Range of recommendations

This is one of the central chapters of the Review which has so many recommendations that I can only summarise them briefly in this post. Readers may wish to read the source material themselves on any of the key recommendations here. For the same reason, I’m not going to rehearse the Review’s arguments for sending fewer people to prison but dive straight into the detail.

Legislate to reduce short sentences

Mr Gauke’s primary recommendation is for the Government to pass new legislation “to ensure short custodial sentences are used only in exceptional circumstances”. While making it clear that he is not seeking to abolish short sentences, Mr Gauke estimates that such legislation could save around 2,000 prison places. He does not suggest the wording of such legislation but makes it clear that there must be a new law. This is, presumably, because neither the Sentencing Act 2020 which states that a custodial sentence must only be imposed as a measure of last resort where an offence is “so serious that neither a fine alone nor a community sentence can be justified nor Sentencing Council Guidelines have succeeded in reducing the number of short sentences.

Extend the upper limit of Suspended Sentence Orders to three years

The Review also recommends that SSOs can be made for three years instead of the current maximum of three. While it estimates that this could reduce prison demand by around 1,300 prison places, many will be sceptical that a large proportion of people who are given a three year SSO would have only got a two year one under current legislation.

Deferred sentences

A parallel recommendation is the increased use of deferred sentences. There are four specific recommendations on this issue including extending the current deferment period to 12 months. We lack robust data on this issue (primarily because a deferred sentence is not the final sentence so is not recorded on our main systems) but there is a consensus that it is much more rarely used than it used to be. There is evidence that deferred sentencing has shown “promising results” in other countries including New Zealand & Northern Ireland.

Mr Gauke recommends these should be used in particular for low risk offenders who could be monitored by Third Sector organisations, reducing workload on the probation service.

Serious Crime Prevention Orders

The Review also covers the distinct issue of those involved in organised crime who continue to run criminal enterprises from within prison. It recommends that Serious Crime Prevention Orders are lengthened to allow them to apply for the duration of an offender’s time in custody as well as for five years after release. SCPOs enable law enforcement agencies to monitor bank accounts and disrupt and restrict business dealings. Restrictions can be wide-ranging and can, for example, include financial reporting requirements, stipulations on who a person associates or communicates with, and the means used to do so.

The Review says that the aim of extending SCPOs to cover time spent in custody would be to disrupt criminal enterprises, assist the recovery of the proceeds of crime through closer monitoring and to ensure custodial sentences serve as a strong deterrent.

Strengthening confiscation orders

The Review notes that there are significant challenges with the enforcement of confiscation orders, mostly issued under the Proceeds of Crime Act 2002. HMCTS states that the total historic value of outstanding confiscation balances estimated to be recoverable on 31 March 2024 was £214 million, compared to a gross debt owed to HMCTS of £2,747 million. As many readers will be aware, there has been much criticism of the implementation of POCA in practice, with many orders targeting people (often those whose offending was driven by addiction or gambling) who have made no material gains from breaking their law and whose efforts at rehabilitation are undermined by losing homes or facing unpayable debts.

The Review is clearly aware of this issue and:

“underlines the importance of confiscation orders being imposed on those who have gained significant wealth from their crimes, to make sure orders are used in a way that targets the right people who have the means to pay. Orders must also be proportionate and realistic to avoid increasing the prison population with offenders who are unable to pay the orders.”

Criminal receivership

The Review asks Government to consider introducing a tougher financial penalty in the form of criminal receivership which would be an evolution of the concept of criminal bankruptcy. The concept of criminal bankruptcy has historical precedent and compels the redistribution of someone’s assets.

It sets out a model of ‘criminal receivership’ which should be aimed at criminals who have gained significant wealth from their crimes. A receiver would manage or sell the offender’s assets in satisfaction of the order. This model would allow the seizure of assets over any time frame without granting debt relief, ensuring the measure remains an appropriate form of punishment rather than support.

The Review also suggests that any new form of Criminal Receivership could also be ordered in suspended form, with the suspension conditional on the offender making full payment of financial loss to victims or other forms of compensation. 

Conclusion

It is clear that the central argument of the Review is that incarceration should be mainly reserved for those committing serious crimes of violence or those making significant profits from their criminal endeavours. It urges that those whose offending is driven by their addiction, mental health or other problems should, wherever possible, be offered support to address these issues in the community.

The next post in this series summarises Chapter Four of the Review on incentivising progression from custody to community.

Thanks to Andy Aitchison for kind permission to use the header image in this post. You can see Andy’s work here.