Sentencing Trends

 

 

To give effect to its manifesto commitment to introduce “ tougher sentencing for the worst offenders”, the Government has sought both to ensure that more of a sentence is served in prison and to provide courts with options to impose longer terms. It moved quickly to shift the automatic release point from halfway to two-thirds on fixed term sentences of 7 years or more imposed for serious offences- something it had tried and failed to do before the December 2019 election.  

While the change made by the Release of Prisoners (Alteration of Relevant Proportion of Sentence)Order 2020 applies to people sentenced after 1 April 2020, emergency legislation in February made new restrictions on the early release of terrorist offenders retrospective with current and future cases henceforth being considered by the Parole Board at the two thirds point. The Independent Reviewer of Terrorism Legislation  was concerned that as a result  terrorists who served their full sentences would be released unconditionally without licence.

May saw a more comprehensive Counter Terrorism and Sentencing Bill propose a new 14 year minimum Serious Terrorism Sentence with an extended licence period of up to 25 years and restrictions on any early release for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence. The Bill is still in Parliament.

In July a limited consultation was launched on doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years. It was raised from 6 to 12 months only in 2018. The large majority who responded were apparently in favour, but the MoJ has refused to publish the responses. Legislation is likely to follow next year as part of a raft of measures proposed in September’s White Paper A Smarter Approach to Sentencing.

These will abolish automatic halfway release for a yet wider range of prisoners, increase tariffs for discretionary life sentences, and widen the scope of whole life orders which involve no prospect of release. There are plans to prevent courts departing from minimum mandatory prison terms for repeat offenders.

Alongside these more punitive measures, the White Paper includes some more constructive plans to strengthen community based supervision. The Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag came into force in October and another go at Problem Solving courts, a return for deferred sentences and more treatment options are promised.   

If and when enacted, any substantive changes to law will be integrated into the new Sentencing Code which came into force on 1 December, consolidating existing sentencing procedure law into a single act and making the daunting technical task of sentencing significantly more straightforward for judges and magistrates.  It is hoped that the Code will ensure that Sentencing Guidelines are easier to apply than hitherto.

The Sentencing Council has published two new guidelines, on sentencing offenders with mental disorders and on firearms offences. While the former is something of a missed opportunity, the latter breaks new ground by giving explicit reminders of the disparity in punishments being imposed by the courts on white, Asian and black offenders.

This follows research published earlier in the year which found that for three drug offences, when taking into account the main sentencing factors, the sex and ethnicity of offenders were associated with different sentencing outcomes- for example, the odds of a Black offender receiving an immediate custodial sentence were 1.4 times the size of the odds for a White offender.

Drawing  on the Court of Appeal case of Manning, the Council also  published a note reminding courts to bear in mind the practical realities of the effects of the pandemic, and consider whether increased weight should be given to mitigating factors, given that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.

After ten years of work, the Council has conducted a wide ranging consultation about its future priorities. My report for Transform Justice argued that it should be doing much more to limit the use of imprisonment in line with its duty to consider the costs and effectiveness of sentences and that it may need a wider remit to fulfil its potential. This may not be easy to achieve given the “perceptible hardening of the public and political attitude to crime” noted by the Lord Chief Justice in a significant if somewhat depressing speech in December.  Real or not, the perception of a hardening may impact on the root and branch review of parole which got underway in October. 

Two voluntary sector initiatives may help counter the punitive trend. The Sentencing Academy aims to inform public debate and promote effective sentencing practice. It has reviewed the 20 year old scheme which enables victims to make a personal statement in court. In other jurisdictions victims who use the scheme are more satisfied with the sentencing process and there has been no systematic increase in sentence severity as a result- but we don’t know if that’s the case here so a comprehensive evaluation is needed. 

The Prison Reform Trust has established an Independent Commission into the Experience of Victims and Long-Term Prisoners which looks to stimulate fresh thinking on the range of issues from sentencing to parole, particularly in respect of the growing number people serving very long sentences. The experiences of those receiving long sentences when young people have been closely studied by Ben Crewe and colleagues.    

