How About That!

I've just listened to David Gauke on the Today programme saying:-

"Our addiction to longer sentences is a serious mistake"

Now that's an understatement if ever I heard one, so the question is, what is his independent review into sentencing going to deliver? As we've seen from the Justice Secretary's diktat last week, Labour have reneged on the election promise of a fundamental probation review, so we must rely on a former Tory Justice minister to say something sensible. Interestingly, he ended this morning's interview by repeating that the 'bidding war must end', Labour of course having done their bit several times since being elected! 

I don't think we covered this New Statesman article from last October, but it clearly gives a strong hint as to the direction of travel. The question of course is, have the government got the bottle?   

How to fix the prisons crisis

The political bidding war over tougher sentences must end.

Just when I thought I was out, they pull me back in. Perhaps a Godfather quotation is not entirely appropriate for the subject matter but, more than five years after leaving the Ministry of Justice I am back – rather to my surprise – chairing an independent review of sentencing policy.

It is a privilege to serve, not least because such a review is timely and necessary. It is timely because we face an immediate crisis in prison capacity. The current government inherited a situation in which we were very close to running out of places and had no choice but to take emergency measures and release prisoners early. Anyone in office over the summer would have done the same. But these emergency measures, including further releases today, only provided a brief respite. Demand for prison places is currently growing at 4,500 a year, much faster than the supply of places. This means that unless strategic measures are taken, we will repeatedly risk running out of places.

This capacity issue highlights why it is necessary to look more fundamentally at sentencing policy. We now incarcerate more people per head than any other western European country. Since 1993, the prison population of England and Wales has doubled, even as crime has consistently fallen (a fall, by the way, that can be seen in countries that have not increased their prison population). The reason for the increase in the prison population is clear. We sentence more people to prison and we sentence them for longer than we used to do.

Prison, of course, should continue to be a vital part of our criminal justice system. There are many circumstances in which it is the right form of punishment and the best way of protecting the public. But the large majority of prisoners will be released at some point and our very high reoffending rates suggest that our overcrowded prisons are not successful in rehabilitating offenders. We need to look at ways in which sentencing policy can better contribute to reducing reoffending and, as a consequence, crime.

There are some who will argue that we should build our way out of our prison capacity issues. But we cannot simply dismiss the reality that we will run out of capacity long before any new prisons can be built. And even if we do, there is a question of cost. On current projections, just to keep up with the growth in prison numbers, we would have to build three large prisons a year at a total cost of £2.3bn. Then there are the staffing, maintenance and other ongoing costs, which mean that it costs the taxpayer £52,000 per prisoner. Maintaining the current approach is, in effect, a significant and unfunded spending commitment at a time when tough decisions must be made about the public finances.

We really ought to be able to do better than an expensive system that fails to rehabilitate offenders. But how to do so? The Sentencing Review Panel is, of course, only at the beginning of its process and there are many aspects of sentencing policy we will want to review but let me highlight three aspects here.

The first is short sentences. As justice secretary, I argued that short prison sentences did more harm than good. The evidence at the time supported this contention but I want to revisit it and, in particular, look at how we can more effectively deal with the most prolific offenders.

Whatever we do with short sentences, however, will not solve the capacity issue when the prison population is increasingly made up of those serving four years or more, very often considerably more. Prisoners, like everyone else, respond to incentives and other jurisdictions have done more than us to reward good behaviour. Texas, for example, introduced a new approach which results in prisoners who complete their programmes, behave well and show evidence of rehabilitation spending less time in jail. The (admittedly very high) Texan prison population has fallen, as has its crime rate. So a second area of interest is whether we could develop an incentives policy appropriate for our system.

The third area is technology. Specifically, does it provide an opportunity to punish, protect society and rehabilitate offenders outside of prison in a way that is much more effective than has previously been possible? Electronic tagging, for example, is increasingly used but we need to understand whether more could be done. The same can be said of drink and drug monitoring. We need to understand the potential for current and future technologies to keep offenders out of prison in the first place, or to safely release some prisoners at an earlier stage than is currently the case. There may well be lessons to be learned from other jurisdictions to ensure that sentencing policy is properly able to exploit these technologies.

For the last 30 years, there has been a sentencing bidding war between the political parties seeking to compete to be seen as the toughest on crime by promising ever-longer prison sentences. Rightly, the public expects criminality to be punished and prison is often viewed as the only effective means of punishment. But the capacity crisis in our prisons has meant that – at the very least – we have no choice but to pause the increase in the prison population. It is also sensible that we now look more broadly at the evidence and ask whether sentencing policy should be more fundamentally reformed. By next spring, we should have the answer.

David Gauke

Sentencing Review 1

Well, here it is then. We can only hope the new government has the bottle to get a grip on this issue and 'lean into' the problem and not go by what focus groups say. We also hope it presages a sensible review into the Probation Service that was promised in the Labour manifesto.

Landmark Sentencing Review launched to end prison crisis

Public safety will be at the heart of an independent review into sentencing, as the government pledges to end the crisis in our prisons.

• review into sentencing launched to end prison crisis and ensure no government forced into emergency release of prisoners again
• the first principle of the Review will be to protect the public and make sure prisons punish serious offenders
• this forms part of the government’s pledge to always have the prison places needed to lock up the most dangerous offenders, alongside its commitment to build 14,000 prison spaces
• review will also look at tough alternatives to custody

Chaired by former Lord Chancellor David Gauke, the review will make sure the most serious offenders can be sent to prison to protect the public, and that the country always has the space needed to keep dangerous criminals locked up.

Launched on the day more prisoners will be leaving jail under an emergency release scheme due to chronic overcrowding, the review will make sure no government is ever placed in this position again.

The prison population has roughly doubled in the last 30 years - but in the last 14 of those years, just 500 places were added to the country’s stock of jail cells.

The government has committed to creating 14,000 extra prison places and outlining a 10-year capacity strategy later this year. Alongside this, the Sentencing Review will follow 3 core principles to ensure a sustainable justice system:

• make sure prison sentences punish serious offenders and protect the public, and there is always the space in prison for the most dangerous offenders
• look at what more can be done to encourage offenders to turn their backs on a life of crime, and keep the public safe by reducing reoffending
• explore tougher punishments outside of prison to make sure these sentences cut crime while making the best use of taxpayers’ money

The review will also specifically consider whether current sentencing for crimes committed against women and girls fits the severity of the act, and ask whether there is more can be done to tackle prolific offending.

Lord Chancellor and Justice Secretary Shabana Mahmood, said:

"This government inherited prisons in crisis, within days of collapse. This review, along with our prison building programme, will ensure we never again have more prisoners than prison spaces. I believe in punishment. I believe in prison, but I also believe that we must increase the range of punishments we use. And that those prisoners who earn the right to turn their lives around should be encouraged to do so. The Sentencing Review will make sure prison and punishment work - and that there is always a cell waiting for dangerous offenders."

The review will examine the tough alternatives to custody, such as using technology to place criminals in a ‘prison outside prison’ and forcing offenders to do hard work in the community that gives back to society. In developing their recommendations, the independent chair and panel will look at evidence in this country and also from overseas jurisdictions, such as the US, to explore alternative approaches to criminal justice.

