A Year - and Decade - of Penal Policy

In a curious symmetry, penal policy in 2019 has mirrored the decade as a whole. 

  

The year opened with then Prisons Minister Rory Stewart proposing to abolish short prison sentences, followed by his boss David Gauke giving perhaps the best ministerial speech on sentencing since Ken Clarke spoke at King’s College London just after the 2010 election.

While Clarke’s plans to reduce prison numbers went with him to the back benches in 2012, Gauke’s seem to have departed with him from the Conservative Party altogether. The new Prime Minister wants to toughen up what he sees as “our cock-eyed crook-coddling criminal justice system”. While Boris Johnson’s sights are set on longer periods in prison for the most serious sexual, violent and terrorist offenders, this could easily have the effect of raising the going rate for a much wider range of crimes.

 

Sentencing for serious offenders has become more severe over the decade with the custody rate for indictable offences rising from a quarter to a third and the average length of a jail term for all offences up from 13.8 to 17.4 months. But because of falling clear up rates and prosecutions, the prison population is slightly lower now than 10 years ago. Sentence inflation has occurred in spite of the guidelines produced by the Sentencing Council which marks ten years of operation next year and whose impact leaves much to be desired.  

Johnson’s line has been hardened by November’s dreadful events at Fishmonger’s Hall which tragically cut short the lives of two inspiring young people involved in an initiative to open up educational opportunities for prisoners. A month earlier, former prisons boss Sir Martin Narey had controversially called for prisons to forget rehabilitation, and with the new government pledging  a root-and-branch review of the parole system and talk of shifting responsibility for sentencing, prisons and probation back to the Home Office, the new decade looks set for a repressive turn.

It might have been different. But David Cameron’s hubristic promise of prison reform as a defining, progressive cause for his government disappeared with him and his lieutenant Michael Gove after the EU referendum. While Gove subsequently returned to the May government in other roles, his successors at Justice belatedly abandoned his lofty rhetoric about redemption and instead focussed much needed attention and funds on addressing the major operational crises created by reckless staff reductions and the increasing availability of drugs in prison. Promised new prison legislation has never materialised but controversial measures such as the introduction of incapacitant spray for prison staff are on their way.   

Alongside, the probation service, sacrificed on the altar of privatisation by Chris Grayling in 2014, suffered a widely predicted decline in performance, charted in forensic detail by former Chief Inspector Glenys Stacey.  In May this year, Gauke bowed to the inevitable by announcing the re-nationalisation of probation supervision.

The last years of this decade have thus been spent on urgent repairs to the largely self- inflicted damage wrought on criminal justice institutions. Had the numbers of people sentenced by the courts not fallen by more than 40% in the last ten years, prison and probation services would have collapsed. 

Youth justice has fared a little better- if only because numbers in custody have continued to fall through the decade, with fewer than 800 under 18-year olds behind bars in October 2019 compared to more than 2,000 ten years ago. Black and minority ethnic over-representation among children locked up remains shockingly high and the fall in numbers has not led to better conditions or treatment for those who continue to go to custody. 

Much criticised Coalition plans to build a very large Secure College were abandoned after the 2015 election and it would not be a huge surprise if a similar fate  awaits the new Secure School due to be opened by Christian charity Oasis next year but already postponed until 2021.  Many of the more radical proposals in Charlie Taylor’s 2016 Youth Justice Review were dispatched to the long grass but in the face of decades of experience, the belief in the need for yet another form of youth custody has proved enduring.             

      

Back Home? Why Sentencing, Prison and Probation Should Stay in the Ministry of Justice

The Johnson government is reportedly considering a shift in responsibility for sentencing, prisons and probation from the Ministry of Justice to the Home Office. I’m not altogether surprised; before the 2016 referendum, I heard Michael Gove tell an Oxford seminar he’d like to disband the MoJ (of which he was then Secretary of State), because it was a European type of institution unsuited to British traditions.

There may be a superficial attraction in combining responsibilities for crime and punishment -not only to those who favour a more punitive approach to offending but by those who hope that any Home Office plans for a crackdown would be tempered by the need for the Department to pay for its penal consequences.

But while the MoJ’s governance of criminal justice over the last 12 years may have earned it few friends, progressive reform is much less likely to emerge from our Interior Ministry – famously described by Whitehall- watcher Peter Hennessey as the graveyard of liberal thinking since the days of Lord Sidmouth.

For one thing, according to a book she co-authored in 2011, Priti Patel the current Home Secretary believes that we need to “reverse the tide of soft justice”, ensure that persistent offenders are imprisoned for long periods of time and make prisons “tough, unpleasant and uncomfortable places”. After the Coalition- a Conservative Agenda for Britain- written with four other current government ministers argues that “the primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals”. Current proposals to increase the severity of sentences may not go far enough to satisfy their desire for harder penalties.  

Not all Home Secretaries are so firmly in the Michael Howard Prison Works tradition of course, but responsibility for security and the reduction of crime will often produce penal policy which is at best risk averse and at worst unnecessarily harsh. The Ministry of Justice, whose centre of gravity includes human rights and the rule of law ought to tend to a more balanced approach to the use and practice of imprisonment. Home Secretary Theresa May's joke to Justice Secretary Kenneth Clarke., “I lock ‘em up, you let em out” says something about the departments as well as their ministers.  

     

Consolidating crime and punishment in the Home Office would raise questions about the Parole Board- increasingly a judicial body that would not sit well in Marsham Street; about Youth Justice which many think belongs in the Education department; and about the role of Police and Crime Commissioners.

Ms Patel and her colleagues argue that the role of PCCs should be extended so they are responsible for commissioning custodial and non- custodial sentences for those who are convicted.  There could be some benefits to such a devolved approach if it creates a dynamic to encourage the development of better alternatives to prison and measures to reduce -re-offending. But the government’s belief that public confidence in criminal justice will be restored by longer prison terms make these Justice Reinvestment outcomes unlikely in the current climate.

After the fall of the Berlin Wall, the new democracies of Eastern Europe who wanted to join the Council of Europe had to meet certain conditions including abolishing the death penalty and moving their prison systems to the Ministry of Justice. The latter was to encourage the "civilianisation" of highly militaristic and security focused approaches to detention. The MoJ is now responsible for prisons in all 47 countries of the Council of Europe, except Spain.

In their book, Ms Patel and her colleagues have deplored the fact that an increasing human rights agenda and increasing interference from Europe discourage prison sentences, decrying the Council of Europe’s belief that prisoners should be treated in a way that reflects the normal life of freedom that all citizens generally enjoy. 

Moving prisons to the Home Office could mean much more than an administrative change. It could be a fast and slippery slope to people going to prison not as a punishment but for a punishment.