Something is certainly needed to put the brakes on the use of imprisonment which is projected to grow by 25% over the next six years, with demand for places highly likely to outstrip supply.   In the year to June, the average custodial sentence length was the highest in the decade at 19.5 months for all offences and 22.0 months for indictable offences. The custody rate for indictable offences was also the highest in a decade at 35% up from 32% the previous year.

The increases are likely to have been influenced by the prioritisation of cases during the pandemic. The public health emergency has of course had many and various impacts on the work of courts. One minor one seems to have been a delay in progressing the televising of judges’ sentencing remarks which was announced in January.  I was against this back then but might have been more positive had I known about the lockdown to come.    

 

 

A Year in Youth Justice

 

Ironically, a year which saw children in custody spend huge amounts of time locked up in their cells, opened with the Chief Inspector of Prisons Peter Clarke recommending an entirely new approach to the use and practice of separation - situations in Young Offender Institutions (YOIs) where children are unable to mix with their peers or attend activities in the normal way.

Within weeks, Coronavirus effectively subjected almost all children in custody to a form of system wide separation. In May, Clarke praised the swift actions taken to keep children safe from the virus, and the creativity of staff and managers in providing opportunities for children to receive meaningful interaction. By July, he was more critical of disproportionate and avoidable restrictions which had seen most locked up for more than 22 hours for almost 4 months.

Clarke contrasted the suspension of face to face education in the YOIs run by the Youth Custody Service with its continuation through the pandemic in privately run and local authority secure establishments, but October’s inspection of Rainsbrook Secure Training Centre (STC) calls this judgment into question. It found that “children received education work packs to complete in their residential units during most of the Covid-19 restrictions as all education classes were suspended”. Two months later, lack of improvement to a spartan regime prompted a formal demand for urgent remedial action by the Justice Secretary.

In the final annual report of his tenure, Clarke rightly described childrens custody as "a systemic failure" producing "appalling" outcomes for many children. Charlie Taylor, who was to take over from Clarke in November, produced a further scathing assessment in his review of physical restraint, reporting that some staff appear to avoid spending all the time they can with children, have little understanding of why children behave as they do and what adults can do to help,  using force to maintain their position at the top of a hierarchy of violence. As a result of his report, the use of pain inducing techniques is set to be removed from the system of behaviour management in YOIs and STCs by the end of the year.

Clarke’s annual report bemoaned slow progress in implementing the new model of secure schools, agreed as a blueprint for the future in 2016 following Taylor’s first Youth Justice Review. The first school to be run by educational charity Oasis won’t open until 2022.  Unusually, Taylor himself used a piece in the Spectator to blame delays on tortuous bureaucracy in the Ministry of Justice (MoJ) and the controlling instincts of the prison service. Whether running a secure school is compatible with charitable status has also arisen as an issue- although by my reckoning one existing secure childrens home in England is run by a charity – as are four out of five in Scotland. The MoJ has yet to honour its promise to publish the application by Oasis to run the new school although the process for appointing the Director is underway.

Keith Fraser took over from Taylor as Chair of the Youth Justice Board (YJB) in April. One of the Board’s five strategic objectives for 2020-21 has been “to see a youth justice system that sees children as children first, and offenders second.” In response to the Justice Committee in June, Fraser appeared to dismiss this as a matter of branding more than substance. In November, the Chief Probation Inspector,who also inspects youth offending teams (YOTs), thought it important not to lose sight of the second part of the formulation – offender- because of the risks to others presented by a sizable proportion of children known to YOTs.  A debate about the direction of youth justice policy and practice may be on the cards although the key role played by  YOTs – which celebrated their 20^th birthday this year – looks set to remain.  

A further YJB objective has been to influence the system to treat children fairly and reduce overrepresentation. In a somewhat tame report published in November, the Justice Committee wanted to know what the MoJ is doing to address racial disproportionality. More action is certainly needed. Nearly nine out of 10 children from London held in custody on remand are from a black, Asian or minority ethnic background. Encouragingly, a higher threshold for custodial remands was promised in September’s White Paper, sitting alongside less welcome proposals for longer sentences for serious crimes and tougher community supervision.  

