Not Saussure

January 26, 2007

Overcrowded prisons and suspended sentences

Filed under: Law, nemesis, Panic, UK — notsaussure @ 6:39 pm

I don’t know what the government — or John Reid in particular — can have been thinking of with the now notorious suggestion to judges that they should use non-custodial sentences whenever possible; it does no more than restate sentencing policy and the media storm was an obvious consequence.

Some of the coverage is, in fact, odd, if not downright wrong. The case of Derek Williams, who was given a six months sentence, suspended for two years, for downloading child pornography and who was told that one reason he’d escaped an immediate custodial sentence was that the learned judge had to ‘bear in mind’ the Home Secretary’s circular is a case in point. The judge will also have said in his sentencing remarks that he had ‘to bear in mind’ the defendant’s guilty plea, pre-sentence report (assuming there was one), the quantity and nature of the images downloaded, his previous criminal record (two very old assaults) and the likelihood of his re-offending, but these comments don’t seem to have received equal prominence.

Certainly, it’s by no means clear that Mr Williams would otherwise have received an immediate custodial sentence. We don’t, for example, know the exact nature of the images he downloaded; there’s an established classification system and tariff in these cases and, given the number of images (200) to which he pleaded guilty, it sounds to me very much as if it was a one-off download of a zipped folder, which is how these things are frequently distributed by commercial websites. The defendants don’t really know exactly what they’re downloading — they know it’s child pornography they’ve bought, obviously — and in my experience a suspended sentence wouldn’t be particularly unusual for someone who’d been found once to have downloaded a collection comprising mostly category 1 (images depicting erotic posing with no sexual activity) with some category 2 (sexual activity between children, or solo masturbation by a child) material. The guy would be fortunate to escape immediate custody, certainly, but it wouldn’t be especially noteworthy.

Indeed, it might be argued that the suspended sentence is often a more sensible disposition in these lower sentencing bracket cases. If he’d have received an immediate custodial sentence of six months, he’d have been out in three months and under the supervision of probation service for a further three. As it is, he’ll be under a supervision order for (I would imagine, but it doesn’t seem to have been reported) 12 months, during which time he’ll have to attend various courses designed to address his offending behaviour. If he doesn’t, then he goes off to prison. And, of course, if he gets into any more trouble during the next two years, this sentence will be activated on top of anything else he receives. It’s arguably as effective, if not more so, than locking him up for three months and leaving him completely unsupervised after he’s been out for another three.

The case of Keith Morris, whom the BBC thinks was ‘released’, is even stranger. He pleaded guilty to sex offences against teenagers and was released on bail pending a pre-sentence report, which the judge (in effect) has to order because the Criminal Justice Act 2003 requires him to consider an indefinite sentence for public protection. I say it’s strange because certainly in the Crown Courts with which I’m familiar (and it’s a different part of the country, so the practice may be different in Exeter) it would be by no means remarkable for someone facing an inevitable custodial sentence to have his bail extended pending a pre-sentence report after a guilty plea. Indeed, as Judge Bray (of whom more in a moment) has been known to point out — I’ve been in court when he’s said it, on more than one occasion — one of the many idiocies of current sentencing law is that the judge is frequently required by one act to presume the defendant is a dangerous offender and simultaneously presume he’s entitled to bail while a report into his actual dangerousness is prepared.

Clearly, as I say, the practice is different in Exeter; Mr Morris hasn’t really gained a great deal, since he’s going to go to prison in two or three weeks’ time rather than immediately, overcrowded prisons or not. The ‘rather unusual circumstances’ to Judge Cottle referred, which led to his extending bail rather than remanding Morris in custody while a report was prepared, must, I think, be that overcrowding at the local prison would mean that the probation service would have difficulty preparing a report had he been remanded in custody — if, for example, the sex offenders’ wing in Exeter is full and he’d have to be imprisoned in another part of the country, then I can quite see the Probation Service having difficulty preparing a report on him in time for the sentencing hearing.

I mentioned dear old Judge Bray, who told Northampton Crown Court that

“I am well aware that there is overcrowding in the prison and detention centres. That is not going to prevent me from passing proper sentences in each case,” he said.”The reason our prisons are full to overcrowding, and have been for years, is because judges can no longer pass deterrent sentences.”

The news story would be, I think, as anyone who’s familiar with Judge Bray’s practice when making his sentencing remarks would confirm, if he hadn’t taken the opportunity to complain both about politicians trying to meddle in sentencing practice or about the Court of Appeal — with whom he’s had several run-ins — not letting him send people to prison for as long as he’d like.

