council said last week that they have a particular problem with tabloid newspapers, which have an agenda of their own in relation to criminal sentencing and criminal justice generally. Some European countries at least do not seem to share that problem.
Since the report was published, England and Wales has seen some progress restricting remands to custody, taking account of the developing maturity of young adults and expanding opportunities for Restorative Justice. But too many minor cases go to court unnecessarily and sentencing is still too harsh and complex. The Justice Committee heard last week that there are some 1,300 pages of legislation currently in force in relation to sentencing procedure and that almost a third of sentencing appeals in the Court of Appeal include an unlawful element to the sentence.
There’s a growing recognition that the Government cannot realistically achieve its prison reform plans without addressing what the UN last year called “over incarceration and overcrowding’. Europe has plenty to teach us – it’s a shame the Justice Secretary doesn’t want to go there.