While custody has been a bleaker experience than ever, the numbers have thankfully reduced to 535 in October 2020 from 791, 12 months earlier. Projections suggest that number could go up by 75% by 2026.  Much will depend on if, when and how the system gets back to normal as well as the changing nature of the challenges it has to face.   

Leading Council ?

 

It’s not been a great few weeks for those of us concerned about the social, ethical and financial costs of prisons and who want to see fewer people sent to them and for shorter periods.  First the Treasury pledging £4 billion on 18,000 new prison places; second projections confirming they’ll be needed as prison numbers will explode from less than 80,000 to almost 100,000 in the next six years. Finally, a speech from the Lord Chief Justice (LCJ) intent on refuting the notion of “wet, liberal judges being soft on criminals” by giving them credit for increasing sentence lengths as if this were something to be proud of. Who'd have thought it would be left to former News of the World editor Andy Coulson to remind us that prison "doesn't work for the prisoner, doesn't work for society and doesn't work for politicians".   

Lord Burnett is right to call out the more conventional tabloid narrative of soft sentencing as a myth, and to want the debate on sentencing policy to “proceed on fact and not misconception.” He should surely have added evidence of effectiveness as well- and suggested who should lead such a debate.

A new report I’ve written for Transform Justice, -The Sentencing Council and criminal justice: leading role or bit part player? argues that the Sentencing Council, of which the LCJ is currently President, should be doing much more and much better to help develop effective law, policy and practice. Research, public education and policy evaluation should inform an effort to lead a national conversation about the costs and benefits of imprisonment and other responses to crime - something proposed last year by former Justice Secretary David Gauke and endorsed by the House of Commons Justice Select Committee.   

The focus of the Council’s first ten years has so far largely been on producing guidelines for courts. I’d like to have seen these raise the threshold for custodial sentences and reduce their length when they are unavoidable. After all, the cost of different sentences and their effectiveness in reducing reoffending is something they must look at when drafting guidelines. The Council hasn’t undertaken an overall review of sentencing levels (recommended by the British Academy in 2014) but in most cases, it has at least tried to promote consistency rather than raise severity. But its own evaluations have shown that for serious assaults, burglary and robbery guidelines have had an inflationary effect.

Harsher sentencing over the last ten years cannot all be laid at the Council’s door.  Court of Appeal judgments, and a judicial culture which worries more about undue leniency than severity have played a role. And so too of course have politicians, ever aware of the electoral appeal of creating more crimes and tougher punishments.  At the very least, the Council should be assessing the impacts of every new law and policy proposed in this area; but its role could be much expanded. If interest rates are set by a committee of experts, couldn’t levels of punishment? The Council’s remit, membership and budget would need to be revised by parliament, if it took on an enhanced role. The Transform Justice report argues it’s at least worth thinking about.          

It was as a mechanism for better matching the demand for prison places with the available supply that the idea of the Council came about in the mid-2000s.  As things stand now, unless the percentage of cases that end up with imprisonment comes down and average sentence lengths stabilise, the prison system simply won’t cope.  Few expect that the “significant progress in delivering 18,000 prison places by the mid 2020’s” expected by the Treasury will be sufficient.  Something will have to give.

Almost half of the people sentenced to prison – and almost two thirds of the women- receive terms of six months or less. Some of the £4 billion prison building money could be used to strengthen community based alternatives instead. 12 years ago, Rethinking Crime and Punishment showed how the £2.3 billion then earmarked for new prison places could be better spent on making alternative measures work better. Somewhat to my surprise, the then Lord Chief Justice agreed to write a foreword to this self-styled Manifesto arguing that many of its recommendations would undoubtedly enhance non-custodial alternatives and were worthy of serious consideration. 

With this sort of leadership and a renewed and expanded focus role for the Sentencing Council, there’s a chance of avoiding some aspects of what looks like an increasingly dystopian penal future.