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.