Independent Reviewer David Gauke said:

"Clearly, our prisons are not working. The prison population is increasing by around 4,500 every year, and nearly 90% of those sentenced to custody are reoffenders. This review will explore what punishment and rehabilitation should look like in the 21st century, and how we can move our justice system out of crisis and towards a long-term, sustainable future."

--oo00oo--

Terms of reference:-

Independent Sentencing Review 2024 to 2025 – Terms of Reference:

In Summer 2024, the capacity pressures on the prison system brought it dangerously close to total collapse. On taking office, the new government was forced to announce emergency measures that reduced the custodial term of some standard determinate sentences from 50 percent to 40 percent of a sentence.

This review of sentencing is tasked with a comprehensive re-evaluation of our sentencing framework. Its goal is to ensure we are never again in a position where the country has more prisoners than prison places, and the government is forced to rely on the emergency release of prisoners.

To do so, the review will be guided by 3 principles: 

• firstly, sentences must punish offenders and protect the public - there must always be space in prison for the most dangerous offenders
• secondly, sentences must encourage offenders to turn their backs on a life of crime, cutting crime by reducing reoffending
• thirdly, we must expand and make greater use of punishment outside of prison

In developing their recommendations, the independent Chair and panel are encouraged to draw not only on national data but also on international comparisons. This sentencing framework must follow the evidence of what reduces offending.

Sentencing is a matter for the independent judiciary and the review will therefore not look at sentencing in individual cases or the role of the judiciary.

The review will provide long term solutions for our justice system by:

• examining the use and composition of non-custodial sentences, including robust community alternatives to prison and the use of fines
• looking at the role of incentives in sentence management and the powers of the probation service in the administration of sentences in the community
• looking at the use and impact of short custodial sentences
• reviewing the framework around longer custodial sentences, including the use of minimum sentences, and the range of sentences and maximum penalties available for different offences
• looking at the administration of sentences, including the point at which offenders are released from prison, how long they are supervised in the community on licence, recall to prison, and how technology can support this
• considering whether the sentencing framework should be amended to take into account the specific needs or vulnerabilities of specific cohorts, such as young adult offenders, older offenders, and women
• considering the approach to sentencing in cases of prolific offenders
• considering specifically sentencing for offences primarily committed against women and girls

There are some important areas which we consider are best-placed to be progressed outside of the review. The review will not consider: 

• the Imprisonment for Public Protection (IPP) sentence or the administration of it
• the use of remand
• the youth sentencing framework
• wholesale reform of the murder sentencing framework: Whilst the review may consider the impact of sentencing for murder on the wider sentencing framework, the department is considering wholesale reform of homicide law and sentencing separately
• out of court resolutions

The review should submit its findings in full to the Lord Chancellor by Spring 2025.

--oo00oo--

David Gauke writing in the New Statesman:-

How to fix the prisons crisis

The political bidding war over tougher sentences must end.

Just when I thought I was out, they pull me back in. Perhaps a Godfather quotation is not entirely appropriate for the subject matter but, more than five years after leaving the Ministry of Justice I am back – rather to my surprise – chairing an independent review of sentencing policy.

It is a privilege to serve, not least because such a review is timely and necessary. It is timely because we face an immediate crisis in prison capacity. The current government inherited a situation in which we were very close to running out of places and had no choice but to take emergency measures and release prisoners early. Anyone in office over the summer would have done the same. But these emergency measures, including further releases today, only provided a brief respite. Demand for prison places is currently growing at 4,500 a year, much faster than the supply of places. This means that unless strategic measures are taken, we will repeatedly risk running out of places.

This capacity issue highlights why it is necessary to look more fundamentally at sentencing policy. We now incarcerate more people per head than any other western European country. Since 1993, the prison population of England and Wales has doubled, even as crime has consistently fallen (a fall, by the way, that can be seen in countries that have not increased their prison population). The reason for the increase in the prison population is clear. We sentence more people to prison and we sentence them for longer than we used to do.

Prison, of course, should continue to be a vital part of our criminal justice system. There are many circumstances in which it is the right form of punishment and the best way of protecting the public. But the large majority of prisoners will be released at some point and our very high reoffending rates suggest that our overcrowded prisons are not successful in rehabilitating offenders. We need to look at ways in which sentencing policy can better contribute to reducing reoffending and, as a consequence, crime.

There are some who will argue that we should build our way out of our prison capacity issues. But we cannot simply dismiss the reality that we will run out of capacity long before any new prisons can be built. And even if we do, there is a question of cost. On current projections, just to keep up with the growth in prison numbers, we would have to build three large prisons a year at a total cost of £2.3bn. Then there are the staffing, maintenance and other ongoing costs, which mean that it costs the taxpayer £52,000 per prisoner. Maintaining the current approach is, in effect, a significant and unfunded spending commitment at a time when tough decisions must be made about the public finances.

We really ought to be able to do better than an expensive system that fails to rehabilitate offenders. But how to do so?

The Sentencing Review Panel is, of course, only at the beginning of its process and there are many aspects of sentencing policy we will want to review but let me highlight three aspects here.

The first is short sentences. As justice secretary, I argued that short prison sentences did more harm than good. The evidence at the time supported this contention but I want to revisit it and, in particular, look at how we can more effectively deal with the most prolific offenders.

Whatever we do with short sentences, however, will not solve the capacity issue when the prison population is increasingly made up of those serving four years or more, very often considerably more. Prisoners, like everyone else, respond to incentives and other jurisdictions have done more than us to reward good behaviour. Texas, for example, introduced a new approach which results in prisoners who complete their programmes, behave well and show evidence of rehabilitation spending less time in jail. The (admittedly very high) Texan prison population has fallen, as has its crime rate. So a second area of interest is whether we could develop an incentives policy appropriate for our system.

The third area is technology. Specifically, does it provide an opportunity to punish, protect society and rehabilitate offenders outside of prison in a way that is much more effective than has previously been possible? Electronic tagging, for example, is increasingly used but we need to understand whether more could be done. The same can be said of drink and drug monitoring. We need to understand the potential for current and future technologies to keep offenders out of prison in the first place, or to safely release some prisoners at an earlier stage than is currently the case. There may well be lessons to be learned from other jurisdictions to ensure that sentencing policy is properly able to exploit these technologies.

For the last 30 years, there has been a sentencing bidding war between the political parties seeking to compete to be seen as the toughest on crime by promising ever-longer prison sentences. Rightly, the public expects criminality to be punished and prison is often viewed as the only effective means of punishment. But the capacity crisis in our prisons has meant that – at the very least – we have no choice but to pause the increase in the prison population. It is also sensible that we now look more broadly at the evidence and ask whether sentencing policy should be more fundamentally reformed. By next spring, we should have the answer.

David Gauke

Alternatives to Prison

The prison capacity crisis together with a new government is at last giving us the opportunity of having a grown up debate about everything, including the urgent need to look at sentencing policy. This from Rob Allen:-  

Intermediate Treatment

Not surprisingly, we’re seeing a plethora of proposals for new Justice Secretary Shabana Mahmood about how to solve the prison crisis. If I was in her job, I’d be particularly attracted to the Howard League’s idea of returning responsibility for prisons and probation to the Home Office. But I think that’s unlikely and undesirable. Peter Hennessey rightly described the Home Office as the graveyard of liberal thinking since the days of Lord Sidmouth.

