Courting Trouble

 

The prison population projections out today are produced to aid policy development, capacity planning and resource allocation within the Ministry of Justice (MoJ) and His Majesty’s Prison and Probation Service (HMPPS). Odd then that they take no account of the Sentencing Bill that will almost certainly become law early next year and start to have a downward impact on prison numbers as soon as it comes into force.

The extent of that impact is uncertain but suspending most short sentences, releasing most prisoners a third of their way into their sentence and limiting periods of recall are bound to have some effect. So the headline estimate that prison numbers will increase to between 98,000 and 103,600 by March 2030, with a central estimate of 100,600 will be way off the mark.

More understandably, the projections don’t take account of government policies in response to the Independent Review into Criminal Courts, announced in outline (but no more) this week. Should they reach the statute book what impact on prison numbers is likely to result from increasing Magistrates’ courts sentencing powers to 18 or even 24 months and the new Judge only Crown court arrangements for those facing jail terms of three years or less if convicted?

On the face of it keeping more cases in the lower reaches of the court system should lead to reductions in the custody rate and in the average length of prison terms. Swifter courts could reduce the time defendants spend on remand too.

But as things stand only just over half of those sentenced in the Crown Court for either way offences go to prison, and the average sentence length is about two years. Maybe the new arrangements will produce a more rather than less punitive approach.

Commentators have suggested that speedier courts could mean an  uptick in perpetrators sentenced under the reforms leaving prisons unable to cope; or that the three year limit may create a perverse incentive for the defence to characterise alleged offences as more serious to get the case before a jury. Greater sentencing powers for magistrates may lead them to impose jail terms just over the 12 month threshold below which they’ll be expected to suspend them.

Presumably when legislation is introduced, an impact assessment will be published based on modelling of various scenarios. It seems surprising that for now all we’ve got to go on is a short statement in parliament, a letter to stakeholders and a press release.

Should the court reforms come into effect, one body that could play a crucial role in determining outcomes is the Sentencing Council who will need to prepare fresh allocation guidelines. As the Lady Chief Justice told MPs last month “if the Gauke reforms and Leveson come in, it is more important now than it has ever been”.

But she thought the Justice Committee should know that the mood in the Sentencing Council is pretty bleak. There is deep uncertainty hanging over its head. Her view is that clauses in the Sentencing Bill designed to increase democratic oversight have the potential significantly to undermine confidence in and the independence of the Council.

This may be just one example of a failure to properly consider the interactions between the reviews of sentencing and of courts.  A comprehensive and properly reasoned response to both – and to Anne Owers review of prison capacity -is surely not too much to ask.