A Judicial Critique
The most senior former judges in England and Wales have called on the government to reverse the trend of imposing ever longer sentences, giving warning that radical solutions are needed to address the acute crisis in prisons. In a paper published today (Friday 6 September) by the Howard League for Penal Reform, they outline how and why prison sentences have increased in recent decades and the impact this has had.
The paper, Sentence inflation: a judicial critique, is signed by the four surviving former Lords Chief Justice of England and Wales – Lord Woolf, Lord Phillips of Worth Matravers, Lord Thomas of Cwmgiedd, and Lord Burnett of Maldon – and Sir Brian Leveson, the only surviving President of the Queen’s Bench Division who was also Head of Criminal Justice.
The former judges say there is nothing to justify the fact that custodial sentence lengths have approximately doubled over the half-century that they have been involved in the law. The number of people in prison has risen from about 40,000 in 1991, the year in which the Woolf Report into the Strangeways riot was published, to more than 88,000 today.
The paper explains how legislative changes, such as the introduction of statutory starting points for the minimum terms for murder in Schedule 21 of the Criminal Justice Act 2003, have been the main drivers of sentence inflation.
Noting the human but also high financial costs of prison, it recommends that the government should be seeking to reduce to a minimum the amount of public money that has to be spent on imprisonment.
The former judges’ intervention comes the week before about 1,500 people are expected to be released from prison under an emergency measure, which reduces from 50% to 40% the proportion of custodial sentences to be served in prison for some. The government has also decided to undertake an urgent independent review of sentencing legislation and practice.
Why are there so many people in prison?
There have been two main causes of the steady rise in prison numbers that has taken place since the Second World War. The first is a continuous escalation in the length of sentences imposed for more serious offences. The second is a lack of confidence in the efficacy of non-custodial sentences for less serious offences. These factors might have been offset if imprisonment had proved an occasion for effective rehabilitation, but it has not. Other causes include the increase in the requirement for many prisoners to serve two thirds of the sentence before release, and that licence conditions now apply for the entirety of the sentence. The number of prisoners recalled to prison during this period of supervision has soared.
The issue
Contrary to public perception, official data show a long-term decline in common types of crime since the 1990s. The number of police-recorded homicides has decreased since the early 2000s and the volume of violent crime has declined significantly since a peak in 1995. This phenomenon is observed across high-income countries and researchers have explored potential causes, pointing to a wide range of socio-economic and political factors such as improved security and surveillance, economic growth, and an ageing population. There is little evidence that increased use of longer prison sentences has contributed to falling crime rates. Indeed a 2014 Pew Foundation study found that most US states who have reduced the amount they use incarceration over recent years (driven in great part by economic concerns) and have found that crime rates have gone down.
But despite these downward trends, both the number of custodial sentences, and crucially their length, have increased dramatically. The proportion of immediate custodial sentences handed down for indictable or triable-either-way offences between 2002 and 2022 increased from 25% to 34%, whilst the use of other disposal types declined.
Over the last 10 years, the average custodial sentence length for indictable offences increased from 18 months in 2013 to almost 23 months in 2024. The chart I have reproduced below comes from the most recent (August 2024) MoJ criminal justice statistics.Use of the most severe sentences has also increased. Almost 11,000 people are currently serving an indeterminate sentence, comprising 16% of the sentenced prison population and up from 9% in 1993.
The number of life sentence prisoners serving a minimum term of over 20 years more than doubled between 2013 and 2023. As of June 2024, there were 67 people serving whole life orders (compared to 43 a decade earlier). This is not only a recent trend; the length of sentences has steadily increased, and approximately doubled, over the last 50 years.
The causes of sentence inflation
The report focuses particular attention on the introduction of statutory starting points for the minimum terms for murder in Schedule 21 of the Criminal Justice Act 2003 which distorted sentencing proportionality, driving up sentences for other offences.
There have been very many other Criminal Justice Acts increasing statutory maxima (for example, for causing death by dangerous driving) and introducing mandatory minimum sentences (for example, for firearms offences, repeat burglary or drug dealing). Indeed, the extent of legislative change has not only made the judge’s job much more difficult but represents worrying influences on sentencing law and policy. Many of the changes have been driven by single-issue campaigns which attract emotive media attention.
Part of the Sentencing Council’s role is to ensure a proportionate structure for sentencing, meaning that the increase in minimum sentences for one crime will necessarily have a knock-on effect across the board. The result has been ballooning sentences.
The report also highlights the ongoing injustice of the IPP sentence with thousands of people still in prison despite having served much longer than the tariff imposed by the judge.
Action
The judges argue that The current situation is unsustainable and welcomed the decision of the new government to undertake an urgent independent review of sentencing.
They say that sentencing inflation has got so far out of control that it calls for radical solutions, setting out a number of accelerated routes out of custody for people serving lengthy sentences. Their suggestions include:
- Urgent and decisive action to safely release all IPPs.
- A review of the sentences of all prisoners serving longer than 10 years at the halfway stage and then at regular intervals.
- Reviewing the needs and risk levels of very old prisoners followed by a managed move to a more appropriate secure location if required.
- A regular review of minimum terms for people serving indeterminate sentences.
- A significant increase in the size of the Open prison estate to facilitate return to work, education and family community for those serving long sentences.
The report ends by calling for “an honest conversation” about what custodial sentences can and cannot achieve, as well as their human and financial costs. It also urges a return to “more modest and proportionate sentences across the board”.
Thanks to Andy Aitchison for kind permission to use the header image in this post. You can see Andy’s work here
