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.

 

Straw in the Wind?

 

 Probably 25 years ago, I was part of a delegation from NACRO that trooped along to see New Labour’s Shadow Home Secretary Jack Straw to discuss his plans for youth justice reform. On his desk, lay a copy of Edwin Schur’s “Radical Non-intervention: Rethinking the Delinquency Problem”. The 1973 text from a doyen of labelling theory wasn’t on the face of it the likeliest inspiration for Straw’s emerging plans to end the excuse culture that he thought dominated responses to children in trouble. So it proved, as at one point he brandished the book as an illustration of everything that was wrong with prevailing orthodoxies in work with  young offenders, where , as he would put it once in government,  “there is no punishment, no chance for them to make amends for their crimes and no action to tackle the cause of their offending”.

I was reminded of the incident when reading the introduction to the latest annual report on youth offending services written by the Chief Inspector of Probation, Justin Russell- who happens to be one of Straw’s erstwhile advisers. Russell also takes a swipe at ‘radical non-interventionism’, arguing that while it may avoid the danger of children becoming labelled as offenders,  it does little to provide them with practical help with their underlying needs and may, in reality, amount to something more like benign neglect, in the absence of any other support in their lives. In asking whether diversion from the youth justice system is always in a child’s best interests, Russell is suggesting that policy and practice have once again lost their way.

Russell seems distinctly lukewarm about the mantra ‘child first, offender second’ which the Youth Justice Board has recently embraced as a guiding principle for practice.  He accepts that each child’s own welfare and experience of trauma must be addressed but worries that Youth Offending Teams (YOTs) are losing sight of the second part of the formulation and paying inadequate attention to the risks children can present to other people including their own families. Russell thinks this is more likely to happen when YOTs “become completely subsumed within children’s services departments and lose their separate identity”.

Four years ago, in his youth justice review Charlie Taylor-subsequently YJB Chair and now Chief Inspector of Prisons- took a different view. He was worried that YOTs were too often in a separate silo, unable to get necessary social care, education, housing or health services for children who needed them.  He wanted the requirement for local authorities to establish a YOT to be removed. That recommendation wasn’t accepted, and efforts to integrate youth justice into wider children’s services have had mixed results at best. But is that because the model is flawed, poorly implemented or inadequately resourced?

By suggesting that diversion has gone too far and children's needs are being prioritised over public protection, Russell has reignited an age old debate about the best way to tackle youth crime.  It’s common ground that many of the children who commit offences need a wide range of assistance if they are to achieve their potential. Scholars and policymakers have long disagreed at what stage in their lives and on what basis such help should best be provided -whether as part of the justice system or outside it for example.   

 If it’s a question of help such as speech and language support, mental health treatment or employment training, I wonder about the significance of such disagreements – not least to young people themselves. One of Schur’s surely correct prescriptions is that we must take young people themselves more seriously.

Another of Schur's insights is that some of the most valuable policies for dealing with delinquency are not necessarily those designated as delinquency policies. He is right if he means that ideally, children should have their needs assessed and addressed with as little stigmatising involvement in criminal justice as possible. But in the real world some specific focus on children who harm others sometimes seriously and persistently is surely not unreasonable.  Determining where its limits lie has always been the problem.  

Our absurdly low age of criminal responsibility notwithstanding, the last decade has seen the formal youth justice system doing less and less with fewer and fewer children. In many respects that's a good thing. But it's arguably disclosed a deepening reservoir of unmet need.        

In terms of future directions for youth justice, could Russell’s intervention be a straw in the wind?

 

Same Old, Same Old?

 

There are some useful if narrow recommendations in the first part of the Justice Committee report on children in custody published today. Ensuring those who turn 18 while waiting for a court date should be sentenced as children rather than adults, and providing “intermediaries” to help vulnerable child defendants participate in court hearings, are long overdue. But well done to those who have lobbied for the changes.

It’s been obvious for a while too that the MOJ and YJB need to get a better handle on the various out of court measures which are used for most children in trouble -by better data collection, evaluation and a funding review.  

There is likely to be less consensus about the merits of direct recruitment to the youth magistracy so JP’s can specialise in youth court work from the outset. And whether to make Youth Rehabilitation Orders available for first time offenders at risk of custody could divide youth justice specialists. But the inquiry deserves credit for bringing these matters to attention.

