The sweet spot

Mr Gauke sets out the conflicting demands of getting a community sentence right. They need to meet a number of (sometimes competing) criteria including: offering both punishment and rehabilitation, designed to fit the specific criminogenic needs of the individual offender and not have so many requirements as to overload those sentenced to them. Giving someone with a drug problem 200 hours unpaid work and a number of other conditions is often thought to be “setting them up to fail”.

The Review traces the ongoing decline in community sentences. The number imposed each year has dropped 61% between 2010 and 2024. In the year ending June 2010, 14% of total sentences were community sentences, however in 2024 this was only 6%.

Before making a set of specific recommendations, Mr Gauke recognises that to manage increasing caseloads and to make the Review’s recommendations implementable, the Probation Service will both need to prioritise the use of its current resources and receive considerable additional investment. The Justice Secretary has already promised a possible extra £700m by 2028/29 on top of the current budget of £1.6bn.

Importantly, Mr Gauke encourages us – and, more importantly, the Government simply to “do the maths” or to use his phrase: “the delivery of robust punishment in the community must also be considered in the light of the significant resources devoted to custodial sentencing”.

The average cost of holding one prisoner for the year was estimated to be £53,801 per prisoner in 2023-24, and the Government’s planned prison build programmes are estimated to cost between £9.4 billion and £10.1 billion. The average cost to the Probation Service in 2023-24 of an additional person on the probation court order caseload (community orders and suspended sentence orders) was estimated at c.£3,150. It’s clear to see the attraction of community orders which, when properly delivered, are both better at reducing crime and much cheaper. 

Recommendations

In order to implement this shift to community sentences for crimes which currently attract short prison sentences, the Review makes a number of specific recommendations:

Revise the sentencing framework to ensure sentencers can take full advantage of the flexibility of community sentencing, including financial penalties and ancillary orders (such as travel or driving bans).

The Review wants to give sentencers more powers without encouraging them to make too many requirements on one person. Suggested powers include:

• A number of ancillary orders – such as football match bans – should not only be considered “ancillary”, and sentencers should be able to impose them as stand-alone sentences.
• The use of such options should not be restricted to ‘relevant offences’ as they currently are. So, for example, sentencers could adding driving disqualification to a community order.
• Guidelines surrounding fines should be reviewed to allow fines to be imposed more flexibly, both to achieve a more punitive outcome, where appropriate, and to avoid disproportionate punishment of low-income and low-level offenders.
• Other options to punish people in the community should be explored including social media bans – once the ability to enforce such an order were in place.

Revise sentencing guidelines and probation frameworks to broaden the scope of punishment within community orders

Again, this is about the ability to make an effective sentence in an individual case. A curfew may impose a much stronger sense of punishment on a young person than an older one. The review encourages more powers for sentencers on the basis that the requirements added to a community order service the statutory purpose of sentencing including both punishment and rehabilitation.

Increase investment in providers of Community Sentence Treatment Requirements to increase accessibility for offenders with substance misuse or mental health issues

This recommendations speaks for itself and addresses the key facts that addiction and mental health problems are the drivers of a large proportion of crime but that the number of treatment orders has fallen  significantly over the last twenty years.

Abolish the Rehabilitation Activity Requirement and introduce a broader Probation Requirement

To put it succinctly, Mr Gauke seems to have a good understanding of what practitioners, people on probation and the MoJ all know: that no-one really knows what a RAR day is and that RARs have unintentionally made it harder for probation officers to tailor rehabilitative work to individuals’ needs.

Under the proposed replacement for RAR, the “Probation Requirement”, sentencers would no longer specify a number of days to be completed but instead set the length of the total community order (i.e., weeks or months). Probation officers would then be responsible for determining the required levels of supervision for offenders as well as the required rehabilitative activity. This would include whether to terminate the Probation Requirement early if sufficient progress had been made.

Conclusions

Mr Gauke is very well aware that returning probation supervision to its more traditional strengths of working with individual people on probation in a bespoke manner will put even more pressure on a beleaguered service. He explicitly recommends making greater use of interventions delivered by other organisations, albeit still with oversight remaining with probation. Both the Review and myself return to this issue when we looked at Chapter 7 and its recommendations for the probation service.

The next post in this series examines the third Chapter in the Review: “reducing reliance on custody”.