Sentencing Reform - A Little Less Conversation, A Little More Action Please

 

 The Howard League deserve credit for persuading five retired senior Judges to argue publicly that the sentence inflation which has brought the prison system to its knees must be brought under control and for a reversal in the trend of keeping people in prison for longer simply to punish them more severely. If implemented, their recommendations would help chart a more sustainable future for prisons and a more effective approach to reducing re-offending.

For me, their warning that without urgent remedial action, “this country will soon experience US-style mass incarceration” is a bit overblown. America’s 1.9 million prisoners represents a rate of imprisonment (531 per 100,000) which is 3.5 higher than ours (146).  

But the four former Chief Justices and one lead judge on criminal justice are surely right to urge a return to more modest proportionate sentences across the board to bring England and Wales into line with Western European norms.

A question nagged away as I read the paper though. While in their various senior roles in the judiciary, could and should the authors not have done more themselves to curb the trends they now decry? Is this not another frustrating example of Post Retirement Enlightenment Syndrome – the phrase originally coined to describe the experience of having politicians “come out” in favour of drug policy reform only after ceasing to occupy positions in which they might have actually carried it out.

The paper lays the blame for sentence inflation firmly at the door of government and the legislature. But can it really be the case that the rise since 2010 in the rate of custodial sentencing from a quarter of the more serious cases to a third; and the increase in the average length of prison terms from 14 to 20 months is down to new laws or the will of parliament?

It’s possible that harsher sentencing reflects more serious offending, or offenders with more previous convictions. But an inconvenient truth may be that the independent judges and magistrates who impose criminal sentences themselves have played a significant role in sentence inflation, whether deliberate or inadvertent.  It may be that it's guideline judgments of the Court of Appeal, rulings on unduly lenient sentences and in particular sentencing guidelines which have served to push up the going rate of punishment- an increase in sentence lengths which means that the people released early from prison this week after serving 40% of their sentence will have on average served two weeks longer in prison than those who served 50% of their sentence in 2014. 

Take the guidelines which are produced by the Sentencing Council, which is fundamentally a judicial body. The sitting Chief Justice is the President of the Council and Lord Justice Leveson, one of the authors of the critique its first Chair. A review of its work in 2017 found that two of its first major guidelines resulted in unexpected increases in sentence severity.

In their Howard League critique, the Judges say the Sentencing Council’s role is to ensure a proportionate structure for sentencing, meaning that the increase in minimum sentences for one crime will necessarily have a knock-on effect across the board. But why should longer sentences for homicide or sexual offences require a harsher approach to theft or burglary?

In fact most sentencing guidelines have sought to maintain the existing practice of the courts rather than toughen it up but the increase in sentence severity for most categories of crime since 2010 suggest that they have in large part failed, too often acting as an accelerator rather than brake on the use of prison. 

I’d like to see current sentencing levels recalibrated downwards on the basis of effectiveness and cost - one of the factors the Council must consider. So too it seems do the retired Judges. But the Council has been unwilling to do it.

Indeed, after a consultation, in 2021 the Council concluded that it was not its role to reverse any observed trends in the prison population. They argued that “were it to seek, artificially and unilaterally, to raise or lower sentence levels without good cause – whether in general or for specific offences – it would rapidly lose the confidence of sentencers, a broad range of public opinion, and no doubt a significant body of opinion within Parliament.” Surely the Judges’ critique lays out a very good cause.

The retired Judges call for “an honest conversation about what custodial sentences can and cannot achieve and their human and financial costs,” mirroring a call by the Justice Committee in the last Parliament who concluded that “public debate on sentencing is stuck in a dysfunctional and reactive cycle”.  In his latest Annual Report, the Chief Inspector of Prisons argued "there is a pressing need for a much bigger conversation about who we are sending to prison, for how long."

This is another area where the Sentencing Council has been found wanting. In 2011, Lord Justice Leveson wrote in its first Annual Report that it had a significant opportunity to contribute … to wider public understanding of issues of sentencing.” He and his co-authors now recognise that 14 years on “the public has a poor understanding of sentencing, receiving most of their information from media reports on individual catastrophic cases”.

A better level of debate is of course needed – and to my mind one that is more adult than simply distinguishing between people we are cross with and those we are scared of, as a former Lord Chancellor frames it.  

But ensuring a constructive and viable way forward requires action, not just words.

 

The Fire Next Time?

 

As wide-ranging collective failures to prioritise fire safety are laid bare in the report into the Grenfell Tower tragedy, what’s being done in a high risk area where central government has sole responsibility- prisons? 

As the Prison Service’s Instruction to its staff makes clear “a  fire occurring anywhere within custodial premises could have serious consequences in terms of life, safety, business continuity and security”.

And many do occur. Latest Home Office data show that in the last financial year, Fire and Rescue Services attended 1,892 incidents in prisons and young offender units in England-an 82% increase on 2022-3.