Most of the suggestions being floated by think tanks, charities and experts focus on reducing demand for prison places in the short term through early release. Implicit in many proposals is the notion that when the 20,000 new prison places are up and running in a few years’ time, some sort of equilibrium will be restored between supply and demand.

I’ve argued that a new way of developing policy about who should go to prison and for how long, distanced from party political competition, might reverse the sharp rises in the custodial sentencing rate and length of prison terms we’ve seen in the last 14 years.

In addition we need to diversify the range of options that can be used as alternatives to prison.

Some of these are institutional alternatives. Many people in prison should be in hospital but thresholds for transfer and waiting times are both too high. The Justice Select Committee asked then Prisons minister Ed Argar about the number of available secure hospital beds for prisoners but doesn’t seem to have received a reply. There are simply not enough.

Other prisoners could potentially be transferred to residential treatment facilities which are being expanded as part of the 10 year Drug Strategy.

Other options include hostels and other supervised accommodation. From 2019 to 2023 the Approved Premise Expansion Programme delivered 169 additional beds, including opening 4 new Independent Approved Premises (83 beds) and 51 additional beds in dedicated premises for women. But there’s a case for a much more ambitious increase in half way houses. It could be paid for by paring back the prison building plans to say 15,000.

Back in 2001, the sentencing review carried out by senior Civil Servant John Halliday recommended that the Home Office- they were responsible back then- should

“establish a review of the existing “intermediate estate” for accommodating and managing offenders in the community, with the aim of developing a strategic plan for its future use, staffing, management and development. The review should embrace all types of accommodation, whether owned by the prison or probation services, or the independent and voluntary sectors, and whether used for prisoners on temporary release; prisoners on conditional release; offenders serving community sentences; or ex-offenders receiving support voluntarily”.

I am not sure such a review was ever done – but it’s certainly needed now.

Three years after Halliday’s review, then Home Secretary David Blunkett announced that “satellite tracking technology could provide the basis for a 'prison without bars', potentially cutting prison overcrowding, and expensive accommodation”.

Progress with electronic monitoring has been chequered during the intervening years. But the review should look at whether the role its currently playing is optimal or whether it can serve to manage security risks for people placed in non-secure accommodation- what Halliday called “containment in the community”.

As well as the where of alternatives to prison, there’s a need to look at the how.

Back in 1979, I started work as a volunteer in IT- not computers (there weren’t many back then) -but Intermediate Treatment. With mixed results, I spent most of the next ten years trying to keep young people out of residential care homes, detention centres, Borstals and their institutional successors.

A generous description of the approach might be “eclectic”- camping trips, sports and drama sessions as much as counselling and groupwork. One troubled young man was placed on a ship in the Caribbean for several months, and an IT officer in a neighbouring area allegedly entered a crew into the Henley Regatta.

Quirky some of it might have been, but with relatively small caseloads, we were able to fashion a wide-ranging package of therapeutic and constructive activities for each individual which would help give them the best chance of staying at home, at school or work and out of trouble.

Of course there are resonances with the best of the approach in youth justice and even parts of probation today. There's a growing recognition that relationship based practice is a key to successful supervision and desistance from crime.

Practitioners need to have the opportunity and training to put that into practice so that more offenders can serve their sentences in the community and those that leave prison don’t go back. By enabling that to happen alongside a wider range of treatment and accommodation options, Ms Mahmood may be able not only to find a solution to the immediate crisis but chart a more positive long-term course. She will need to work with her colleagues responsible for health and local government to make it happen. Let's hope she does.

Rob Allen

--oo00oo--

This from Frances Crook 9th July:-

There has been a lot in the news about the crisis in prisons. They are full, rat infested, ridden with drugs and violence, and the most serious challenge is that they feed the crime problem thus creating more victims and mayhem in the community. This has been a problem for more than a hundred years and cannot be solved with a few quick fixes like extending early release.

There are plenty of papers from academics and voluntary organisations suggesting ways to ease the crowding in prisons that would get the issue off the front pages but I would argue that unless we want to revisit this every few years something more fundamental needs to happen.

A succession of ministers have come and gone and given speeches about making prisons work better and introducing initiatives to improve education and ‘rehabilitation’ and yet nothing has changed. Things can only get worse unless we do something radical.

It is interesting that the new government is planning to fix the front door of the NHS by diverting billions to local services. That is what needs to happen in the justice system. We should divert funding to front end services which means to probation but also to mental health, drug services and to support for housing and crime reduction. If we want to prevent crime, this is the sensible way forward. Just in the health service, the expensive use of residential services like hospitals and prisons, should be used as a last resort and the emphasis should be on the front end and prevention.

We cannot build our way out of the challenge. Building more prisons is a criminal waste of public money that embeds the problems. I have written about how new prisons simply replicate the problems of old prisons in a previous blog.

The new government has to get to grips with sentencing reform. The inflation in sentences has seen people spend many years longer in prison than before and I have never seen any research that showed that sending someone to prison for twenty instead of ten years makes them safer. Too many people are sent to prison in the first place and too many are sent to prison on remand. Big changes are required. It will take legislative bravery which is why it needs to be done in the early years of a government.

Secondly, money needs to go to probation. It deals with the majority of people convicted of a crime, either under sentence or on release from prison. It has been starved of funding and respect. Probation should be untied from the shackles of the civil service, linked to local democracy and the service given the freedom to act with professionalism.

Most importantly we need new leadership. It is depressing to hear some senior politicians repeating the tired and failed rhetoric of ‘we must build more prisons quicker (yes, I mean you Yvette Cooper) which will waste public money and embed more crime and drug addiction. New thinking, brave thinking, is needed that talks to the public as grown ups. With a massive Parliamentary majority and a crisis that is generating front page news, the new government should act with integrity and speed. It can do in the justice system what it is doing in the health system. Learn the lessons of past failures and make things better.

Frances Crook

Prison Population to Rocket

I notice the latest prison population projections have been published today:-

Prison Population Projections 2023 to 2028, England and Wales 

This bulletin presents prison population projections for England and Wales from December 2023 to March 2028. It is produced to aid policy development, capacity planning and resource allocation within the Ministry of Justice (MoJ) and His Majesty’s Prison and Probation Service (HMPPS).

The prison population is projected to increase to between 94,600 and 114,800 by March 2028, with a central estimate of 105,800. This projected long-term increase is predicated on several factors, including continued growth in police charging and prosecutorial activity and falling Crown Court outstanding caseloads (both of which could increase inflows into the prison system and in turn the prison population), and changes in sentencing policy and behaviour to keep the most serious offenders in prison for longer.

Introduction

This bulletin presents prison population projections for England and Wales from December 2023 to March 2028. It is produced to aid policy development, capacity planning and resource allocation within the Ministry of Justice (MoJ) and His Majesty’s Prison and Probation Service (HMPPS). The latest published useable operational capacity (23rd February 2024) is 89,041.. 

The projections are produced using a model of flows of offenders into and out of prison which estimates the resulting prison population each month. A key driver for future prison population (and a major source of uncertainty for these projections) is the volume and composition of cases entering the criminal courts, i.e. upstream demand. To illustrate the impact of these upstream demand assumptions, three plausible scenarios have been agreed between the MoJ, the Home Office and the Crown Prosecution Service, and this publication presents the prison population projection as a range based on these scenarios. The projected prison population range presented here only estimates the impact of differing upstream demand assumptions and therefore does not represent the full range of uncertainty surrounding the projections. All three scenarios are presented from December 2023 to March 2028 and are considered to be plausible outcomes of the growth of the prison population over the next five years. This differs from the previous publication which only presented the central scenario over a three-year horizon. 

