Sentencing Review: Three Things to Look Out For

 

Unless something’s been kept under wraps, many of the broad recommendations of the Sentencing Review have already been trailed as has the Government’s likely response. The central elements seem to comprise reducing short jail terms, a new scheme of earned early release and stronger community sentences. Here’s what I’ll be looking out for tomorrow.

Short Sentences: Chalk or Gauke?

When he was Lord Chancellor six years ago, David Gauke saw a “a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place, a robust community order regime.” He didn’t get a chance to act on it but five successors on, Alex Chalk’s Sentencing Bill  would have introduced a presumption on the courts to suspend short sentences of 12 months’ custody or less.  The election intervened so will successor number six go for abolition or suspension and what will the upper limit be? Perhaps more than 12 months?

What will prisoners have to do to earn early release?

It’s been reported that those qualifying could spend a third of their jail term behind bars with a further third  at home subject to electronic monitoring and the final third on licence with a liability to recall. Those who don’t earn the extra freedom are likely to spend a half their sentence in prison. The proportions may turn out to be slightly different but the bigger issue is what to do to get out early?

One option is simply to reward good conduct, measured presumably by the avoidance of disciplinary sanctions or reaching and maintaining the enhanced level on the scheme of Incentives and Earned Privileges. While this looks straightforward, developing a fair decision making process will have challenges. Prison Inspectors said last year that “staff regularly failed to challenge poor behaviour on the wings. In some prisons, rules were broken with near impunity because leaders had not established clear boundaries, and drug testing and adjudication processes were not used effectively”.

Another, or additional option is a Texas style points system which gives credit for participation in purposeful activities such as work or education or more formal rehabilitation programmes  aimed at addressing offending behaviour.

Given the limited and variable access prisoners have to positive activities even in training prisons, this looks even more problematic.  The Chief Inspector told MPs last week that assessments of purposeful activity have been consistently the lowest scoring of their four healthy prison tests since 1982. Only two out of 32 closed prisons inspected in 2023-24 were rated good or reasonably good for purposeful activity. Questions of fairness arise if prisoners in those two jails can reach the threshold for release more easily than those in worse performing jails who simply don’t get the opportunities to accumulate the points needed to reach the threshold for release.

Whatever the scheme entails, the Prison Service will need to devise a fair, timely and efficient process for assessing eligibility. The Inspectorate reported last year that staff  shortages were impeding effective offender management and prisoners’ ability to work through their sentence plans. How will a Lord Chancellor very committed to equality before the law make sure prisoners have a level playing field?

Will community supervision be able to step up to the plate? 

The new arrangements will entail a welcome shift of emphasis away from imprisonment to the community. As well as the need for the spending review settlement to reflect this, there looks to be a specific problem with electronic monitoring, highlighted in a recent Channel 4 documentary.

Financial penalties have been levied on Serco every month since they took on the service on 1 May 2024 because of poor performance. It turns out that their proposal to run the tagging scheme was classed as an Abnormally Low Bid but eventually approved.

If the new arrangements are to work well, the government will need to ensure not only that the Probation Service is given the resources they need to do the job but that tagging is run effectively and efficiently. What will the government do to strengthen supervision in the community?

No doubt, the Review and response to it will raise many other questions; for example if and how the new release arrangements will interact with existing processes like Home Detention Curfew?  But given the capacity crisis, perhaps the biggest one of all is how many prison places the new arrangements are expected to save. I hope there is a detailed impact assessment alongside the government plans but I am not holding my breath.