A Game of Two Halves

When Justice Secretary Robert Buckland finally overcame technical glitches to give his sentencing speech at the Centre for Social Justice, it was like watching a game of two halves. Not surprising perhaps as the White Paper he was launching seeks to strike a balance between “making sure the public are safer from harm and, at the same time, ensuring offenders have the right opportunities to change their lives”.

He galloped through the more punitive reforms already trailed at the weekend, the dismal justification for which amounts to little more than the public “want to know that when serious and violent offenders go to prison, that’s where they’ll stay for as long as possible”.  He added a couple of other  gratuitous ideas  – potentially longer terms for children receiving Detention and Training Orders and trying to ensure courts impose more mandatory minimum jail terms for repeat offenders.  

More interesting,- not least it seemed to Buckland himself - were some of the “smart” measures he  went on to outline – more treatment options for people serving community sentences, an “empowered” probation service and reductions in the periods after which some sentences can be considered spent for the purposes of criminal record checks.  Tighter criteria for remanding children to custody are very welcome, so too a greater use of deferred sentencing to provide opportunities for accessing help with problems or taking part in restorative justice. Positive words about out of court disposals made a surprising change – though limiting police in law to just two types could have unintended consequences.  

There’s a nagging doubt that while the harder measures will definitely come to pass- legislation is expected next year - many of the smarter ones may not get beyond pilots or evidence gathering. Take Problem-Solving Courts, enthusiasm for which has waxed and waned for 20 years. This is at least the third iteration of pilots I can remember. They will have a harder edge this time round with immediate short custodial stays as a sanction for non-compliance with court orders – the so called swift and certain approach. But there’s a strong chance that problem solving (like restorative) justice is destined to stay at the margins of the way we respond to crime.   

In similar vein, Buckland rightly diagnosed the problem of people getting short prison sentences without courts seeing a pre- sentence report (PSR). His solution is not the obvious one - to require a PSR before custody can be imposed- but for further work to be undertaken “to build the evidence base”.  He spoke about neurodivergence – conditions such as autism and dyslexia –as “something that is very close to my heart”. But the White Paper proposal is for a national call for evidence to improve understanding. That’s fine as start but will it go anywhere beyond that?

In the meantime, the impact assessments (IA) published alongside the White Paper- always worth reading- show the likely consequences of the longer spells in prison- an increase in the adult prison population of 600 and the child custody numbers of 50.  These don’t include the effects of tightening up on minimum mandatory sentences for certain repeat offences, nor of any knock on sentence inflation which may result.  

With refreshing honesty, the IA also points out that longer time in custody may strain familial and community links, could limit offender motivation for re-engagement in rehabilitation, and ultimately increase the likelihood of re-offending.  It also risks increasing prison instability, overcrowding self-harm and violence.

That’s one reason it’s so important that the non- custodial measures in the White Paper work. Of course, the more "robust" they become, the more they can act simply as an ante-room to prison. 

As they say, in the end, it’s the hope that kills you. 

The Impulse to Punish

Depressing if predictable trailing of the forthcoming Sentencing White Paper today, with Justice Secretary Robert Buckland telling Sun readers “it’s time for a tougher criminal justice system” and the Prime Minister writing in the Express that “some individuals are so dangerous or their crimes so abhorrent that they should never be released”.

Some comfort I suppose that after explaining his plans to lower from 21 to 18 the age at which people convicted of murder will be able to be sentenced to spend their whole life in prison , Johnson clarified that he wasn’t “talking about permanently locking up young people who make teenage mistakes or commit youthful indiscretions”. Thanks for that . And maybe some promise in his view that “we need more and better rehabilitation behind bars, improved monitoring of and support for ex-prisoners and more effective non-custodial sentences for low-risk offenders”. But all in all while the numbers directly affected by his draconian measures may be relatively small, there’s a real risk of an inflationary knock on effect on sentencing levels for less grave crimes.

It’s possible that courts may re calibrate their sentences downwards in the wider range of cases where two thirds rather than half will be spent inside. But for some reason I’ve never understood, they are not supposed to take too much account of what a sentence means in practice.  More likely that some will take their lead from Johnson’s idea that public protection should be the single most important principle of sentencing and impose yet longer terms. Of course, public protection is important but the experience of the Imprisonment for Public Protection (IPP) sentence – widely acknowledged to be basically unjust -should serve as a warning against ignoring other purposes of sentencing.   

Johnson may be surprised to know that he has some support in international law. The Nelson Mandela Rules say that the purposes of a sentence of imprisonment are primarily to protect society against crime and to reduce recidivism. They go on to say that those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life. And that's a problem.  

Last week’s Public Accounts Committee Report showed the government’s abject failure to make progress on David Cameron’s 2016 vision of “a modern, more effective, truly twenty-first century prison system."  Given the financial constraints facing the government in coming years its hard to see much in the future.  We have heard about better rehabilitation in prisons for a decade but it seems much less capable of being delivered than are longer sentences.

Maybe the White Paper will have something more positive to say but I am not holding my breath.  As Nietzsche said, “ Mistrust all in whom the impulse to punish is powerful".