Alongside incoming demand, the size of the prison population over 2023 to 2028 is also expected to increase due to courts addressing growth in the outstanding caseload that has been seen since 2020. The COVID-19 pandemic and subsequent lockdowns restricted the courts’ ability to process cases through 2020 and 2021 and the Criminal Bar Association disruptive action between April and October 2022 also affected court proceedings, leading to further growth in the outstanding caseload. Over the first three quarters of 2023, Crown Court disposal volumes increased but remained below receipts, meaning the outstanding caseload continued to increase. 

The projections also incorporate the estimated impacts of agreed sentencing policies, including the Police, Crime, Sentencing and Courts Act, and the Release of Prisoners Order 20205 which include provisions to increase custody time for violent and sexual offenders sentenced to a standard determinate sentence of 4 to 7 years and over 7 years, respectively.

Since there is considerable uncertainty around the assumptions in these areas, the prison population will likely differ from what has been projected – there is a more detailed discussion regarding uncertainty in Section 2.

--oo00oo--

Do we really want to continue down this path? I notice the Bishop of Gloucester and Anglican Bishop for HM Prisons suggests we need to change the narrative. That sounds like a good idea:- 

Bishop Rachel speaks out on sentencing

As we venture towards a General Election at some time this year, the prison population is approaching 90,000 underpinned by a rhetoric across the political spectrum of ‘being tough on crime’. The common narrative is that locking more people up and for longer will result in stronger and safer communities. The evidence does not support this, and rates of reoffending are prolific. So, as Anglican Bishop for HM Prisons in England and Wales I am determined to be part of the solution.

Prison costs in the region of 50K per person per year, and the social and economic cost of reoffending is estimated at £18 billion per annum, thus our current system makes no sense, even if you only care about money. It is not prisons which need expanding but rather our imaginations and public understanding.

The approach to so much in society fails to start with vision, and instead focuses on short term fixes for presenting issues. This is certainly true regarding criminal justice and prisons. Yet it is only when we paint a vision of the sort of society we want to see that we will begin to respond appropriately.

As a Christian I hold fast to hope in the transforming work of God revealed in Jesus Christ, at the heart of which is the fulfillment of a vision of restored relationship. It is about the flourishing of humanity and all creation, and that is a common theme within different faiths and expressed in the longings of many people regardless of whether they are people of faith or not.

Prisons offer a window onto so much which is broken in our society. Broken relationship is evident across every aspect of our criminal justice system, not least fractured relationships in the lives of offenders, often from an early age, and the fractured lives and communities impacted by crime. Yet, prisons also have the potential to provoke us into shaping a vision for the future.

Over 40% of those in prison were expelled or excluded from school; almost 25% of adults in prison have previously been in care, rising to nearly 50% of all under 21-year-olds in contact with the criminal justice system. Furthermore, it is estimated that 300,000 children a year have a parent in prison, and of those over half of boys go on to commit an offence. These are just a few of the stark statistics which reflect our failure to create a criminal justice system which focuses on relationship and which looks both upstream and downstream with a commitment to taking a long-term view, holding before us a vision of restoration and transformation in the lives of individuals, families and communities.

Against this backdrop of a commitment to a different future, I convened a roundtable discussion in Westminster in November 2023 comprised of experts from the field of criminal justice, including academics, MPs and Peers, CEOs of leading organisations, and those with lived experience of prison. Under Chatham House rules we sought to identify some significant steps towards prison reform. The intention is to further conversations and action in our different spheres of influence, including the vital need for clarity, not least among wider society, as to what prison is for.

If we truly want safer and stronger communities, including respect and care for victims of crime (noting that offenders are also often victims), then punishment can only ever be part of the picture. Rehabilitation and purposeful training and activity must be a major focus within prisons, and continue beyond the prison gate. These points have been repeatedly made by Charlie Taylor, the Chief Inspector of Prisons, and one of the roundtable participants.

Furthermore, given that prison staff have the potential to shape a rehabilitative and relational culture when led by an inspiring and motivated Governor, it is shocking that they are undervalued, with initial training being a matter of weeks with negligible investment in further development and support. There is much which could be gleaned from the innovative ‘Unlocked Graduates’ programme https://unlockedgrads.org.uk/ whose CEO, took part in the Westminster discussion.

While crime should never be condoned, prison is rarely the only answer to the problem – so, with vision, we would be more courageous in establishing alternatives to the revolving door of prison and the repeated pattern of fractured relationship. Such solutions would include ever-more imaginative community-based initiatives; not using prison as a place to accommodate people with severe mental health problems; and shaping alternative interventions for many whose offending is rooted in drug addiction. With a clear vision we could do better join-up across issues, with a willingness to look upstream and downstream, including the strong shining of light on the importance of enabling offenders to develop and strengthen meaningful and healthy relationships – a point emphasised by another roundtable participant, Lord Farmer, in his 2017 government review on family ties.

The Westminster roundtable agreed this all requires national debate, not least regarding sentencing as recommended in the 2022 Independent Commission into the Experience of Victims and Long-Term Prisoners, chaired by a previous Bishop for Prisons, The Right Revd James Jones. Indeed, as was highlighted at the roundtable, if there is to be meaningful progress regarding prison reform and using available funds effectively, then we need to work persistently and creatively at changing the public narrative. In 2024 I hope it will be possible to create a groundswell across a diversity of media outlets and public figures willing to influence the debate and be part of that drive to expand our imaginations while resisting the expansion of prisons and the prison population.

The Rt Revd Rachel Treweek, Lord Bishop of Gloucester and Anglican Bishop for HM Prisons in England and Wales

Domestic Homicide

Domestic violence remains a serious issue for society and the Probation Service in particular. I notice the government have published the 'Wade' Domestic Homicide Sentencing Review with 17 recommendations. 

1. Introduction 

1.1 Background 

1.1.1 This Review of sentencing in cases of domestic homicide was initiated as a response to an open letter (“the letter”) sent on International Women’s Day 2021 from the Victims’ Commissioner and the Domestic Abuse Commissioner to the previous Lord Chancellor the Right Honourable Robert Buckland MP. 

1.1.2 The letter highlighted systemic misogyny within the criminal justice system and also identified those aspects of the criminal justice process where it was thought female victims were being routinely let down. It coincided with an ongoing campaign by the families of two women who were murdered by their male partners. Ellie Gould was aged 17 at the time of her murder by Thomas Griffith and Poppy Devey Waterhouse was 24 years old when she was murdered by Joe Atkinson. That campaign also formed part of the impetus for the Domestic Homicide Sentencing Review (“the Review”). 

1.1.3 Both victims were murdered in their own homes where weapons in the form of knives had been readily available to the offender who could therefore not be said to have taken a knife or other weapon to the scene. As we explain in detail at paragraphs 2.3 2.4, if an offender who is aged 18 or over has taken a knife or other weapon to the scene of an offence intending to (a) commit any offence, or (b) have it available to use as a weapon, and (c) used that knife or other weapon when committing the murder, the starting point for the minimum term that the offender must serve in custody as part of a mandatory life sentence is much higher than it would be (all other things being equal) if the offender has not taken a knife or other weapon to the scene. There is a disparity of ten years between the respective starting points. 