For what it’s worth, I’ve attended several sentencing hearings over the last couple of days, and the Home Secretary’s letter has only been mentioned once. That was by one rather desperate defence council who was promptly told by the learned judge, in rather more restrained terms than His Honour Judge Bray would have used, to be sure, to stop wasting everyone’s time since the defendant would have to go into immediate custody under current Court of Appeal guidelines and the only question was for how long.

Interestingly, the guideline sentence for this chap’s offence — a passport offence — has recently been increased ‘because of public concern,’ with the result that the chap is now going to spend some two or three months longer in a British prison before being deported to Pakistan (assuming the Home Office don’t forget, of course) than would he had he been convicted six months ago. Quite what good his occupying a prison place for the extra couple of months will do, I’m not sure, but at least public concern has been allayed.

All the other cases that came up for sentence got pretty much what one would have expected anyway. A couple of custodial sentences were suspended, but given the circumstances of the offences that was perfectly reasonable. One chap, in fact, received a suspended sentence because the length of time he’d spent on remand awaiting trial and then sentence meant that, had he been given a suitable immediate custodial sentence, he’d have had to be released within a week or so anyway; the suspended sentence at least means he’ll also have to do 200 hours unpaid community work on top of it.

Meanwhile, The Magistrate’s Blog provides an excellent example of how inappropriate ASBOs help contribute to the crisis in British prisons. Depressingly, responding to the resignation of the head of the Youth Justice Board of England and Wales, Rod Morgan, because of the effects over-crowding is having on young offenders, a Home Office spokeswoman responded to his complaint that

“We have tonight lots of people in police cells because there is no space for them in custody and that’s true for children and young people also.”I regard a 26% increase in the number of children and young people that are being drawn into the system in the past three years as swamping.”

by saying

“We remain unapologetic about the need to tackle anti-social behaviour by anyone, regardless of their age.”

Quite possibly so, but how about an apology for tackling it so badly?

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10 Comments »

  1. I think we’re being a little unfair on poor old John Reid. He’s doing his level best to produce the ASBO chav criminal society and to steal as much as he can from the coffers before he’s thrown out on his neck and all we can do is criticize him.

    Comment by james higham — January 26, 2007 @ 9:38 pm

  2. The central issue for me is the lack of joinde up government. in this case joined up department.

    harsher sentencing and no more prison places.

    More ASBO’s and state sponsored bullying; less support for legal aid.

    A damning verdict on labour’s attempt to run the system for 10 years.

    PS I admire you ability to post at such length and with such great style.

    Comment by cityunslicker — January 26, 2007 @ 10:23 pm

  3. I’m not sure there’s much difference between levels of supervision, whatever the sentence? As far as I’m aware, anyone convicted of a child pornography offence will go on to the police VISOR database for 5 years. Those on VISOR are subject to ‘Multi-Agency Public Protection Arrangements'(MAPPA)for at least the length of their registration period. In practice, child pornography is usually a MAPPA Level 1, which means probation supervision.

    Comment by archrights — January 27, 2007 @ 12:03 am

  4. Some of this is a white mutiny, the judges in question are doing exactly as they are told within the limits of the law and making sure that it is obvious exactly why they are doing it.

    I’ve seen a few of these in the military, they are normally used to embarrass someone senior who can’t find their own arse…

    Comment by The Morningstar — January 27, 2007 @ 8:01 am

  5. Glad you like my writing, CityUnslicker; complements are always gratifying, particularly from people whose blogs I similarly enjoy. I completely agree with you about the lack of joined up government; indeed, we’ve now had the astonishing admission from John Reid that no one apparently realised that sending more people to prison for longer means more people in prison.   

    A lot of the problem, too, I think, is that they’ve accepted this ‘prison works’ malarkey, which self-evidently it doesn’t, or at least not to stop people who aren’t in prison committing crimes in any significant numbers.     People commit different crimes for different reasons, of course, but the fact of the matter is that neither (for example) drug addicts committing burglaries or serial shoplifting to fund a habit, nor tanked-up young men getting into fights with each other, usually give a great deal of thought to the consequences of their actions for either themselves or others.    Even if they did, I’m not at all sure that the ones who weren’t deterred anyway by the probability that they’d go to prison would be greatly deterred by the probability they’d spend six months or a year longer there than they’ve risked hitherto (which would represent a pretty savage increase in the severity of sentencing).

    ARCH-Rights, I’m not sure I understand your point.   I’m not that famiiar with the supervision arrangements after sentencing, but a suspended sentence includes a supervision period — usually a year or 18 months — during which time the offender has to have regular meetings with the probation service and comply with any reasonable directions they give him.  These can include attending appropriate courses designed to address his offending behaviour (though those are sometimes made as separate parts of the order) and they may sometimes include living at a particular address.   If he fails to comply, they take him back to court and the custodial sentence is activated.   There’s a similar regime for serving prisoners released on licence (though in pratice it doesn’t usually involve so many courses).    

