Sentence Planning: Why David Gauke Deserves Two Cheers

No one was quite sure what to expect from David Gauke this morning. Would we get some reheated (or under cooked) announcements to distract from the latest Ministry of Justice fiasco- in this case the Working Links probation company? Or was the Justice Secretary out and about as part of a government strategy to show that away from the joy of Brexit, domestic policy making is proceeding apace across Whitehall?

As it turns out, on this occasion at least, such cynicism was ill founded. It was to my mind the best ministerial speech on sentencing since Ken Clarke spoke at King’s College just after the 2010 election. Then, Clarke expressed incredulity that the prison population had doubled in the twenty years since he had previously held responsibility for it.

There were echoes of 2010 today. Clarke thought it “too simple just to argue about tougher sentencing or softer sentencing …  but I believe in intelligent sentencing,seeking to give better value for money and the effective protection that people want”. Gauke retains the sentiment but calls it smart.

The Justice Secretary staked out a much more constructive way forward on the use of imprisonment than any of the four Justice Secretaries who’ve followed Clarke; by urging caution in continuing to increase sentence length as a response to concerns over crime; by arguing for switching resource away from ineffective prison sentences and into probation; and by starting  “a fresh conversation, a national debate about what justice, including punishment, should look like for our modern times”.

Since Clarke’s departure, policy has sought to focus much more on the practice of imprisonment than its use- with disastrous consequences. Prime Minister David Cameron didn’t want to “waste too much energy discussing big existential questions about the prison population.” As Justice Secretary, Liz Truss tried to paint England and Wales as “fairly mid table when it comes to custodial sentences” in comparison with other countries and argued that sentence inflation was limited to sexual and violent crimes.

Gauke rightly told his audience today that we are an international and historical outlier in terms of our prison population and that it’s not just about violent or sexual offences. “Prison sentences, in general, have been getting longer”.

So in terms of tone, his speech does mark an important break with recent history. Cameron described the idea that we could somehow release tens of thousands of prisoners with no adverse consequences as nonsense. Gauke sees “a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place, a robust community order regime”. 46,000 such sentences were imposed in the year to June 2018-more than half of all the prison terms passed.

Cameron promised you wouldn’t hear him “arguing to neuter judges’ sentencing powers or reduce their ability to use prison when it is required.” But that’s just what Gauke is planning.

Or is he? In the Q &A that followed the speech, it became clear that little has been decided in government but is rather being explored. As I have argued earlier there are difficult technical questions about achieving reductions in the use of short sentences. It’s the details that did for Ken Clarke’s efforts to reduce prison numbers – in his case the attempt to increase sentence discounts for early guilty pleas. So any penal reformers’ prosecco needs to stay corked for the moment.

The failings of the part privatised probation system will do little to assist Gauke’s ambitions, although the long-awaited arrival of GPS tracking- first announced as “prisons without bars” by David Blunkett in 2004- should increase options for monitoring community- based supervision. But it’s hard to see his promised shift in resources from prison to probation until the new services and structure come into place in 2021.

In the meantime, to build on his speech today, he should establish a review of sentencing as part of the national debate he wants about punishment in the modern age. Perhaps he could ask Justin Russell to lead it? 

He’s the senior MoJ mandarin who Gauke wants to succeed Glenys Stacey as Chief Inspector of Probation. Several people I spoke to at the speech this morning were uncomfortable with that appointment.   The independence of HMI Probation is of paramount importance and it simply doesn’t look right for an official who has been responsible for probation reform to lead the organisation. 

The Wrong Trousers: Why The Tailored Review of the Sentencing Council Doesn't Measure Up

This week the Government published reports about four important organisations sponsored by the Ministry of Justice- the Law Commission, Criminal Cases Review Commission, Independent Advisory Panel on Deaths in Custody and the Sentencing Council. The reports are the fruits of so-called “tailored reviews”, which departments must undertake on all their arms- length bodies once every parliament. The reviews look at whether the outfits are still needed and how well they are working.

Up to now, the Sentencing Council has escaped the attentions of any government scrutiny because of its “unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”.  Such a role should arguably call for more not less examination, but anyway eight years on, there’s been a review of sorts. Sadly, it falls far short of what’s needed.

The review should have started by looking at what’s happened to sentencing since the Council started work in 2010. Eight years ago, if you were convicted of an indictable or either way offence- one of the more serious crimes- you had a one in four chance of going to prison. Now it’s one in three. Average sentence lengths have gone up too from less than 16 and a half months to over 20.   Since almost all the Council’s 25 Guidelines have generally sought to retain the current levels of sentence severity, on the face of it something’s gone wrong.

It’s possible that in recent years offences have become more serious and offenders more persistent- there is some evidence for that. But that’s far from the whole story. The Council’s own assessment of its guidelines on assault and burglary have shown they have resulted in unexpected increases in sentencing. Their assessment of theft guidelines, also published this week, paints a similar, if less pronounced picture.