Trends are broadly consistent with figures released by the Justice Ministry showing that including prisons in Wales, the number of fires in cells rose from 1,410 in 2022 to 2,287 in 2023- up 62%.

While there were only three fire related fatalities in prisons between 2016-17 and 2022-3 (the latest period for which data is available), there were 887 non-fatal casualties over the seven year period. This category comprises a range of cases needing precautionary checks as well as hospital admissions.

Of concern is the fact that the Home Office data show that in more than four out of five incidents attended by Fire Services last year, there was no safety system in place- such as sprinklers or misting.

The Prison Service has embarked on a much needed Fire Safety Improvement Programme to increase detection and fire suppression measures in its establishments. The aim is to bring all prison accommodation up to modern fire safety standards by the end of 2027, a commitment made to the Crown Premises Fire Safety Inspectorate (CPFSI) who enforce the standards in government buildings.

The last HMPPS annual report said 4,000 places were brought up to par in 2022-3, leaving 26,000 to work on. In March this year, 23,500 still lacked automatic fire detection suggesting only 2,500 cells were upgraded in 2023-4.  At that rate of progress, HMPPS will struggle to complete the work by 2030 let alone 2027.

Troublingly, the latest HMPPS annual report also said that “prison capacity pressures have restricted our ability to take places out of use for refurbishment and compliance works”. Pressed by MPs on the Justice Committee, then Prisons Minister Ed Argar denied in March this year that any essential works necessary to address critical risks to life had been paused. But there has been slippage.

The Independent Monitoring Board at HMP Leicester said in their report on the year to January 2024 that “the project to complete the fire safety and other alarm systems has been further delayed and is still not complete after three and a half years”.  The delays may not of course have been to prevent loss of capacity. At HMP Lewes, there were problems relating to “the age of the building and the state of the electrical system, with cost and compatibility issues.” But its not inconceivable that the desperate need for cell space has led to some improvement work being postponed.

So what should the new government do to manage fire risks in prison more effectively?

First and most important is to ensure that the funds are available to maintain the programme of fire safety work to meet the 2027 deadline if at all possible.

Second, they should take a look at the adequacy of the CPFSI, which has a staff of 15 to enforce standards in 16,000 government buildings. The fact that it has only just published its annual report for 2022-23  suggests it may be struggling.

Third, given that prisons pose by far the highest risk among public buildings, should HM Inspectorate of Prisons (HMIP) look at fire safety issues during their visits to places of detention?. Their report on HMP Chelmsford published in May 2024 fails to mention that the prison was subject to an enforcement notice which was in force at the time of their inspection visit in February, according to the CPFSI register at least.

Three other public prisons and two private ones also had notices in force in February 2024 when the register was last updated. 

Fire safety is something which Ofsted look at in their inspections of Secure Childrens Homes, criticising the obstruction of a fire exit route in one. Why shouldn’t HMIP?

There are practical steps which the prison service and individual prisons should take to reduce risks. Argar promised before the election that an ignition-free Safer Vape Pen will replace the existing product, which is apparently the source of approximately 80 per cent of fires set in prisons. 

But there are structural measures needed as well. The Grenfell report recommends the government bring responsibility for the functions relating to fire safety currently exercised by the Housing Department, the Home Office and the Department for Business and Trade into one department under a single Secretary of State.

Clearer lines of accountability and scrutiny are needed to promote fire safety in prison too.

Capacity Crisis hits Women’s Prisons

 

While the capacity crisis has been most acute in men’s prisons, it’s having a negative impact on women too. The local watchdog at Downview, a closed prison for sentenced women in Surrey report today that while numbers there dipped below 200 during the pandemic, in the year to May 2024 at times they reached the full capacity of 356. The prison has seen increases in assaults, self-harm and use of force, expected with more prisoners but troubling none the less.      

National pressures have reduced the prison’s discretion about who to accept on transfer from other jails creating “a frequently complex mix of women” with significant mental health needs, drug-related issues and problems associating with other prisoners.

Some women arrived with very short sentences left to serve and family based far away. They commented that transferring is as bad as being punished, as they usually lose work or education and, therefore, income, for several weeks.  

Others were acutely mentally unwell and placed in the Segregation Unit where, “staff faced severe aggression and repeated assaults; flooding and destruction of cells and furniture; bodily fluids thrown at them; unrelenting screaming and shouting (including racial abuse aimed at staff and other prisoners); and refusal to eat or wear clothes.”  Some were transferred from prisons that had 24-hour healthcare and a larger mental health team than Downview.

Many of these women should clearly be in a healthcare setting rather than prison. Others do not need to be in prison at all. The IMB report on one woman transferred to Downview on recall for just 12 weeks. The recall was for a failure to attend her probation appointment 20 years ago. She had not committed any further offences in that time and was now a mother, with school-age children and secure employment. What on earth was going on here?