On some of the bigger questions the report is disappointing. MPs want to know what resource has been allocated by the MoJ to addressing racial disproportionality. Given the significance of the issue, why didn’t they simply ask ministers and officials during the inquiry? Or about the court backlog or what’s being done to support participants in remote hearings- both subjects on which the Committee now want information.  

On three substantive questions the Committee has held its fire. They like the idea of a “feedback loop” between the Youth Court, Youth Offending Teams and the young person which may help improve transparency and support rehabilitation. But they recommend only “a review of current sentencing options, with a view to introducing it”. Four years ago, Charlie Taylor’s Youth Justice Review worried that “magistrates can play little or no role in overseeing a child’s progress against the sentence they have passed.” The MoJ rejected his radical proposals for fixing that but promised to explore ways to strengthen courts’ involvement with children they sentence. Something more than another review is needed if anything much is to happen on this front.

That’s even more true in respect of the minimum age of criminal responsibility. Despite England and Wales’s status as an international outlier, the Committee “are not persuaded that it should be immediately increased” from 10. Presumably agreement among the members could be reached only on the weasel words “we consider there is a case for reviewing the age of criminal responsibility”. This seems to fly in the face of the evidence they received. The report claims that “there are …. many organisations and individuals who do not think the age should be increased”. It mentions only one, the MOJ, which it then asks to conduct the review. The Committee does recommend that if the review concludes that the age of 10 should stay, “the Ministry set out the evidence and reasoning to justify it”. But the long grass beckons for this one too.  

As for the headline finding – that meeting the complex needs facing children in youth justice requires a “whole system approach” involving educational, psychological and social services- there are not much more than warm words. Of course, they are the right words, but finding the best ways of delivering these services to the right children, at the best time, and at the necessary scale are not at all straightforward and need much more consideration. 

Perhaps the second report will provide it.

Rules Don’t Apply

Friday’s Sun included a strongly worded comment piece lambasting Covid policy as driven by “Matt Hancock, a fanatic, and Boris Johnson, a muddled old bumbler” and as inflicting unjustified misery and economic mayhem while failing to stop the spread of the virus. No surprise there -newspapers are free to voice a range of views on issues of the day – but more troubling is the fact that the writer of the piece is former Supreme Court Judge Lord Sumption.

He’s no stranger to controversy, admitting in August that he had not himself complied with “some of the law” and suggesting last month that people should decide for themselves whether or not to obey coronavirus laws. He went further yesterday arguing “it is about time we voted with our feet and took back control of our own lives.” Sumption is entitled to his libertarian views and but should he be expressing them?

For one thing it’s a breach of the long standing convention that judges should not comment publicly on the merits, meaning, or likely effect of government policy. For another, The Guide to Judicial Conduct says that judges "should be aware that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary". It also says that "where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular cause or to a lack of even handedness". There’s nothing remotely even handed in what Sumption has to say or the way he says it.

So what? He’s retired and surely he can say what he pleases. Unfortunately for him the Guide to Judicial Conduct makes clear that “a retired judge may still be regarded by the general public as a representative of the judiciary. Retired judges should exercise caution and are encouraged therefore to refer to this guidance so as to avoid any activity that may tarnish the reputation of the judiciary.”

Unfortunately for us, Sumption is not fully retired. He is one of four members of the Supplementary Panel of the Supreme Court so until he reaches 75 in 2023, he can be called upon “when additional judges are needed to form a panel of the requisite number”.

Call me old fashioned, but I’m genuinely puzzled as to how Sumption could now conceivably sit in any court let alone the highest in the land. I’ve made a complaint to the Judicial Conduct Investigation Office but am not expecting much. Sumption is probably a member of the club to whom ordinary rules don’t apply. If that’s the case, as Sumption says about Covid policy “this is worse than unjust. It is insane”.

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". 

Consulting Position

Last month the Ministry of Justice launched a consultation on doubling from 12 months to two years the maximum sentence for common assaults on workers in emergency services such as police officers, firefighters and paramedics. Although the maximum was raised from six to 12 months as recently as 2018 in the Assaults on Emergency Workers (Offences) Act, the consultation on increasing it yet further was promised in the 2019 Conservative manifesto.