Of the Council’s contribution to sentence inflation, you would learn nothing by reading the tailored review.   The review makes some useful recommendations - for the Council to consult more widely with black and minority ethnic groups in the production of guidelines for example - but the first order questions about the impact the Council has had, just haven’t been asked.

That’s the case as well with the Council’s remit to increase public understanding of sentencing. Is that any better than it was eight years ago? Not an easy question to answer but the review doesn’t even try- instead making an opaque recommendation that the Council “should consider widening public awareness of its work through cost-effective engagement with other criminal justice bodies”.

Part of the problem is that the review was somehow supposed, in true Sir Humphrey vein, to provide robust challenge with a light touch- and it’s the latter approach which has prevailed.  Cabinet Office Guidance says these tailored reviews should be appropriate for the size and nature of the organisation being reviewed and the significance of the organisation to the department. 

With a budget of £1.4 million, the Council is, in Whitehall terms, small beer. But its significance for the MoJ and its provision of prison places is much bigger. As an example, the introduction of the guideline on bladed articles and offensive weapons offences, which came into effect on 1 June 2018, is estimated to result in a need for around 80 additional prison places per year at a net cost of around £2.5 million. As a key driver of the MoJ budget, the Council deserves much greater attention than it's had.   

To be fair, back in 2017 the Council itself invited top Cambridge criminologist Tony Bottoms to review its work and it is making some changes as a result. But the Bottoms recommendations were limited to how the Council can best exercise its current statutory functions. My 2016 report for Transform Justice looked more broadly at what the Council should and could be doing if those functions were altered. I thought the House of Commons Justice Committee should conduct an inquiry into its role. But this tailored review might have done so too.

On Monday, alongside his announcements about  reconsideration of parole decisions, the Justice Secretary launched a tailored review of the Parole Board to examine further options for longer-term reform. He wants “to examine what further, more fundamental measures might be possible over the longer term, including the possibility of primary legislation. A tailored review of the Parole Board provides the opportunity to do that”.  

Much the same exercise is needed for the Sentencing Council.  Whoever did the tailoring of its review got their measurements wrong.

Challenging Times

Justice Secretary David Gauke has announced his plans for decisions made by the Parole Board to be challenged and looked at again. He should really have made a statement to Parliament about it - the Ministerial Code says that the most important announcements of Government policy should be made there in the first instance. But Gauke preferred the Sunday papers and Today programme for the latest episode in a saga stretching back to his first few days in office just over a year ago.  

In the media, Gauke was able to spin the plan as solely about giving victims the right to challenge release decisions and to gloss over the chance prisoners will have to ask for parole refusals to be reviewed too. In the new scheme, applications for a decision to be reconsidered will be open to the prisoner and the Secretary of State – the two parties to the Parole hearing- with victims able to make their representations for reconsideration via the Secretary of State. The Ministry of Justice estimates between 1% and 5% of release decisions will be challenged compared to between 13% and 16% of decisions to remain in custody which prisoners will ask to be reconsidered.

It’s anybody’s guess how many challenges will prevail on either side; and whether the possibility of review will make initial Parole Board decisions more conservative. Rightly, there’s no change planned to the grounds for the Board’s decision-making.  As the MoJ put it “Any detention beyond the minimum term imposed by the {sentencing} judge is not about ongoing punishment for the offences committed but about the offender’s current risk to the public by the time that stage of the sentence is reached – often many years after sentencing”.  

In the great majority of  cases, however strongly they may understandably feel about an offender’s release, victims have to accept that their views will have limited weight in assessing that risk. Welcome improvements to the arrangements for keeping victims informed and supported and the (limited) increases in transparency Gauke has introduced, cannot and should not, alter that central fact.    

Gauke has wisely resisted the temptation to allow members of the public or the media to apply for parole decisions to be reconsidered. The Government say they looked at the proposal to do so carefully, rejecting it as impractical, unworkable and unachievable without primary legislation.  Almost as an afterthought they make the principled point that “challenges should come from those with a standing and involvement in the case rather than from the public at large”.

This is a principle that arguably should be applied to the Unduly Lenient Sentencing Scheme which  was introduced 30 years ago last week.  It seems odd that in any case of an eligible offence, at the request of a single person, the Attorney General must decide whether the Court of Appeal should reconsider it. In 2017, 943 requests were received, of which 137 eventually had their sentences increased. 

When the ULS scheme started, a handful of cases a year were anticipated but its scope has gradually been extended down the years. It may be preferable to a generalised Prosecution right to appeal. But if  sentences for a yet wider range of offences are brought within the remit of the ULS,- as the current Attorney General seems to think desirable- there's an argument that only those who can demonstrate a sufficient connection to a particular sentence should be able to challenge it.   

As for Parole, after two MoJ reviews, a third is on its way, looking at the case for more fundamental reforms to the powers and responsibilities of the Board. If that case is made and accepted, and the Parole Board becomes more like a fully fledged court, the reconsideration mechanism announced today could turn out to be something of a short term expedient.