A game of two halves
Today’s publication of the Sentencing Reform white paper has created some interesting responses from media and criminal justice stakeholders alike. On the one hand, the paper is full of “tough on crime” commitments to impose longer sentences on the most serious crimes. On the other, there are a number of more progressive initiatives promised including reform of the Rehabilitation of Offenders Act and the piloting of problem-solving courts. The Justice Secretary, Robert Buckland, describes this approach in his foreword to the white paper:
“What we need is a new, smarter approach to sentencing. A system that takes account of the true nature of crimes – one that is robust enough to keep the worst offenders behind bars for as long as possible, in order to protect the public from harm; but agile enough to give offenders a fair start on their road to rehabilitation.”
The paper is divided into five main topics:
- Protecting the public from serious offenders
- Supervising offenders in the community
- Empowering probation
- Reducing reoffending
- Youth sentencing
The paper identifies three fundamental problems in the current sentencing framework (reproduced verbatim below):
Automatic Release: Sentences passed by judges and magistrates in our courts are criticised, often not for their overall length, but for the shortness of the time offenders actually spend in custody. The blanket use of automatic early release has undermined confidence in the system. Too many serious and dangerous offenders are still released too early from custody; this risks public safety, and means the time spent in prison does not always properly fit the crime.
Improving Confidence: Confidence in non-custodial sentencing options is low, and we need to win back the confidence of the judiciary and the public in our delivery of community sentencing. Sentencers and the public need to be sure that there are effective non-custodial options for low-level offenders. We want to ensure that a wider range of non-custodial sentencing options are available to the courts, by capitalising fully on Electronic Monitoring technology, alongside enhanced community supervision delivered by a reformed National Probation Service and an expanded use of existing non-custodial conditions.
Addressing the Causes of Offending: We have not done nearly enough to tackle the causes of offending, particularly where it is driven by drug and alcohol misuse. In 2018/19, 28% of men and 42% of women entering prison reported having a drug problem. These issues are associated with offending, particularly low-level, repeat offending. Whilst we have had routes available to help treat and manage these needs in the justice system, as well as mental health needs, there have been too few options available to sentencers, and not enough confidence in the quality of these services.
It is a lengthy (115 page) white paper and I have only really listed the headline points below.
There are a raft of proposed measures in this section:
- Abolishing automatic halfway release for specified serious violent and sexual offenders who receive sentences of between 4 and 7 years.
- Preventing automatic early release for offenders who become of significant public protection concern (relates to suspected terrorists)
- Whole life orders for premeditated murder of a child
- Longer tariffs for discretionary life sentences
- Increasing the time sex offenders serving a Sentence for Offenders of Particular Concern (SOPC) must spend in prison
- Ensuring that knife (second strike) and burglary (third strike) offenders do receive current minimum prison sentences
Supervising offenders in the community
- Expanding Community Sentence Treatment Requirements (currently available in just 15 court areas)
- Ensuring community requirements are robust and responsive – the roll out of the Alcohol Abstinence and Monitoring Requirement, increasing the use of tagging but getting rid of attendance centre requirements
- House detention orders “a pilot for a new, robust community-based package for offenders who have not responded to existing community sentences. This will be based on a lengthy and restrictive curfew, which would be accompanied by other measures to address rehabilitation and prevent further offending as needed”.
- Improving PSRs for people with complex needs
- More use of deferred sentencing
- Pilot problem-solving courts
- A national ‘Call for Evidence’ to obtain a clearer picture of prevalence and the current national provision to support offenders with neurodivergent conditions in the criminal justice system.
A commitment to reform the criminal records regime, to reduce the time periods after which some sentences become spent for the purpose of some criminal record checks (see graphic above).
The balance in this section is much more on toughter custodial and community sentencing. Commitments include:
- Modernise the Detention and Training Order, the most common custodial sentence, ending inflexible fixed lengths and the prescriptive 50/50 custody-community split.
- Move the release point to two-thirds for those who receive a sentence of 7 years or more for serious violent offences relating to homicide and for all serious sexual offences to ensure that time spent in custody reflects the seriousness of the offence committed.
- Ensure age and seriousness of crime is better factored into starting points for murder sentencing, and reduce the number of tariff reviews available into adulthood for murder.
- Make greater provision in the Youth Rehabilitation Order for location monitoring and for flexibility around curfews. We will also make sure that Youth Offending Teams or probation staff (as appropriate) are the Responsible Officers for Youth Rehabilitation Orders rather than the Electronic Monitoring Provider.
- Pilot extended duration and mandatory location monitoring within the most intensive current community sentence (Youth Rehabilitation Order with Intensive Supervision and Surveillance).
- Abolish reparation orders to simplify options available to sentencers.
- Strengthen the legal tests for custodial remand to raise the threshold for imposing custodial remand and require courts to record their rationale.
Thanks to Andy Aitchison for kind permission to use the header image to this post. You can see Andy’s work here.
my research project is on sentencing of drug offenders and drug related offenders. I’m inclined towards a measure of decriminalisation and legalisation. That would probably result in a huge decrease in imprisonment of such offenders. In England & Wales we have the 2nd highest rate per 100 thousand in Western Europe, much of it I suspect due to drug/drug related offenders.
in the paper I welcome :1.Addressing the causes of offences. Doing this results in the successes of Diversionary Schemes such as Checkpoint in Durham. 2.I approve of the decision not to require DRR subjects not to have to be followed up in court. Abstinence is not possible in all cases, and maintainence (OST) would make it possible to return to a measure of normal life.3. I approve of the intention of probation stengthening the supervision and follow up processes. However this has to be combined with a robust managerial supervision to make sure it’s being done completely. 4. I approve of ‘pilot problem-solving courts’ the same idea as (1)
Thanks for this. Would be interested in your thoughts on the reasons for such a huge drop in the numbers of people on DRRs which pre-dates TR reforms.
All the best
The recent HMI report looking at PSR’s commented critically on Oral Reports in particular “Insufficient attention being given to detailing accredited programmes or other treatment requirements ” The inclusion of such programmes are often key elements in a person avoiding imprisonment.
Following a FoI (Sept 2020) request the MoJ stated that in 2018 358 women in England and 35 in Wales were sentenced to custody to 6 months or less where the report to the court was Oral. Taking note of the Inspectors view re the poor quality of Oral reports, one can only guess as to how many women were unnecessarily imprisoned as a result of deficient reports. Pressure needs to be brought to bear on courts /probation service to ensure that no one is sentenced to imprisonment on the basis of an Oral Report. In the matter of Justice speed should not be of the essence
Very true, Howard. I covered the HMIP research here: https://www.russellwebster.com/probation-pre-sentence-reports/
The sentencing white paper doesn’t clarify what MoJ is seeking to do to improve PSRs in any detail