According to the Sentencing Council (who themselves have recently consulted on guidelines for violent offences), common assault usually involves minor injuries with no lasting impact.  The Crown Prosecution Service (CPS) say that anything more than grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin and superficial cuts should be charged as Assault Occasioning Actual Bodily Harm (ABH) which carries a maximum sentence of 5 years (7 for the racially aggravated version of the offence).  When there is really serious harm, GBH will be the offence- and for both ABH and GBH the fact that the victim is an emergency worker makes the offence more serious for sentencing purposes. 

  

There’s a strong argument that assaults on people who protect society and deliver services on our behalf is a more serious matter than an attack simply on an individual victim and whether the best way to respond to such assaults of whatever kind is through yet harsher punishment is a depressing but not unreasonable question to raise.

What’s less reasonable is for the Ministry of Justice to rely only on the actual or potential victims of the offence to help them answer it. Rather than proceeding with a public consultation, the MoJ has undertaken “targeted engagement” with 70 plus groups representing emergency workers along with the CPS, judiciary, lawyers and the Sentencing Council.  The representative groups include professional associations and trade unions, some familiar -the Police Federation, Prison Officers Association and Royal College of Nurses – some less so – the British Dietetic Association and the British Orthoptic Society.  

There was no consultation document as such but a letter from Justice Secretary Robert Buckland inviting consultees to give their “views as to whether the current maximum penalty provides the courts with sufficient powers to reflect the seriousness of the offending”. Feedback could include “the direct experiences of emergency workers or any qualitative or quantitative data you may hold on the operation of the existing legislation”.

What’s lacking is any consideration of the impact that the change might have on courts and prisons or the possibility that aims of sentencing other than punishment- particularly reparation to victims or the reform of offenders might be worth pursuing more vigorously in these types of case. Nor is the opportunity to comment on the knock on effects that such a big change might have on how courts may deal with ordinary assaults on members of the public.    

It rather looks as if the government has made its mind up what it wants to do and is looking simply for supporting evidence. Home Secretary Priti Patel described the consultation as sending “a clear and simple message to the vile thugs who assault our emergency workers – you will not get away with such appalling behaviour and you will be subject to the force of the law”. 

In fact, as Buckland’s letter explains, since the original legislation came into force in November 2018, of the 9,000 offenders sentenced for assaulting an emergency worker only one in six was given an immediate custodial sentence, the average length of which was 2.6 months. This does not suggest that courts are frustrated by the current 12 month maximum. The government clearly is.

The Sentencing Council expects their forthcoming guideline to increase sentencing levels when it comes into force. Unlike the MoJ, in finalising their guideline they will take account of the views of interested members of the public, professionals in the criminal justice field, academics and people with experience of the criminal justice system- and publish a response following consultation.

Buckland does not intend to publish a government response following his own targeted consultation. It’s probably clear what it will be.

Safety In Custody- A Case Behind the Statistics

Published today is the report of an independent investigation I’ve undertaken for the Ministry of Justice into a very serious assault that took place at HMP Bristol back in 2014.  AD, a Somali Muslim man was subjected to a violent unprovoked attack by white prisoner EF on the exercise yard in the prison’s Brunel Unit – a therapeutic intervention unit for prisoners with mental health problems where both AD and EF were accommodated. 

AD sustained life-threatening injuries which have proved enduring, involving both physical and mental impairment. He requires full-time medical care. Following a criminal investigation EF pleaded guilty to the attempted murder of AD. AD’s family, who participated in the investigation, have been devastated by what happened to their loved one and want to know how such a catastrophe could take place while he was in the care of the state.    

AD had been on remand at Bristol for more than six months. He suffered from a psychotic illness and while located on one of the prison’s main wings had been recommended for a transfer to hospital. He was instead moved to the Brunel Unit, where he resumed taking anti-psychotic medication. His mental health improved such that he was due to return to a main wing.  He was staying in the Unit for a few more days so that extra support could continue to be provided for him during a stressful period when he faced a court appearance and was being assigned a new key health worker. It was during this time that the assault took place.

EF had been in the Brunel Unit for six days having been remanded in custody, charged with murder. Mental health nurses at court recommended EF be placed in the Unit because of potential psychosis.  Once on Brunel, no risk that he might harm other prisoners was identified and his behaviour gave no indication that he might commit a violent assault. In fact, EF was highly delusional, forming a view that AD was the prophet Mohammed and his enemy. The assault was investigated as a hate crime by the police and undoubtedly contains elements of islamophobia, although how much of this was brought about by EF’s mental illness is difficult to say.