1.1.4 Our terms of reference specifically task us with considering whether the issue of taking a knife or other weapon to the scene of a murder with the ulterior intent (which is described above) and then using it to commit the murder, is something which should be given particular consideration within the context of domestic murders. 

1.1.5 Thomas Griffith (17 years old at the time of the offence) and Joe Atkinson (25 years old at the time of the offence) were sentenced to detention for life and life imprisonment with minimum terms of 12 years 6 months and 16 years respectively. Legally, there is nothing wrong with either of the sentences imposed in these cases. Both offenders pleaded guilty, and the sentences imposed can neither be said to be “manifestly excessive”1 nor “unduly lenient” but questions have arisen as to whether sentencing guidelines in cases of domestic homicide reflect our growing understanding of the causes, characteristics and harms of fatal domestic abuse. 

1.1.6 Underlying these questions are broader issues such as: do the sentences imposed in the killings of intimate partners reflect the seriousness of the killings or not? Is there a need for a more specialist approach to these sentences with more account being taken of the specific nature of the offences? Is there a need for higher starting points within the context of the present sentencing framework? Finally, is it possible to address these issues short of detailed consideration of domestic homicides generally? 

1.1.7 Women comprise the majority of victims in domestic killings. Their voices are silenced not just in virtue of their killing but because at present, there is insufficient recognition in law of the harms which their killings involve. Not only are these women wronged by a breach of trust which is an integral part of domestic abuse, but the harms to them often extend to further harm to secondary victims in the form of the families (many of whom are children) and friends of the victims. There is then the harm to society in general which, to date, may not have been sufficiently considered. Where do domestic murders fit with other murders of women where the murder is clearly motivated by misogyny, but the victim and the offender are not and never have been in an intimate relationship? What inferences as to wider harms do we draw in circumstances where there is no domestic history to contextualise the killing? 

1.1.8 As far as sentencing for murder is concerned, there is a tension, which is often not acknowledged by proponents of the call for higher starting points or longer sentences. This tension lies in the fact that women, who are victims of domestic abuse and coercive control, sometimes kill their abusive partners. Such women are victims as well as being perpetrators. It would not be in the interests of justice for these women to receive longer minimum terms. Even allowing for judicial discretion, longer minimum terms would be a concomitant of simply increasing starting points for minimum terms. 

1.1.9 At the outset, it is necessary to remember the purpose of sentencing which is described in the Sentencing Act 2020. In cases of murder, the protection of the public is afforded by the life sentence, which includes a minimum term which must be served in full before the offender becomes eligible for parole. After release, he or she is on licence for life. However, the punishment of offenders requires us to identify the conduct and fault to which culpability can be ascribed. This assists with the reduction of crime (of which deterrence is only one part) because identification of the levels of culpability together with the relevant circumstances in which it is formed, means that it is possible to identify and quantify risk. Once risk is appreciated, then we can begin to prevent domestic homicide.

--oo00oo--

Dominic Raab published a statement:-

WRITTEN MINISTERIAL STATEMENT 

Domestic Homicide Sentencing Review 

Tackling violence against women and girls is a top priority for this Government and we are committed to ensuring that the most serious offenders spend longer in prison. Women should feel safe in their own home and our sentencing framework must reflect the seriousness of violence and abuse committed by those closest to them. 

The Government commissioned an independent expert, Clare Wade KC, to review sentencing in domestic homicide cases to establish whether current law and sentencing guidelines are fit for purpose and identify options for reform. 

Today, I am publishing Ms Wade KC’s Domestic Homicide Sentencing Review (the ‘Wade Review’) and announcing a package of proposed reforms to change the law so that sentencing reflects the seriousness of domestic homicides. The published review can be found here: https://www.gov.uk/guidance/domestic-homicidesentencing-review. 

The Wade Review makes a number of other recommendations and the government's position will be outlined in a full response to be published before the summer recess. The measures announced today demonstrate our commitment to delivering tougher sentences for the perpetrators of these horrific crimes and allow for necessary legislation to be introduced as soon as possible. All recommendations in the review and the measures announced today apply to England and Wales. 

We will increase sentences for murderers with a history of controlling or coercive behaviour against the victim. 

The Serious Crime Act 2015 introduced the criminal offence of controlling or coercive behaviour. Controlling or coercive behaviour can comprise economic, emotional or psychological abuse. It does not relate to a single incident, but a purposeful pattern of behaviour over time. Controlling or coercive behaviour by the perpetrator towards the victim was identified in 51% of the murder cases analysed for this Review. 

Despite around a quarter of all homicides being classed as domestic, the legislation which sets out the sentencing framework for murder does not currently specifically account for the abuse that the victims in these cases often experience before death. 

The review recommends that a history of coercive or controlling behaviour should be added to the statutory aggravating factors to murder. We will introduce legislation to make this change as soon as possible to ensure abuse experienced before death is properly considered and serious offenders are kept off our streets for longer. 

We will consider further reform by consulting on whether the starting point should be 25 years for murders preceded by controlling or coercive behaviour. 

While the addition of a history of coercive or controlling behaviour as a statutory aggravating factor to murder will be an immediate step to increase sentences, we do not rule out further reform to ensure perpetrators are kept behind bars for longer. 

We will launch a public consultation this summer seeking views on whether there should be a starting point of 25 years for cases of murder where the perpetrator has controlled or coerced the victim before killing them. The current sentencing framework recognises the particular seriousness of the illegal possession and use of knives in public with a 25-year starting point for murders where a weapon used has been taken to the scene with intent. It is important that this starting point is maintained and therefore we will not be accepting the recommendation made in the Wade Review to disapply it from domestic cases. The sentencing framework must recognise the seriousness of anyone who walks onto our streets with a knife, intending to use it to cause harm. However, the changes announced today will ensure that the framework also recognises the particular seriousness of domestic murder, and this consultation will ensure all reform options have been fully explored. 

We will make ‘overkill’ a statutory aggravating factor in the sentencing framework for murder.

Overkill is defined in the Wade Review and wider literature as the use of excessive or gratuitous violence, beyond that necessary to kill. It amounts to violation of the body and causes intense distress to the families of victims. Overkill is prevalent in domestic murders and was identified in 60% of the cases analysed for this Review. 

The Wade Review recommends that overkill should be added to the statutory aggravating factors to murder. This would mean that a judge must consider increasing an offender's minimum custodial term where overkill has occurred. We will introduce legislation to make this change as soon as possible. It will ensure that the horror of overkill is recognised in statute and that the anguish it causes the families of victims is taken into account when sentencing such cases. 

Building on our ban of the ‘rough sex defence’ in the Domestic Abuse Act, we want to see longer sentences for perpetrators of so-called rough sex manslaughter. We are requesting that the Sentencing Council update their guidelines and will keep under review the need for legislation. 

The government is clear the ‘rough sex defence’ is not recognised in law as a person is legally unable to consent to “serious harm”, including where it results in death. However, there continues to be concern about apparent low sentences given in some cases of manslaughter where consent to so-called rough sex is argued. 

The review recommends manslaughter sentencing guidelines should be amended to consider the offender highly culpable where death occurs during violence alleged to be consensual during a sexual encounter, and therefore impose a higher sentence. 

