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.