Not Saussure

November 9, 2006

Reid’s new sentencing proposals… not what the tabloids thought.

Filed under: Law, UK — notsaussure @ 9:44 pm

John Reid’s discussion document on sentencing has now been published (.pdf here).

Most of the pre-publicity has concentrated on the way minimum terms are calculated and expressed when judges award life sentences to particularly dangerous offenders like Craig Sweeney. The discussion document of course understands, even though tabloid editors don’t, that the problem’s wholly of Parliament’s making (it doesn’t express it quite those terms, obviously) because of the provisions of David Blunkett’s 2003 Criminal Justice Act.

This ‘labyrinthine’ act, which is at times contains provisions ‘manifestly inconsistent with each other’, tried to take sentencing out the hands of judges — who, of course, just don’t get it half the time — and let MPs — who, along with newspaper editors, know everything about everything — show them how it’s done. The discussion document attempts to undo some of the damage. Some of the proposals are cosmetic, though none the worse for that; they suggest, for example, having judges express life sentences with a minimum period before parole can be considered in the American style (‘six to life’), on the depressing though not unreasonable assumption that most of us are more familiar with the American legal system than with out own. It would mean the same, but it’s a bit more catchy than

“It will only be after you have served that period that the Parole Board will be entitled to consider your release. It will only be when it is satisfied that you need no longer be imprisoned for the protection of the public that it will be able to direct your release….You and more importantly the family of J and the public should understand that an early release in your case is unlikely.”

which is what the judge told Sweeney.

Other proposals include amending the law to allow the judges discretion, in exceptional cases like Sweeney’s, to depart from the rules Parliament has set down for them and award a longer minimum period than at present they can. It’ll probably only be an issue in very few cases, but seems a reasonable idea to me if only to quieten down the tabloids.

More interesting and significant is the discussion of what you do with people serving determinate sentences. They’re at present eligible for automatic release on licence half-way through their sentence, after which they’re subject to supervision for the remainder and are also subject to recall to serve the unexpired portion of their sentence (in whole or in part); that is, someone sentenced to four years will be released on licence after two but may, for whatever reason, be recalled at any time during the following one year and 364 days to serve the outstanding two years. The discussion document raises the question of what do you do about a serving prisoner who gives cause for concern that he’s going to be a danger on his automatic release. At present, there’s no option but to release him and watch him like a hawk until he gives you an excuse to recall him.

More significant still, though, and worthy of more consideration than I’ve so far been able to give it, is the section on what you do about more minor offences. The document frankly acknowledges that a lot of people are in prison who shouldn’t — e.g. the mentally ill — or needn’t be there:

There are often better options than imprisonment for dealing with less serious non-violent offenders. More of these offenders should be dealt with through robust community sentences that ask a lot of them. Community orders are often more challenging than a short period in custody for less serious offenders. The community order, introduced by the Criminal Justice Act 2003, allows sentencers to attach requirements to the order to match the seriousness of the offence and the risks posed by and needs of the individual. Twelve requirements are available to be used with the community order including unpaid work, a curfew backed by a tag, drug rehabilitation, programmes to tackle the offender’s behaviour and supervision. The evidence so far is that the courts are not using community orders as fully as they might. The anticipated switch to these new community sentences from short terms of imprisonment that was envisaged has not happened but is a crucial part of the package of sentencing reform we wish to achieve.


Less serious offenders should be fined rather than given low-level community sentences. These are now much better enforced, hit offenders in the pocket and save taxpayer money. The use of fine has decreased significantly in the last 10 years (for indictable offences). Rebuilding the use of the fine will avoid probation being overloaded by low-level offenders serving community sentences. We are committed to achieving a shift back towards fines.

We must also do more to tackle prolific offenders, including drug users to try to prevent their re-offending. We are overhauling the priority and prolific offenders and drug intervention programmes to ensure that the highest crime causing drug-users are identified and targeted with more treatment and tougher conditions in the community, tougher enforcement and new follow-up assessments.

All this will, as the discussion document acknowledges, put a greater strain on the resources of the Probation Service. It suggests — in what will, I suspect, be highly contentious proposals — giving the Probation Service the power to punish breaches of the Community Order (e.g. not turning up for unpaid community work sessions) rather than having them take the matter back to court, as they have to at present. Of course, this causes huge problems in that it gives the Probation Service a quasi-judicial function, and I’m not at all sure how they or the courts will feel about this.

It also, in what again will be somewhat contentious, suggests removing the courts’ powers to impose community orders for various non-imprisonable offences, thus forcing them to impose fines. The rationale is to enable the Probation Service to concentrate its resources on supervising more closely those on whom community orders are imposed.

The subtext of this, of course, is that the courts have been getting too tough and that we’ve had inflation in sentencing; people are being sent to prison who should be given community punishments and people are being given community punishments who should be fined; the discussion document says

Sentencing has become tougher, with offenders more likely to get a prison sentence for almost any offence and that sentence is likely to be longer. In the last 10 years the custody rate for indictable offences in the Magistrates Court has more than doubled, increasing from 7% to around 15%, while the average sentence has remained around 3 months. In the Crown Court the custody rate has increased from 53% to 61% and sentence lengths have increased by some 6.6 months to reach an average of 27 months. The Criminal Justice Act 2003 introduced a new framework designed to achieve a better balance by enabling us to focus our custodial resources on dangerous offenders by providing longer prison sentences for them while providing tough new community orders for those who for whom prison is not the most effective response. So far the evidence is that the courts have made good use of the new sentences for dangerous offenders. The shorter sentences which were anticipated for non-dangerous offenders (as reflected in the guidelines about the new sentences issued by the Sentencing Guidelines Council) have not, however, materialised. Early evidence also suggests the new Suspended Sentence Order may be being used in cases where a community order would be appropriate.

Don’t see that going down too well with the Sun and the Mail.

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