     But at the end of the supervision period (at risk period for released prisoners) doesn’t their involvement pretty much finish, unless the judge has made some separate orders?    The only actual obligation — as far as I know — on someone who’s required to sign the sex offenders register is that he does precisely that, and keeps the police notified of any change of address.    Doubtless while he is under supervision ordered by the court — for the sex offence or for anything else — the various agencies will liaise with each other, but at the end of the supervision period I think the only actual engagement with them he’s required to have is keeping in touch with his local police station for as long as he’s on the register of sex offenders.

    Morningstar, I don’t know about a ‘mutiny’.   I don’t think the judges have actually changed their practices in any way; that would be contrary to their judicial oaths (which is why they so much, and so rightly, resent Home Secretaries trying to interfere with how they carry out their duties).     I think, rather, they’re making remarks they know will be interpreted in a particular way (and, in the case of Judge Bray, just making the same remarks he always does) and the press is picking up on them.   Meanwhile, sentencing is going on pretty much as before; as I said, I’m pretty certain that the chap who was bailed for a pre-sentence report got his bail because of problems the prison and probation services were having locally as a result of overcrowding  — if he’d been remanded in custody, the court wouldn’t have got its report in time — rather than because of anything the Home Secretary has told the courts to do.

    Comment by notsaussure — January 27, 2007 @ 10:49 am

  6. Sorry, I haven’t explained it very well. As far as I know, everyone subject to sex offender notification (or convicted of a crime of violence) has to be assessed under MAPPA for the risk s/he poses to the public, and will then be supervised for as long as it is thought necessary. This is in addition to any supervision imposed in the sentence, and also applies after release from prison.

    For a low-level offender, MAPPA arrangements are normally probation supervision for the length of the offender’s SO notification period – though it can be longer. So, someone downloading child pornography will have a 5-year notification period, and will be supervised by probation for the whole of that 5 years, and longer if the probation service thinks it necessary. If you put mappa into a google, the probation circular and a dfes document come up 2nd and 3rd.

    It’s a rather controversial scheme because there isn’t a clear exit strategy, nor an obvious means of appealing against ongoing MAPPA supervision, which can be particularly problematic for juvenile offenders.

    Hope I’ve been a bit less garbled?

    Comment by archrights — January 27, 2007 @ 12:19 pm

  7. Thanks. I wasn’t aware of this — I’ve had a quick look, and it seems to be more of an information-sharing exercise between various agencies than anything else. How does it affect the offender once his period of supervision, ordered by the courts, come to an end, though?

    I mean, this chap in Wales who’s just been given the suspended sentence will have to engage with the probation service and comply with their reasonable directions for the next year (or however long the court ordered) but, after that, there’s no obligation on him to have anything to do with them, is there, or to do anything other than keep the police informed of his address for however long the court said he has to remain on the register?

    It seems to me, from my quick reading of the online materials, that various agencies with which he may have contact in the normal course of events have an obligation to share information about him, but that doesn’t involve any action on his part, does it? He may not even be aware that it’s happening.

    Comment by notsaussure — January 27, 2007 @ 12:58 pm

  8. Thought it might interest you. If all has gone swimmingly during supervision, it simply means that a Level 1 offender will be monitored until the end of the 5-year notification period. There is always a possibility of reassessment to Level 3, though, which is a far more intensive monitoring by multiple agencies that can include housing, the LEA, employment services etc. At this level, things are more open-ended -an offender will remain under MAPPA supervision until the panel believes that s/he no longer presents a risk to the public.

    The guidance says that anyone subject to MAPPA should be told what monitoring arrangements are in place.

    It’s a shame that the existence of MAPPA isn’t more widely publicised because it might offer some reassurance to those who are worried that a convicted sex offender is more or less left alone. It might counteract some of the more lurid tabloid headlines, too.

    Comment by archrights — January 27, 2007 @ 5:30 pm

  9. Top post NS. Much as I dislike John Reid, he’s had a raw deal over this. The two “paedo” cases received about the same sentence as they usually would, and as has been pointed out, remand is taking up a huge number of prison places which would be better filled with serious/violent offenders, with those who would normally be kept in prison on remand tagged and monitored.

    That the tabloids who are making the most noise are the same ones who came up with the daft solutions which Reid promised to investigate in the first place obviously doesn’t matter.

    Comment by . — January 27, 2007 @ 8:34 pm

  10. Wow that was unusual. I just wrote an really long comment
    but after I clicked suhmit mmy comment didn’t appear. Grrrr…
    well I’m not writing all that over again. Regardless, juust wanted to ssay superb blog!

    Comment by computer desk — October 18, 2013 @ 1:22 pm


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