Six Months to Go

Last January, confronted with the disgusting conditions at HMP Liverpool, Prisons Minister Rory Stewart told MPs that the neglect of basics in prisons had resulted from too much talk “about grand issues of sentencing policy, reoffending and the policy context”.  A year on, Stewart feels compelled to indulge in just that talk himself, telling the Telegraph he is “looking very carefully” at  imposing a new legal presumption on English and Welsh courts against sentences under six months - and potentially longer. 

Stewart has come round to the view expressed by the Council of Europe after their 2016 visit to the UK that prison reform will be unattainable without concrete steps to significantly reduce the current prison population.  Also of course, many of the ten prisons on which his own ministerial performance will be judged in the summer have large numbers of short term prisoners. The case for dealing with most of them in the community has been very well made by the Revolving Doors Short Sighted campaign.  

So what happens now?   First, Stewart and boss David Gauke will have to persuade government colleagues to legislate for the necessary changes, and MPs to back them. In 2011, five newly elected Tory MPs wrote “It has been argued in the past that instead of short prison sentences, there should be a presumption against sending criminals to prison. We should take exactly the opposite approach and ensure that persistent offenders are imprisoned for prolonged periods of time”. All those expressing that view are current or former ministers. Stewart will have to win them over and hope for a following wind from Labour. It was Ed Miliband’s opportunistic attack on Ken Clarke’s progressive penal policy that killed of the last serious effort to reduce prison numbers eight years ago.

Second the Ministry of Justice will need to find the technical mechanisms to bring about the reduction of short sentences in practice. In Scotland, since February 2011 a court must not pass a sentence of imprisonment for a term of 3 months or less unless it considers that no other method of dealing with the person is appropriate. But five years on, in 2016/17, almost three and a half thousand people received such sentences including 750 for shoplifting and 689 for breach of the peace.   That year, these very short sentences still accounted for 28% of prison sentences compared to 34% before the presumption against their use. The overall number of custodial sentences has fallen from about 15000 to 12000 but this reflects a fall in court cases.  Yes, community sentences have risen, but many have probably replaced fines rather than custody. 

So Scotland may not provide the best model. The MoJ should look at other approaches too. One is to be more explicit about how serious an offence must be before courts can impose a prison term. There is no general definition of where the so-called custody threshold lies. While Sentencing Guidelines say that  “the clear intention … is to reserve prison as a punishment for the most serious offences”, almost a thousand people were in prison at the end of March last year for shoplifting, 25 for theft of a bicycle and 11 for possession of cannabis. A higher hurdle is surely needed.  

Another problem is that courts must regard an offence as more serious if committed by someone with relevant previous convictions. Modifying this requirement so that courts may – but do not have to – punish repeat offenders more harshly is another route to consider.

A further option would be to encourage more suspended sentences. Currently, if the court imposes a term of imprisonment of between 14 days and 2 years, it may suspend the sentence for between 6 months and 2 years. Perhaps replace “may” with “must” other than where the interests of justice require immediate custody?  

I’d also like to see reinstated the principle that courts should take overcrowding and other painful realities of prison life into account when determining the punitive weight of a sentence.

A third task for the MoJ is to ensure that a wide range of properly resourced community-based measures are available and their availability communicated to courts. Problem- solving courts seem to have faded as a policy idea but if short sentences are to go, more, and more thorough, pre- sentence reports will be needed. So too perhaps a more systematic role for courts in reviewing the progress of sentences. The new probation contracts shortly to be let must take account of the MoJ' s new sentencing policy and provide resources to match it.

Earlier this week, the Chief Inspector of Probation wrote to the Justice Committee that  “with Brexit and other uncertainties, the proposed transition to new probation arrangements is not necessarily certain”.   Still less certain to be taken forward  perhaps are Mr Stewart’s grand issues of sentencing. They deserve to be. As was pointed out last year “Prison can become a ripe place for criminal education, serious and organised crime, and radicalisation, rather than rehabilitation”. By whom? No less than the National Police Chiefs Council.