The investigation found that most of the decisions reached about the care of AD at HMP Bristol were, in the light of the relevant policies and procedures in force at the time, reasonable ones. But six months on remand was, in my view, too long.

As for EF, there were shortcomings in the way the decision was made to place him in the Brunel Unit and weaknesses in the assessment of the risks he posed while there.  The exercise yard was not properly supervised at the time of the assault – AD and EF were in the yard with a third prisoner but with no staff member present. The one prison officer on duty in the unit that morning was in the process of escorting another prisoner back from the yard to his cell.  The response to the incident was prompt once the alarm was raised by the third prisoner on the yard and by two civilian staff whose offices looked out on it.  

Most of the failings identified in the report were institutional in nature: confusion about the criteria for admission to the Brunel Unit, a lack of clarity about procedures there and a variety of interpretations among prison and healthcare staff about their respective responsibilities.

The shortage of prison staff available to work there on the morning the assault took place is a major concern.  The officer on duty was placed in a very difficult position. He did what he thought was best for the prisoners in his care by enabling exercise to take place. Although leaving the yard unattended for a short period was in line with custom and practice, it was not compliant with policy designed to ensure the safety of prisoners. The investigation found that the staffing complement of five officers for Brunel and the adjacent Segregation Unit was on average available only one day a week in the month leading up to the assault, with only three staff deployed on almost a third of mornings.

During the investigation, a particularly disturbing allegation was made that prison officers had been actively encouraging other inmates to attack Somali prisoners round about the time of the incident. The investigation found no evidence of any collusion between staff and EF in the assault on AD. But despite some commendable efforts by the prison to engage with the Somali community, the report finds that insufficient priority was given to address equality and diversity issues at the time.  As an example, EF told reception staff when he first arrived at the prison that he would only share a cell with someone from his “own ethnicity” and not with “a homosexual”; but the basis of these attitudes were not explored or challenged at all.  They should have been.

A troubling claim was also made by the governor of another prison in the South West who conducted an internal investigation for the Prison Service in the months after the assault. His report surprisingly found that there was no evidence to substantiate that EF chose AD for the assault due to AD’s ethnicity.  The governor told me that he added that statement after being asked by his superior to soften his investigation report and “lessen the impact” on the prison service. The prison service accepted my recommendation that this serious allegation of improper pressure being applied to the governor should be looked at separately.  

The independent report on this by Dale Simon, also published today, found that there was no substance to the governor’s allegation- he had in fact been encouraged to address the issue of racial motivation more fully in his internal investigation rather than play it down.  Ms Simon is concerned however that the internal investigation report was accepted by the Prison Service, “whilst in the full knowledge that the report had failed to explore the fundamental issue of possible racial or religious motivation”.    

It’s pleasing that all bar two of the 31 recommendations made in my investigation have been accepted. These include improvements to the management of the Brunel Unit, installation of CCTV cameras in its exercise yard, and work with Bristol based charity Stand against Racism and Inequality (SARI) to develop an action plan to ensure that equality and diversity issues are effectively led and managed in the prison. 

Whether some good can come out of an incident such as this depends on the wider context. HMP Bristol has been under extreme pressure in recent years with the Chief Inspector of Prisons invoking the Urgent Notification Protocol last summer. It’s one of seven prisons whose performance was rated as of serious concern by HMPPS in the last financial year.  There may be some slight cause for optimism in the 7% fall in serious assaults recorded in prisons last year. But there is a long, long way to go to ensure an acceptable level of safety in custody and to reduce to a minimum the chances of a similar disaster to that which befell AD occurring in the future.            

Sentencing Guideline on Mental Health- Welcome Clarity or Missed Opportunity?

Two months ago, the Lord Chief Justice was asked in a Justice Committee hearing whether the current crisis provides any opportunity to reduce the prison population through greater use of alternative sentences for vulnerable groups, including people with mental health problems. Lord Burnett responded by telling MPs that a lot of work had been going on in connection with the sentencing of the mentally ill with the Sentencing Council’s development of a guideline on sentencing defendants with “mental problems” a project “close to my heart since the day I became Lord Chief Justice”.  

The Council’s guideline on Sentencing offenders with mental disorders, developmental disorders, or neurological impairments was published this week, coming into force in October. It has been widely welcomed as providing greater clarity and transparency for courts - but what difference is it likely to make to the extent to which people with mental health problems go to prison and if they do to the length of the terms they serve?