The production or revision of sentencing guidelines is a matter for the independent Sentencing Council. However, today I will ask the Council, which has a statutory duty to consider my request, to consider revising sentencing guidelines to reflect the recommendation made in the Wade Review. While this is our preferred approach, we will keep legislative options under review to ensure we can deliver reform. 

These measures build on our zero-tolerance approach to violence against women and girls by ensuring that sentencing delivers justice for the victims and families. 

I am very grateful to Clare Wade KC for her work on this review. I would also like to pay tribute to Carole Gould and Julie Devey for their tireless campaigning after the tragic murders of their daughters, Ellie Gould and Poppy Devey-Waterhouse.

Dominic Raab MP

Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice

--oo00oo--

Clare Wade KC has responded:-

The Government has responded in part to the recommendations which are contained in my Review.

I am pleased that the issues which are raised in the Review are being taken seriously. I have concerns that Domestic Homicides comprise so many of the killings of women by men. In particular, I welcome the news that the harms consequent on “overkill” (as defined in the Review) are to be recognised in law.

However, the model which I have used in the Review has been constructed in an attempt to address all of the harms which obtain in these types of cases while simultaneously avoiding unintended consequences. This was implicit in my terms of reference which involved looking at the sentencing of killings by perpetrators of domestic abuse and at sentences for perpetrators of killings who are victims of domestic abuse. The Review makes clear the law in this area is gendered.

It is important that women who are the victims of controlling and coercive behaviour have access to justice when they have struggled, and sometimes, fought to resist the fear and entrapment caused by controlling and coercive behaviour. If controlling and coercive behaviour is to be a statutory aggravating factor then it should also be a statutory mitigating factor because ultimately it is a way of ascribing seriousness to the individual offence. This is what I recommended. The Government has only so far announced that it is to be a statutory aggravating factor.

I fear that making overkill a statutory aggravating factor in the absence of adopting the other recommendations I have made will lead to injustice. In relation to controlling and coercive behaviour, there should be training across the criminal justice system and controlling and coercive behaviour should mitigate the seriousness of murders committed by victims who kill their abusers.

I am concerned that, to date, there has been no response to my recommendations on strangulation and the use of weapons. Both issues present the gendered nature of the law in acute form.

I would encourage people to read the Review in its entirety as the theory and policy underpinning the 17 recommendations which I have made cannot be fully appreciated by looking at recommendations in isolation, in part, or in the abstract.

Ultimately I would like to see a proper forensic approach to domestic abuse within the criminal justice system. This is what is lacking at the moment and that is what the proposals in the Review are designed to achieve.

I note the Government’s intention to consult on the idea of a 25-year starting point for domestic murders. For the detailed reasons which are set out in the Review, I am against the idea of introducing more starting points into the sentencing framework for murder.

I welcome informed debate on the issues raised and on all of the recommendations and look forward to the full Government response.

Clare Wade KC

Reading the Runes

These are strange times indeed as we wait to see how the Tories find a new leader and wonder what it will all mean for the future of our extremely-troubled criminal justice system. To assist us, Rob Allen has been reading the runes:- 

Sentencing Blues?

Justice Secretary David Gauke told MPs this week that he had tried out a GPS electronic tag that had monitored his whereabouts for two days. The question is where he will be after July 22 - the date a new Prime Minister will be in place - and more importantly what will become of his plans to reform sentencing.

On the abolition of short prison terms for most offences, Gauke told the Commons “we are working towards having firm proposals by the summer”. I read that as at best a White Paper. At worst the proposals may not see the light of day.

Why? For one thing, it’s hard to see a traumatised probation service being able to up its game in time. More importantly, a new Downing Street regime eager to reclaim Conservative supporters from the clutches of Nigel Farage, may be reluctant about -or hostile to - a policy that can be made to look soft on crime.

Conservative Home and Justice Secretaries have embraced a wide spectrum of views over the years - with hardliners like Leon Brittan, Michael Howard, and Chris Grayling, as likely to forge penal policy as the more liberal Douglas Hurd, Michael Gove and now Gauke.

Tory Prime Ministers have varied too in the interest they have shown in criminal justice. Margaret Thatcher surprisingly let Hurd (with his special adviser David Lidington) pursue a moderate Home Office agenda, culminating in a 1991 Criminal Justice Act which aimed to reserve prison for the most serious cases. By contrast, John Major’s desire to condemn a little more and understand a little less gave a green light to Howard’s baleful notion that Prison Works - though it was actually revisions to the 1991 Act by Ken Clarke - usually thought of as a liberal - which started the punitive counter revolution. Cameron’s attachment to prison reform was as superficial as it was hyperbolic- something that might be said of Gove’s tenure as Justice Secretary too.

Of the current leadership contenders, for what it’s worth, I’d place Leadsom, McVey, and Raab - all from the right of the party - in the punishment camp with former prison ministers Gyimah and Stewart, with Gove in the more rehabilitative tradition. The others are harder to call. Javid looks a far from liberal Home Secretary but has endorsed a public health approach to violence. Hancock, though Health Secretary denounced that approach, seemingly badly briefed. Hunt is socially liberal, though suggesting in 2010 that hooliganism played a role in the Hillsborough disaster raises questions. As immigration minister, Harper piloted the “Go Home or Risk arrest Vans, which he apparently doesn’t regret.

What of the favourite? A recent Telegraph piece by Boris Johnson promised a harder line, on serious offenders than “our cock-eyed crook-coddling criminal justice system” currently provides. Yet as London Mayor, he funded an interesting resettlement programme at Feltham YOI though then proceeded to overclaim its success.

Many factors influence a politician’s stance on crime as on anything else. For good or ill, ideological preferences can be modified by short term political calculation, affordability, technical feasibility even personal experience. I’ve seen it suggested that Tony Blair’s tough approach to crime was at least reinforced when his mother in law was the victim of a mugging.

It’s possible Johnson might allow a modest attempt to reduce short sentences alongside a more restrictive regime on early release for those on longer ones. Offsetting a positive reform with a crackdown elsewhere would be nothing new.

40 years ago, Thatcher’s first Home Secretary William Whitelaw tried to introduce a more generous early release scheme to reduce prison numbers but is mainly remembered for notorious short sharp shock Detention Centres. Making prisoners serve longer will lead to a potentially large increase in the prison population, even if short sentences fall. This is what seems to be happening in Scotland where despite a presumption against short prison terms, the overall numbers behind bars have gone up. If something similar is the political price to pay for Gauke’s reforms, they could prove something of a pyrrhic victory. Lets hope its not a price that has to be paid.

Rob Allen

Rory Flies a Kite

In the well tried and tested way of politicians, Rory Stewart has decided to take the risk of being labelled 'soft' by running the idea of a ban on short prison sentences and see what the reaction is from the Tory faithful poring over their weekend Telegraph magazine. 

Of course it's precisely this political meddling in criminal justice policy for electoral advantage that got us into the present omnishambles. The idea completely ignores the fact that TR having all-but destroyed the previous gold standard Probation Service means that Magistrates and the public now have little confidence in community alternatives to prison - a situation created by his former party colleague Chris Grayling. This from the BBC website:- 

Ministers consider ending jail terms of six months or less

Ministers argue that short jail terms are less effective at cutting reoffending than community penalties. Prisons minister Rory Stewart told the Daily Telegraph that such sentences were "long enough to damage you and not long enough to heal you". If such jail sentences were to be scrapped it is thought it could free up thousands of prison places. Some burglars and most shoplifters are among those who could be spared jail terms under the proposals.

