Review of the Year (1) : Sentencing and the Prison Population

The prison population ends the year more than two and a half thousand- one Titan prison worth -lower than it started. That’s partly down to January's revised procedure for Home Detention Curfew. More than 3,000 prisoners were at home on electronic tags last week, 40% more than 12 months ago.  The 3% fall in prison numbers (its almost 6% for women) also reflects a decline in those formally dealt with by the criminal justice system. These have fallen to a record low, with 1.61 million individuals prosecuted or given an out of court disposal in the year ending June 2018.

Falling prison rolls don’t mean courts have become more lenient. The custody rate for indictable offences increased by one percentage point, over the year to June, to 32%- it was 24% in 2010. Average sentence lengths have continued to rise, reaching more than 17 months. The average was 12.6 months a ten years ago. Offenders are more likely to receive an immediate custodial sentence for a knife and offensive weapon offence.

Tougher sentences may mean courts have been dealing with more serious or prolific offenders than previously, but they may also reflect the impact of sentencing guidelines. An independent review of the Sentencing Council published in April confirmed that two major guidelines -on burglary and assault- “have now been shown to have resulted in some unexpected increases in sentencing” which “is bound to create anxiety among civil liberties groups and some criminal justice organisations”. Since then the Council has found unanticipated increases for sexual assault and supplying class A drugs following the introduction of its guidelines -but some decreases or no impact on other offences. It's too early to know about the impact of its more recent guidelines, including the one on breach offences which risks a greater use of prison for offenders who fail to comply with alternatives.  

For offences which can only be dealt with by Magistrates- the least serious to come before the courts- the custody rate fell in the year to June 2018 (from 1.6% to 1.5%). Sentences of six months or less also fell very slightly as a proportion of all custodial sentences but still represent more than half of those imposed over the year. 2018 has seen a growing acceptance of the case for more radical steps to reduce short sentences thanks to the Revolving Doors shortsighted campaign whose main messages seem to have been accepted by ministers. Action has so far  been limited but there is surely scope for it. Of the 5,342 prisoners serving jail terms of less than 12 months at the end of March this year, 30% were for theft -including 985 cases of shoplifting (and 25 of theft or unauthorised taking of a pedal cycle). 50 people each day are sent to prison for a period of a month or less. 

Replacing all short sentences would have a welcome but limited impact on the overall size of the prison population which is largely driven by sentence lengths and release decisions. There is a risk that  changes to the Parole system introduced in the wake of the Worboys case could see serious offenders spending longer inside whether they need to or not. 

In the longer term, the technical job of sentencing should get easier if the Law Commission's consolidated Code is put into law.  Its very troubling that the Lord Chief Justice should report that "on too many occasions, an unlawful sentence is imposed in the Crown Court & the mistake only noticed by a lawyer in the Court of Appeal Office when an appeal (on other grounds) is lodged."

Politically, prisons Minister Rory Stewart warned in June that “as we give more voice to citizens and to victims, almost inevitably we are going to face pressure…for longer and more brutal sentences”.  The Sentencing Council has appointed an external agency to examine issues of public confidence in sentencing, which will hopefully help find ways of avoiding Mr Stewart’s dystopian future.