A Return to 'Proper' Punishment?

Having already comprehensively screwed the system up, we once again have the spectacle of politicians using crime and punishment as a political football in order to win popularity at the polls. The Secret Barrister writing in the Guardian puts the position rather well I think:-  

The Tories' tough talk on crime is shameless and cynical

In the spirit of the party conference season, let me start with a platitude: everybody wants dangerous criminals to be dealt with properly.

But what “properly” actually means depends heavily on someone’s political perspective. The law sets out five purposes of criminal sentencing: rehabilitation; crime reduction (including by deterrence); reparation; protection of the public; and punishment. The problem with our current system, in the eyes of Boris Johnson’s government, is that there isn’t enough emphasis on punishment. So it was that justice secretary Robert Buckland QC trailed his conference speech by announcing in an interview with the Daily Mail that he was introducing “proper punishment” for “the most serious violent and sexual offenders”.

This will apparently be achieved by “stopping the release of the most serious violent and sexual offenders at the halfway point of their sentence”. The statutory regime that has been in place since 2005, under which any prisoner serving a standard determinate sentence is automatically released on licence upon serving half of their sentence, is a popular bugbear, not only among the general public but as featured in Johnson’s un-fact-checked columns in the Daily Telegraph, which took aim at “our cock-eyed, crook-coddling criminal justice system”.

The reasons in favour of early release on licence are mixed. Some are noble and based on evidence, including the government’s own research that early reintegration into society reduces reoffending; some are cynical and attributable to the political desire to generate tabloid headlines of long prison sentences without having to actually fund those prison places in full. And I have every sympathy with public anger at feeling misled by 10-year sentences that translate to five years minus time served on remand awaiting trial or sentence.

But the fundamental flaw in Buckland’s new policy is that the “most serious violent and sexual offenders” are, under the current law, not automatically released at the halfway point of their sentences. The most serious offenders, those deemed to present a significant risk of serious harm to the public, will usually receive either a life sentence or an extended determinate sentence (EDS). With a life sentence, a prisoner will serve a minimum term set by the court before being eligible for parole, and will remain in prison indefinitely until they can convince the parole board that they no longer pose a risk to the public.

With an EDS, a prisoner is given a notional determinate term – say nine years – and has to serve two-thirds before being eligible to apply to the parole board for release. If they are not safe for release, they may have to serve the full term. Those convicted of sexual offences against children and terrorism offences who do not receive a life sentence or EDS are deemed an “offender of particular concern”, and must satisfy the parole board they are not a risk to the public before they are released at the halfway point of their sentence.

So who is this policy actually targeting? The answer is a tiny percentage of defendants in the criminal justice system who are convicted of (as yet unspecified) serious violent or sexual offences, but who don’t receive a life sentence or an EDS. So people who are, by definition, not “the most serious offenders”. They will now have to serve two-thirds, rather than half, of their sentence before being automatically released.

The government has offered no evidence that this will in any way make the public any safer. The purpose is purely punitive; red meat tossed on the Conservative party’s buffet table for the salivating hang-’em-and-flog-’em brigade, with a beady eye on a nakedly populist election campaign and an increasingly authoritarian tabloid press. It’s cynicism bordering on nihilism; shamelessly undermining public confidence in sentencing by spreading misinformation about how the justice system actually works.

Meanwhile, as the home secretary, Priti Patel, stands at her podium and smirks: “To the criminals, I simply say this: we are coming after you,” our criminal justice system is in meltdown. It is taking years to investigate and charge offences, as the under-resourced police and Crown Prosecution Service drown in digital data. Cases I have been briefed on this week involve incidents that happened in 2018 and are listed for trial in the summer of 2020. This is because the government has taken what the senior presiding judge, Lady Justice Macur, described as a “political decision” to slash even further the number of crown court sitting days to save on the costs of running courts. This falsest of economies means that perfectly usable courtrooms sit locked and empty and judges twiddle their thumbs at home, on full pay, while the backlog of crown court cases rises to more than 32,000.

The courts themselves are literally crumbling: burst pipes and leaking sewage are par for the course. And we haven’t even started on legal aid: the injustice of innocent people of modest means who are forced to pay for their own defence, and being refused their reasonable legal costs when they are acquitted, forcing them to sell their homes.

As for victims of serious crime, rape crisis centres are in desperate need of funding, and the government has only offered £5m of the £195m needed to properly support victims of sexual violence. Meanwhile, the government estimates that our already grossly overcrowded and understaffed prisons – hellholes of death, violence and self-harm – will have to find another 3,000 places a year, at an annual cost of £110m.

It bears repetition: the government can find £110m for an ineffective, macho prison policy, but only £5m for victims of rape. Any government that is serious about criminal justice would make the real problems in the criminal justice system a priority. But this announcement confirms that we do not have a serious government, just a gaggle of cheap opportunists charting policy based not on evidence, but on the fact-free demagoguery of Boris Johnson’s Telegraph columns.

The Secret Barrister

The writer is a junior barrister who writes anonymously about the English and Welsh legal system, and is the author of The Secret Barrister: Stories of the Law and How It’s Broken