The guideline itself says that the fact that an offender has an impairment or disorder should always be considered by the court -but will not necessarily have an impact on sentencing. Disappointingly, the resource assessment drawn up alongside the guidelines suggests that the Council does not expect that there will be any impact on sentencing severity; on the use of lower culpability factors and mitigating factors relating to mental health; or the imposition of community sentence requirements. When, during the development of the guideline, sentencers were given scenarios to sentence under current practice and then under the draft guideline, researchers found no clear evidence of any changes in sentencing practice.

This is a huge missed opportunity to encourage greater use of alternatives to prison for this group of offenders.  The guideline states that courts may consider a Mental Health Treatment Requirement (MHTR) attached to a Community Order as an alternative to a short or moderate custodial sentence, and that they may also wish to consider a drug rehabilitation requirement (DRR) and/or an alcohol treatment requirement (ATR) in appropriate cases.  Given their duty to take account of the relative effectiveness of different sentences in preventing re-offending, the Council should have gone a lot further than that in directing sentencers towards such measures.   

Had the guideline given a greater impetus to these community- based requirements, the Council would have been duty bound to make a proper assessment of the resources required to implement them. As things stand the Council says the guideline is not expected to change the numbers of MHTRs, DRRs or ATRs.  Why not? Because the use of these requirements is constrained by their availability in the community. It’s a Catch 22 from which the Council could have helped to engineer an escape.

That it did not do so is characteristic of the narrow and cautious approach they have brought to almost all of the guidelines they have produced. Their intention, they say “is not directly to cause changes to sentencing practice".  It should be.  The Council says it may be that the guideline is part of a wider focus on offenders’ mental health, which may gradually change the way that mental health is treated in the criminal justice system. But don’t hold your breath.

Children in Custody- History repeats itself first as tragedy then as farce

In March 1993, then Home Secretary Kenneth Clarke announced plans for new Secure Training Centres (STC) to deal with the “comparatively small group of very persistent juvenile offenders whose repeated offending makes them a menace to the community”. The Centres aimed to provide “high standards of care and discipline and opportunities for the juveniles in their care to develop as individuals”. Regimes were intended to “embrace education and training provided in ways that tackle the individual's offending behaviour”.

More than five years passed before the first trainees, one boy and one girl, arrived at the newly built Medway STC in April 1998, with a steady increase into the summer. Within three months, police in full riot gear accompanied by dogs were called to quell a riot in which a dozen or so trainees armed with makeshift weapons caused injuries to staff and damage to the building.  Within six months 30% of the original staff had left.  

The inauspicious start ushered what can only be described as a chequered history for the STCs. Clarke’s promise that “secure training orders will be different from anything that has ever been provided before” turned out to be hubristic nonsense. Approved schools, Detention Centres, Borstals, Youth Treatment Centres and Young Offender Institutions had all started with high hopes and proved more or less expensive failures.

Fast forward 18 years to December 2016 to find then Justice Secretary Liz Truss telling MPs that the government will “comprehensively transform youth custody by developing two new secure schools” following recommendations made in Charlie Taylor’s Youth Justice Review.  Two quickly became one but last summer the Oasis Charitable Trust were selected to run the secure school – where else but Medway. The original plan was to open in September this year; but last November a delay until 2021 was confirmed.  

This week Prisons Minister Lucy Frazer informed the Justice Committee that the government expects to open the Medway secure school in 2022- which means the beginning of the school year- almost six years after Taylor’s review.

The reason for the delay is ostensibly “to work through some significant and complex legal and regulatory issues.” These arose after Frances Crook at the Howard League questioned whether running a secure school falls within the charitable purposes listed in the Charities Act 2011.The Charity Commission does not think that the operation of a secure school can be exclusively charitable.

This may be one reason why - unless I have missed it- the government has not yet published the application submitted by Oasis Charitable Trust . They aimed to do so by September 2019 in keeping with their commitment to be as transparent as possible.  

It’s also the case that the Medway site, which closed as an STC in the spring, has been pressed into service to accommodate up to 70 adult male prisoners during the current pandemic.  Justice Secretary Robert Buckland told the Justice Committee this week that 32 of the single cells are currently in use. The emergency use of Medway as an annexe to HMP Rochester may have delayed the 5 million pounds worth of planned refurbishment works designed to make the site suitable for the secure school.