The Ministry of Justice is considering preventing courts from imposing prison terms of less than six months unless the sentence is for a violent crime or a sexual offence. The measure could reduce the prison population by around 3,500, although it would require legislation. In Scotland, a presumption against prison sentences of less than three months is already in place and is due to be extended to 12 months.

Arguing for the need for reform, Mr Stewart told the Daily Telegraph Magazine: 

"You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation. They come (into prison), they meet a lot of interesting characters (to put it politely) and then you whap them on to the streets again. The public are safer if we have a good community sentence... and it will relieve a lot of pressure on prisons."

Since they took up their posts last year, Justice Secretary David Gauke and Mr Stewart have both made it clear they want to reduce the use of short prison sentences. The prison population has doubled in England and Wales since the early 1990s, rising from around 40,000 to more than 80,000 in 2018, official figures show.

Almost two-thirds of prisoners released after sentences of less than 12 months reoffend within a year. More than half of the 86,275 offenders sentenced to immediate custody in England and Wales in 2017 were handed sentences of six months or less, according to a Parliamentary response from Mr Stewart to shadow justice secretary Richard Burgon last month.

Mr Stewart said he realised that the proposals could provoke a backlash against "soft justice" by people in his own party and the public, but said it was "a debate I have to win". In August last year he vowed to resign in a year if he was unable to reduce drug use and violence in 10 target jails in England.

The Prison Reform Trust, which has previously called for a presumption against short prison sentences, welcomed the new proposals. Peter Dawson, the charity's director, told the Telegraph: "Ministers should be congratulated for having the political courage to start the debate."

An MoJ spokesperson said: "As we have said previously, short sentences are too often ineffective, provide little opportunity to rehabilitate offenders and lead to unacceptably high rates of reoffending. That's why we are exploring potential alternatives, but this work is ongoing and we have reached no conclusions at this time."

No Prison Reform Without Probation Reform

As every day goes by, more and more attention turns to the effects of Grayling's disastrous TR and prison policies and we know the government cannot ignore things for much longer. There continues to be much discussion as to how the prison population can be reduced, but nothing will work unless the damage inflicted upon the probation service is rectified. So, while we continue to await an 'announcement', here is the Criminal Justice Alliance with some suggestions for Rory Stewart:- 

HOW TO START REDUCING THE PRISON POPULATION

Dear Rory, 

Thank you so much for coming to speak to CJA members in May and articulating your determination to address some of the prison service’s most pressing operational challenges. The present level of the prison population in England and Wales is clearly one of the most significant of those challenges. 

We are encouraged by the recent small reduction in the prison population. Increasing the Home Detention Curfew caseload has been an effective way to start to reduce some of the pressure on our heavily overcrowded prison system and providing a managed transition for prisoners into the community. But more must be done. 

You said at our recent Members Meeting that you’d be happy to receive suggestions on how the prison population might be reduced, without compromising public safety. Possibilities for this in eight areas are enclosed. None of these proposals is revolutionary. 

They’re almost all both pragmatic and incremental. Many could be effected without legislation. Their implications for a reduction in the prison population of some 12,000 during the lifetime of this parliament are based on conservative assumptions. 

Any such reduction in the prison population also offers the possibility - based on similarly cautious estimates – of saving £900m of public money. The attached schedule details these savings. 

We hope these suggestions – based on knowledge shared by many of the CJA’s member organisations – will be helpful. Thank you for asking us to share them with you. We look forward to continue working with you to support efforts in reducing the prison population. 

Yours sincerely, 

Nina Champion Director, CJA

1. IPP Sentences 

The current IPP (Sentences of Imprisonment for Public Protection) population stands at nearly 2,900. Almost 90 per cent of these prisoners have served beyond the tariff deemed necessary as appropriate punishment for their offences. Without further intervention, the Parole Board acknowledges this figure may reduce to 1,500 by 2020. But this number remains unacceptably high, and the Government could be more ambitious in its approach, ensuring the IPP prison population reduces to less than 500 prisoners by 2022. (Net saving allowing for costs of external supervision £202.2m.) 

In our view, the Ministry of Justice should consider legislative intervention to convert posttariff IPP sentences to determinate sentences – a simple solution providing firm release dates. As CJA member Prison Reform Trust highlights, people serving IPP sentences have one of the highest rates of self-harm in the prison system. Providing a clear release date may help reduce this rate. 

As a minimum starting point, the 459 IPP prisoners serving tariffs of less than two years could have their sentences converted, expanding to the 1,176 IPP prisoners with tariffs of less than four years, then scaled up appropriately. A ‘sunset’ provision could also provide a release date for some or all post-tariff IPP prisoners by a particular year or by a number of years post-tariff. 

In the meantime, the availability of courses conditional for the release of IPP prisoners must continue to be prioritised. 

Once IPP prisoners are released, much more needs to be done to ensure that they do not return to prison. There is growing concern about the number of people serving IPP sentences who are recalled following release – currently over 800 prisoners. Nearly two thirds of those currently recalled are re-released following review by the Parole Board.This may necessitate a review by the Ministry of Justice of the licence conditions in the Prison Instructions. Further, people serving IPP sentences are often deeply institutionalised and require intensive independent advocacy support to facilitate their resettlement in the community. Many CJA members provide this type of support, but further investment is needed.

2. Recall 

On any given day in 1995, there were fewer than 200 people in prisons for recalls. In March 2018 there were over 6,000. 6 Over half – 58 per cent – of these had not been charged with a further offence, and were instead recalled for other licence breaches, such as failure to keep an appointment on time, or drugs and alcohol issues. And many people ‘recalled’ to prison did not receive a custodial sentence in the first instance.

There is little doubt that the extension of post-sentence supervision to those sentenced to less than 12 months has contributed to the rise in the recall population. Further, new Sentencing Council guidelines for sentencing breaches (effective from1 October 2018) will have custody as a starting point for even minor breaches. It is recognised that this ‘could have an impact on the prisons, with more offenders being sent to custody than at present’.

Recalls are costly interventions that interrupt the effective reintegration of former prisoners. The Ministry might review both the standard and extra licence conditions that Offender Managers can impose, as well as the mechanism for recalling a person following breach, emphasising that recall should be preserved for those presenting a serious risk to the public or genuinely failing to progress towards reintegration. 

But the best way to prevent an unnecessary recall is to ensure there is no breach in the first place, by providing effective rehabilitative support. Unfortunately, as highlighted in the Justice Committee’s recent review, probation services are critically underperforming and the effectiveness of Transforming Rehabilitation is in serious doubt. Securing accommodation is particularly problematic, especially for young people leaving custody, and recalls cause critical disruption to an already challenging process. 

Recognising that there will be some situations where someone may need to be recalled where there has been no further offence, keeping even 3,000 people out of prison and in the community where productive rehabilitation can take place could save £231.8m net over four years. 

3. Remand 

Those on remand – 9,200 people – now represent over ten per cent of the prison population. One in seven – nearly 1,400 – go on to receive non-custodial sentences. Ensuring this cohort is not needlessly kept in prison could save £39.9m annually.

