More Council of Despair ?

All’s not well at the Sentencing Council. Chairman Lord Justice Treacy has had to remind judges and magistrates to use suspended prison sentences only in the most serious cases which would otherwise result in custody – and not simply as a way of giving lower level community penalties more teeth.

Treacy – and no doubt the Ministry of Justice- fear that if courts continue to ignore last year’s guideline on the imposition of custody but do pay heed to a forthcoming one on breach, the result will be “a high volume of activated suspended sentences”.  That means more pressure on the beleaguered prison system which has reported record levels of violence and self-harm in 2017.

More than one in ten suspended sentences are terminated early for a failure to comply with requirements and 18% for a further offence. While it’s not known how many of these cases currently go to jail, the new guideline is expected to urge activation of the custodial sentence unless it would be unjust in all the circumstances. The draft of the breach guideline tells courts to remember “that the court imposing the original sentence determined that a custodial sentence was appropriate in the original case”.  The problem is that in many cases they haven’t and it wasn’t.

The Council and Probation service have cooked up a plan to stop suspended sentences being recommended in Pre-Sentence Reports.(PSRs)  They’re proposed in about a third of PSRs and courts  accept two thirds of the proposals. What will happen now?  While the hope is that most suspended sentences will be replaced by community orders, there’s a risk that some additional custody may be imposed or even proposed.    

Such unintended consequences would be nothing new for the Council. An independent review of its work by eminent criminologist Sir Anthony Bottoms has confirmed that two major guidelines – on assaults and burglary - have led to unexpected increases in the severity of sentencing,  "which is bound to create anxiety among civil liberties groups”. The review is also critical of the Council’s failure, when drafting guidelines, to consider the relative cost and effectiveness of prison and other sentences in reducing re-offending.

The review makes largely technical recommendations about how the Council should both undertake and communicate its work in the future. There are good ideas here - a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?" because sentencers may forget to do so. 

Not surprisingly the Council has rejected the idea of opening itself up to a television documentary but it has promised to foster better links with academics, review research on the effectiveness of sentencing and engage more with stakeholders other than sentencers. An external agency will be appointed to examine issues of public confidence in sentencing. 

Bottoms echoes several of the findings in the report I wrote for Transform Justice in 2016 -The Sentencing Council for England and Wales- Brake or Accelerator on the Use of Prison. He argues that a preoccupation with the prison population has blunted the impact of the Transform Justice report because “the current reality is that it would be politically very difficult for the Council, even if it wished to do so, to argue for a step change in the use of prison.” That may be true but does not excuse the fact that a body which could have curbed the unnecessary use of prison has largely failed to do so. 

Actually, noises coming from the Ministry of Justice are more promising than for some time. Prisons minister Rory Stewart told Parliament this week that he will be looking at what more the Government  can do to emphasise ​that a custodial sentence in the short term should be a final resort. He accepted there is a lot to learn from Scotland which has introduced a presumption against short prison sentences. Maybe the tide is finally turning?

Deja Vu : Can the serious violence strategy learn from the past?

Back in 2002, when I was member of the Youth Justice Board, then Chair Lord Warner opened one of our meetings by saying he expected we were all considering resigning. The Prime Minister had called for young offenders to be taken – it might have been swept - off the streets in order to tackle an upsurge in mobile phone robberies. Our advice hadn’t been sought and Tony Blair’s approach didn’t sit well with our efforts to reduce the use of custody for young people. Warner persuaded us not to resign- every crisis is an opportunity was the line I think. We were vindicated in part by the fact that the Street Crime Initiative- developed in a series of COBRA meetings normally reserved for national emergencies – turned out to include prevention and treatment measures alongside enforcement. But at the outset and at its heart, was tough on crime rather than on the causes. Even Lord Woolf, the normally liberal Chief Justice was moved to issue a draconian guideline judgement on street robbery in its wake.   

Perhaps my experience back then, accounts for an initially positive reaction on my part to Amber Rudd’s Serious Violence Strategy. Much of the analysis of the problem which has come into tragic focus in recent weeks is basically sound. The Home Office may be a graveyard of liberal thinking, but this Home Secretary agrees with academics that “big shifts in crime trends tend to be driven by factors outside of the police’s control – like drug trends and markets, changes in housing and vehicle security.” Her approach to serious violence “is not solely focused on law enforcement, very important as that is, but depends on partnerships across a number of sectors such as education, health, social services, housing, youth services, and victim services.” So far so good.

The strategy recognises that key areas for reducing violence include “socio-economic improvements, strengthening ties to family, school and non-violent norms.” And for young people, early interventions are effective in reducing violent behaviour and “punitive activity is less effective than preventative support”. In reducing re-offending for all ages “Interventions focused on the establishment of cognitive or character-based skills and/or non-violent norms seem to be more effective than punitive interventions.” The strategy confirms too that “changes in the level of stop and search have only minimal effects – at best – on trends in violent crime, even when measured at the local level”. All this seems sensible and consistent with evidence. Ms Rudd even plans to hold an International Violent Crime Symposium to hear from international experts (yes experts) if she’s on the right track.

Where the strategy stops short of course is in putting in place the measures needed to meet the problems it identifies.

Take drugs. The strategy points out that drugs can drive up serious violence “indirectly, either by fuelling robberies to service drug dependence, or through violent competition between drug sellers. Grievances in illicit drug markets cannot be settled through legal channels, so participants may settle them violently. This can lead to escalation as dealers seek to portray themselves as excessively violent, and carry weapons, so as not to be cheated in the market.”  Is there the slightest hint of finding different ways of regulating at least some drugs so that at least some disputes might be more peacefully resolved? No.

As for the much praised early intervention, a series of small scale targeted funding schemes hardly begin to compensate for the under resourcing of mainstream provision – whether mental health treatment or youth clubs, inflicted in the name of austerity. The strategy promotes diversion of various kinds but to what? The small beer offered here will continue to leave thousands of young people at risk of becoming victims or perpetrators of violence.

Police numbers are of course the strategy’s missing link. Like it or not the Street Crime Initiative did appear to show that “increased police resources do in fact lead to lower crime”. This strategy extols the virtues of hot spot policing but shifting onto PCCs responsibility for providing officers to do it, is simply bad faith.

On courts, probation and prisons, the strategy only goes so far.  We can count ourselves fortunate that tougher sentencing for once takes a back seat. Given the state of the prison system, presumably the MoJ put their foot down about that. It’s good that violence in prison merits a place in the strategy and among the alphabet soup of initiatives to reduce it, the idea of trauma informed approaches looks a particularly good one.

But given that much serious violence is carried out by persistent offenders, why no mention of the cross-government group of senior Ministers, announced last month, which will work across all relevant departments to reduce re-offending. Presumably because it’s a MOJ rather than Home Office initiative. The latter will drive this strategy through a new Serious Violence Taskforce. But there will surely be benefits in David Gauke’s approach of targeting “prisoners and ex-offenders with the support they need to find a job, a home, to get help with debt, or to get treatment for a drug addiction or, a mental health issue”. Proper resettlement should be more central to what’s being proposed.