In the light of all this, Ms Frazer’s claim that the government is dedicated to the secure schools programme looks somewhat flaky. It is entirely possible that it will go the same way as the Coalition’s absurd plan for a large Secure College – nowhere.

Last week’s reports on pain inducing restraint and separation in custodial establishments left no doubt about the need for reform in youth custody.  They were but the latest illustration of what amounts to  a huge strategic failure over 25 years.

A sensible approach would have been to build more secure childrens homes which offer by far the best level of care in the estate and phase out prison custody which provides the worst. Secure Training Centres – despite the rhetoric surrounding their introduction - have proved a costly distraction and there is a risk that the secure school – if it ever happens -may prove the same.  

Prison Sentencing During Covid-19. Why the Courts Must Accept the Realities of the Situation

While the prison population may gradually be falling - this week dipping under 80,000 for the first time since 2006- it needs a much more substantial reduction if prisons are to start to exit their lockdown and put in place more humane but Covid secure regimes. 

Like any residential institution, prisons are high-risk environments for the spread of infectious disease. They are full of people in already poor health. Doing as much as possible to keep people out of such environments is a sensible public health policy in an emergency like this. 

There is a more principled reason for putting – and keeping -fewer people behind bars. This relates to those exceptionally harsh conditions which prisoners now face as a result of the measures deemed necessary to safeguard their health. Put bluntly, since imprisonment has become a more onerous punishment than it was, so its use should be reserved for more serious offences than previously; and the length of custodial sentences which are imposed should be reduced to reflect the greater pain that they inflict on those who serve them in the current conditions.

The Lord Chief Justice ruled in April that confinement in cells for 23 hours a day, lack of visits and anxiety about the risk of the transmission of the virus mean “the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be”.  

He pointed to the long-standing principle of taking such an impact into account in sentencing practice, both in deciding whether an immediate custodial sentence is called for at all and if so for how long.  Last week, Lord Burnett told MPs that he had absolutely no doubt that from the beginning judges have been alive to the issue.  “I am confident” he said, “that it is a basic principle of sentencing practice of which all sentencers will be well aware”.  But are they?

There doesn’t seem to be very much at all about this basic principle in the Guidelines produced by the Sentencing Council.  The Guidelines do make clear that:

* the impact of punishment is likely to be felt more heavily by a child or young person in  comparison to an adult
* offenders over 18 who are immature and who have a mental disorder or learning disability may find it particularly difficult to cope with custody and 
* courts can take account of the greater impact which imprisonment will have on an offender with a physical disability or a serious medical condition- though worryingly, the Overarching Principles on sentencing say that “the court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody”.   

It’s also the case that for offenders on the cusp of custody, imprisonment should not be imposed where there would be a disproportionate impact on their dependants. One of the factors indicating that it may be appropriate to suspend a custodial sentence is if immediate custody will result in significant harmful impact upon others. Significant harmful impact on prisoners themselves is not however a factor.   

Nor do "current prison conditions" yet appear on that list of factors, notwithstanding the Chief Justice making it clear that they should be taken into account in deciding whether to suspend a sentence.

Lord Burnett's judgment confirmed a long line of Court of Appeal cases going back 40 years which encourage sentencers to take account of adverse conditions- overcrowding in particular- in deciding whether to lock someone up and if so for how long.  In 2007 Lord Phillips was explicit that the “prison regime is likely to be more punitive as a result of prison overcrowding”, which also hinders or prevents “the valuable work of rehabilitation that a prison should normally provide”. 

In spite of these cases, Guidelines do not point courts clearly enough towards considering how a prisoner will actually experience the penalty they impose, whether it is impoverished due to overcrowding or other difficulties.

Indeed, many believe that “courts ….properly sentence blind to the size of the prison estate”.   But as Lord Woolf put it, while the government not the courts are responsible for providing prison places, “the courts must accept the realities of the situation”.  That situation is that severe hardships resulting from the crisis apply now and for the foreseeable future to everyone in prison.

The logic of today's "current realities" dictate both that the custody threshold is moved upwards and sentencing tariffs moved downwards.   The Sentencing Council, one of the few criminal justice organisations to remain largely silent during the COVID crisis needs to take action.

The Council has amended its guideline on common assault to tell courts to treat as an aggravating factor “threats or activity relating to transmission of Covid-19”. But it has so far done nothing to reflect the more punitive nature of imprisonment as a response to this or any other offence.