Council of Despair?

How can we reduce the number of prisoners in England and Wales?    The government’s view seems to be that the 86,000 men women and children behind bars “is the result of the sentencing approach taken by successive Governments of different colours and there is no way to arbitrarily reduce the prison population”. Behind the scenes, Ministers who are not only responsible for sentencing policy but for the creaking prison and probation services which give effect to it , may be less sanguine. Privately they may well share the view of former Lord Chief Justice Woolf that “with the situation in our prisons today, we cannot afford to have further sentencing inflation.”

If ministers do want to at least limit the growth of prison, they could well ask about the role of the Sentencing Council- the body which for the last six years has been issuing guidelines to courts about the appropriate levels of penalty for particular offences. In a new report for Transform Justice – The Sentencing Council for England and Wales: brake or accelerator on the use of prison? - I look at the impact the Council has had on prison numbers and what more it could do to make sentencing more effective.

It’s true that the prison population has been fairly stable since 2010, but with a 25% fall in the numbers sentenced for serious crimes,  we should really have seen prison numbers go down . The reason they haven’t is that average sentence lengths have gone up for almost all types of crime. While there may be several culprits in all this, the Council has a case to answer. The Council’s own evaluations of the effect of its guidelines on assault and on burglary found that sentencing became more severe than it had expected. Guidelines may have stifled creativity by focussing courts’ attention more on aggravating factors than on aspects of a person’s circumstances which may reduce their culpability and make their sentence capable of being suspended.

The report makes a series of recommendations designed to encourage the Council to take a less conservative approach to its work. It could pay much more attention to the costs and effectiveness of sentences when producing guidelines, for example encouraging courts to go below the usual range if it is in the interests of problem solving or rehabilitation. Guidelines on the distinctive approach to be used when sentencing women, young adults, older offenders and offenders with mental health problems are sorely needed.

The Council – like all arm’s length bodies – should really have been subject to a review by the Government. But it has been exempt because of “its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”. The nature of that balance was deeply contested when Lord Carter first proposed a Sentencing Commission back in 2007. MP’s and particularly judges were alarmed that over prescriptive guidelines produced with more than half an eye on the size of the prison population could unreasonably limit judicial discretion. 

Given the current prison crisis, the Transform Justice report argues that it’s time to open up this question again.  The Justice Committee which has previously argued for a much reduced prison population and reinvestment of resources into prevention and rehabilitation, should establish an inquiry into the role of the Council and revisit the desirability of linking guidelines to resources.