Lessons to be Learned?

It's been some time since we highlighted Rob Allen's reflections, now regularly appearing on the Substack platform:- 

Releasing Tension
Thoughts on the Latest Prison Crisis

When I was seconded to the Criminal Department in the Home Office in the early 1990’s, a paper used to be circulated by the Prison Department each week listing convicts of particular note who were due for release.

In the days before “end to end offender management,” one function of it seemed to be to alert ministers and officials responsible for police and probation about the need to ensure practical arrangements were made in high profile cases. I recall colleagues wrestling with the idea of locating a notorious sex offender on a remote island.

The lists also confronted those making policy with its real world consequences, which were sometimes intended, quite often not. And of course they enabled the preparation of “lines to take” in the unwelcome event of press interest.

So I was surprised that the present day Ministry of Justice were caught so badly unawares about the impending human impacts of the earlier release provisions which became law earlier in the year and are due for implementation this autumn.

During the passage of the Sentencing Bill, officials and ministers will have understandably been focussed on avoiding unsustainable demands on prison places to prevent the apocalyptic vision of a gridlocked justice system which they faced two years ago.

I can see how having rejected David Gauke’s proposal to bring forward the potential release dates for prisoners deemed dangerous by the courts and given extended sentences, an exemption for any offenders on standard determinate sentences from earlier release would have seemed unattractive to the MoJ in terms of its impact on prison numbers.

But surely less unattractive than the huge row and last ditch review which has led to the decision that prisoners convicted of serious sexual offences will now be excluded from the scheme. Given the widespread outcry about the proposed earlier release of two men convicted in the dreadful case of PC Harper, it seems likely those sentenced for manslaughter or particular forms of it will also find themselves staying behind bars until the two thirds point of their sentence has elapsed rather than being released under supervision at the halfway point.

So what are the broader lessons from this fiasco?

First, obviously enough, for a government to use its parliamentary majority to whip and rush through legislation in the teeth of widely held concerns only stores up trouble. When I was in the Home Office, it was only after the implementation of the 1991 Criminal Justice Act that problems came to light. An over rigid system for setting fine levels and unworkable limitations on courts ability to consider previous convictions when sentencing were rapidly repealed. Then as now it was a new Secretary of State who inherited the task of implementing (and then unimplementing) controversial legal provisions.

This time, it is a new Prime Minister who has applied the brakes prior to provisions coming into force. He was not an MP when they were enacted. But had his predecessor and colleagues properly considered a more flexible approach earlier on, this summer’s unseemly mess might have been avoided or mitigated.

Second, while the government could conceivably have stuck to their Sentencing Act guns, the forces ranged against them- bereaved family members, almost the entire police service and most of the media- as well as a 1 million strong petition -have been simply too powerful to withstand.

It’s 20 years since Tony Blair pledged that the legal system must dispense justice to the victim as well as the accused. But it seems to me that a settled and well understood view has never been reached about what that should mean in practice. What is the appropriate level of say which victims of crime should have about sentencing and release decisions in individual cases and policy terms. That’s something that needs to be carefully reviewed along with a much more vigorous promotion of restorative justice.

But as things stand, having parroted in their 2024 manifesto promises of “a justice system that puts victims first” and acknowledged that sentences “often do not make sense either to victims or the wider public”, making the case for the automatic earlier release of serious offenders surely needed much fuller justification than the need for prison space. The case would have been easier to make with the exceptions we have ended up with and potentially a greater involvement of the Parole Board in certain cases.

Third, the failure to make that fuller justification revealed the depressing fact that for most of the public and it seems many in the government, the only purpose of sentencing is punishment, and the only punishment is prison. Never mind the proportions involved, the basic idea that a sentence of imprisonment comprises a period locked up followed by a spell at home under supervision with a liability to be recalled to prison is not widely enough understood. Even less I suspect the admittedly confusing notion of the three phase Progression Model, which requires so little for prisoners to progress along.

Nor is it appreciated that sentence lengths for serious crimes have increased so much in the last 20 years that half the average prison sentence now exceeds two thirds of what was the average in 2006. In their 2024 critique of sentence inflation, the most senior former judges in England and Wales argued that release at the half way point should be restored. It’s disappointing that they and many others have not at least sought to defend the Sentencing Act provisions which do just that.

After the failings of the 1991 Criminal Justice Act, whose aim had been to reduce the use of prison, there followed what one academic described as the biggest volte face in penal history. The revised law paved the way for a sustained rise in prison numbers whose consequences we are to an extent still living with.

One can only hope that the 2026 crisis does not lead to a similar result.

Rob Allen