Sunday 9 February 2020

Process or Content? Why the Royal Commission should look at Sentencing and Prisons.


Unless I’ve missed it, the government is yet to clarify the scope of the proposed Royal Commission which will review and improve the efficiency and effectiveness of the criminal justice process. No one seems sure what lies behind the idea for the Commission, although the Prime Minister has said through it, his government will spare no effort in addressing the profound concerns of millions about the state of our criminal justice system. But what are those concerns and what will be covered?

“Process” suggests the review will look at least at police powers, the role of prosecutors and the way courts go about convicting the guilty and acquitting the innocent.  But what about the two areas which are currently near the top of the domestic agenda- sentencing, particularly for serious offenders and the way sentences are implemented through imprisonment, probation supervision and parole.  

Statutory instruments have already been used to toughen punishment for serious sexual and violent offenders sentenced from April and an emergency bill to amend release arrangements for terrorist prisoners will be put before parliament this week. 

But these look like first steps. If, as former Chief Justice Lord Judge told the Lords last month, the ​Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, changes should not be made through a piecemeal series of secondary legislation as thinking develops. A much more measured and coherent approach is surely needed instead.  A White Paper has been promised but something more profound and less partisan might find consensus on what are inevitably controversial issues.

A recommendation made in a 2014 British Academy report to review sentence lengths in relation to those of other European countries has probably not aged well.  But the Academy’s conclusion that policy making needs to take place in a longer-term context, with greater separation of sentencing policy from the political process is still surely correct.   

Similarly, on prisons, probation and parole, there is a risk of a series of tactical responses to problems as they arise without any strategic thinking about the purpose and structure of penal system. We might see the creation of “one terrorist prisoner management service, covering individualised treatment programmes, risk assessment, release decisions and resettlement supervision” as proposed last week by Ian Acheson, who reviewed Islamist extremism in prisons, probation and youth justice back in 2016. Or the transfer of responsibility for the penal system as a whole from the Ministry of Justice back to the Home Office as recommended by Policy Exchange – something possibly made more likely by the National Audit Office’s dispiriting report on the MOJ’s recent efforts to improve the prison estate.

There are arguments for such changes- not strong in my view- but they deserve to be considered in as politically neutral space as possible, as part of a comprehensive assessment of prison and alternatives to it and their links with wider areas such as health, education, employment and social services. Ex-jail governor John Podmore argued last week that two thirds of people going to prison need social inclusion not security. But such a change of emphasis will only come about through some kind of external pressure of the kind that can emerge from a Royal Commission or similar.

There are risks of course. The 1964 Royal Commission on the Penal System in England and Wales was brought to an early close as it was felt that the time was “not opportune for a single review of the penal system” that could draw clear and robust conclusions and recommendations. But maybe its time to start it up again.
       



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