The numbers are particularly stark for those remanded in custody and tried in the Magistrates’ Courts – of the 22,300 defendants annually, a quarter are acquitted and a third receive a non-custodial sentence. 

The Legal Aid Sentencing and Punishment of Offenders Act 2012 properly introduced a test of ‘no real prospect’ where remand should not be sought for an un-convicted defendant where there is no real prospect of a custodial sentence. CJA Member Transform Justice has noted that the law is largely satisfactory and compliant with international standards. However, in practice its implementation results in many defendants being remanded when other alternatives are or should be available. The Crown Prosecution Service, defence advocates and judges should ensure this test is applied much more rigorously. Greater use of electronic monitoring might also be considered as an alternative to remand.

4. ‘Sentence Creep’ 

Average sentence length for prisoners held for indictable offences is 30 per cent higher than ten years ago, up from 15.2 months to 20. There is no firm evidence that this ‘sentence creep’ has had any deterrent effect. 

If average sentence lengths had remained the same as in 2007 just for drug offences, fraud and theft, there would be approximately 2,000 fewer people in prison, saving £57m annually. (Research by data analysts Justice Episteme suggests that had sentencing policy for serious offences remained the same since 2003, there would be 16,000 fewer people in prison.) 

Change in this area will need to be incremental and the effects are unlikely to be seen immediately (unless changes are applied retrospectively to those already serving inflated sentences, such as an early release to electronic monitoring for low-risk prisoners). But without changes to sentencing practices, there seems little prospect of the vast bulk of the prison population reducing. 

More scrutiny could usefully be applied to the creation of sentencing guidelines by the Sentencing Council in the context of stretched prison resources and the effectiveness of custodial sentences. For instance, sentencers might be encouraged to sentence more creatively, restricting the requirements to use the upper limits of guidelines and allowing them to sentence below the lower limit. 

In 2017, the Sentencing Council admitted that increased severity of sentences for nondomestic and aggravated burglary offences ‘may be attributable’ to the introduction of the guideline for these offences. The Council has committed to reviewing this guideline, but as a priority, it should also commit to greater investment in assessing the impact of all guidelines, particularly those for high-volume crimes. 

5. Short Sentences 

At March 2018, 5,340 prisoners in England and Wales were serving sentences of less than 12 months. Short sentences are demonstrably less effective than community sentences at reducing recidivism (and more costly). Justice Secretary David Gauke has recently recognised this, stating that short sentences should be a last resort. Short-Sighted, a campaign by CJA member Revolving Doors, highlights that half of all people sentenced to custody are serving sentences of less than 6 months. 

Scotland introduced a presumption against custodial sentences of three months or less in 2010, and last September announced plans to extend this presumption to sentences of less than 12 months. Other countries with similar provisions include Belgium and Germany.

There may be certain instances for which this presumption against a custodial sentence would not be deemed appropriate given the interests of, and risks to, the victim and wider community. But if reductions occurred at a similar rate as in Scotland, there would be 2,000 fewer people in prison. Introducing a presumption against short sentences of less than 12 months could save £57m annually. 

6. Mental Health 

There is currently insufficient data to accurately measure the number of people in prison suffering from poor mental health. But as recently as 2016, the Centre for Mental Health estimated that 90 per cent of the prison population have mental health problems, personality disorders, or substance misuse problems. 

The 2009 Bradley Review found an estimated 2,000 prison places per year could properly be saved if individuals who receive short custodial sentences and who may be experiencing mental health problems were instead given a community sentence. This would save £57m. For many people with mental health issues, a community order with a Mental Health Treatment Requirement (MHTR) would be transformative and the prison estate, in any case, is all too often entirely inadequately equipped either to treat them or address their offending behaviour. 

In order to effect any such change, sentencing guidelines on MHTR would need to be strengthened. CJA member JUSTICE has also called for a Sentencing Guideline on mental health and vulnerability to be created. Despite revised guidance issued by the Ministry of Justice four years ago, there has not yet been a significant increase in the use of MHTRs, so there is still significant scope for further uptake. As identified by the Offender Health Research Network, the purpose, process and eligibility for MHTRs should be described by the Ministry of Justice and Department of Health in collaboration.

Magistrates and judges might also require additional training to raise awareness of the use of MHTRs attached to community sentences, though emphasis should be on their availability and inclusion in pre-sentence reports. 

7. Women 

At the end of March 2018, 1,250 women were in prison for non-violent offences - either theft, fraud or drug offences.23 Serious concerns have properly been raised about the necessity of custodial sentences for such women, when the vast majority could serve a sentence in the community without posing a threat to public safety. It is alarming that any woman is imprisoned in 2018 for TV licence non-payment. 

Of the 852 women sentenced to prison for drug offences since 2016, 240 were sentenced to three years or more.24 This small group aside, there remain 1,000 women imprisoned for non-violent offences whose sentence could better be served in the community, saving £28.5m.

CJA member Women in Prison’s 2020 campaign – to halve the women’s prison population to 2,020 (or fewer) by 2020 – highlights how alternatives to custody such as Women’s Centres and community support services result in lower reoffending rates than prison. Further, sending a woman to prison for a short period of time can have a significant impact not only on the woman herself, but also on any dependent children, which in turn can lead to additional costs needing to be funded by the state, such as foster care. 

In order to effect this change, sentencing guidelines would need to be amended and steps taken to address funding of women’s services, particularly Women’s Centres. We welcome the pledge in the Female Offender Strategy to commit £5 million to community provision for women to address offending behaviour.

However, there are serious concerns that this is an insufficient amount to achieve the strategy’s aims. Moreover, it is a pittance in comparison to the £50 million originally earmarked for the now scrapped plan to build five community prisons. 

As of March 2018, there were 500 women serving sentences of less than 12 months.26 These women would almost certainly be better rehabilitated in the community with access to appropriate treatment and without disrupting existing housing or childcare arrangements. This would save £14.3m. 

8. BAME people 

If the demographic of the prison population reflected that of England and Wales, there would – as noted recently in David Lammy’s review of black, Asian and minority ethnic (BAME) representation in the Criminal Justice System – be 9,000 fewer BAME people imprisoned, the equivalent of 12 average-sized prisons. If just ten per cent of these were diverted, this would save 900 prison places with (net) savings of £25.7m. 

As highlighted in the Review, one of the reasons for this disproportionality may be the association between ethnic group and likelihood of receiving a custodial sentence. Black people are 53 per cent more likely than white people to be sent to prison for an indictable offence at the Crown Court.

Lammy also highlighted the need for increased trust in the criminal justice system amongst BAME defendants, who were found to be more likely to opt for trial in Crown Court due to their higher confidence in the fairness of juries than in the fairness of the Magistrates’ Court. It recommended sensibly that all sentencing remarks in the Crown Court be published, to make justice more transparent and comprehensible, thereby building trust. Similarly, CJA member Centre for Justice Innovation advised that to improve the criminal court experience for BAME defendants, judges, magistrates and court staff should be trained in better courtroom engagement. 

Other recommendations in the Lammy Review include the CPS considering its approach to both gang prosecutions and to how Modern Slavery legislation could be used to prevent the exploitation of vulnerable young people and for identifying information to be redacted from case information passed to the CPS by the police to allow for ‘race-blind’ decisions. The 35 recommendations of the Review, if implemented, could significantly reduce the numbers of BAME people in prison.