Select Committee on Home Affairs Third Report

Annex K

Note by Mr Peter Coad


  Michael Howard's introduction of the "two/three strikes and you're out" sentencing concept was entirely due to the overwhelming evidence that judges can no longer be trusted to impose realistic sentences to protect the public and punish criminals. The general public have increasingly become victims of serious and persistent offenders; many live in constant fear of assault and/or burglary; parts of many towns and cities have become "no go" areas at night and even during hours of daylight. A democratically elected government has the duty and right to impose effective law and order policies; it is their duty to intervene if the system is failing. It is for that reason Michael Howard introduced his Crime (Sentences) Bill.

  Attacking Michael Howard's Crime (Sentences) Bill, Lord Chief Justice Bingham was strangely silent about alternative measures to reduce the crime rate. The evidence is that this can be achieved by increasing the use of custodial sentences for serious and persistent offenders; it has been successful in many states in America. The latest Home Office statistics show that the two year reconviction rate for all prisoners discharged in 1993 fell from 58 per cent for those discharged from sentences up to twelve months, to 26 per cent for all those whose sentences were between four and ten years. Nevertheless, Lord Bingham's criticism of mandatory sentences has attracted much support, especially from distinguished law lords and many other members of the judiciary; the fascinating question is "Why?"

  For about four decades, sentencers have increasingly abdicated their primary role, which is to protect the public and to punish criminals, especially serious and persistent ones. During that period there was a steady decline in the use of imprisonment; in spite of a twelve-fold increase in reported crime, the number of criminals sent to prison has increased only two and a half times. Taking into account the use of shorter sentences, the number of prisoners has only doubled. Slowly but surely, increasing compassion for criminals has been at the expense of the general public. By the 1980s anti-prison ideology dominated criminal justice policies; as prison populations fell, the crime rate soared; since prison populations have risen during the past four years, the crime rate has begun to fall. Michael Howard was accused by his enemies of making decisions "on the hoof"; nothing could be further from the truth. The Crime (Sentences) Bill was carefully thought out and is firmly based on experience, research and common sense. His predecessors in office, void of their own ideas, were victims of a well established anti-prison lobby whose grip on Home Office policy makers was absolute. In stark contrast, although always prepared to listen to sensible advice, Michael Howard had a mind of his own and made his own decisions.

  In addition to powerful members of the judiciary, Michael Howard was opposed by determined anti-prison organisations, often operating under the guise of the Penal Affairs Consortium, chaired by Paul Cavadino of the National Association for the Care and Resettlement of Offenders (NACRO) and powerfully supported by the National Association of Probation Officers (NAPO), the Association of Chief Officers of Probation (ACOP), the Howard League for Penal Reform, the Prison Reform Trust et al. Their anti-prison propaganda campaign over many years succeeded beyond their wildest dreams; their influence on criminal justice policies is largely to blame for the fastest rise in the crime rate ever recorded. Through all forms of the media, they have brainwashed the nation. Truth and the objective use of information, research and statistics are sacrificed for ideological purposes. They make misleading claims so often that they are widely believed and assumed to be based on objective research; nothing could be further from the truth. Much research into crime is carried out by researchers with an ideological axe to grind and must be read with the greatest caution. The propaganda falsely claims that the United Kingdom is more punitive than any other like European country, that reconviction rates following a prison sentence are higher than for those following the completion of a probation order, and that persistent criminals can be effectively supervised in the community and at a lower cost than imprisonment. These lies, supported by a misleading comparison of the cost of imprisonment with the simple administrative cost of supervision in the community, ignore totally the price society pays for having persistent offenders inflicted on them by sentencers advised by the Probation Service. The anti-prison lobby was able to exert an increasingly powerful influence on criminal justice policies at the Home Office for decades. With the powerful support of David Faulkner, when Deputy Under Secretary of State at the Home Office, they imposed their unrealistic ideology on successive Home Secretaries. Commenting on Michael Howard's reforms, Faulkner said that the police are now "unsure whether their main task is simply to detect and arrest criminals—the view of the `old canteen culture' which so much had been done to correct—or whether they have a wider social purpose in maintaining social stablility and confidence, in tackling crime by other means, as in protecting individual rights and civil liberties." That bizarre and revealing statement totally ignores the reality that it is by the detection and arrest of criminals that the police maintain social stability and confidence.

  Through judges and magistrates appointed to Probation Liaison Committees and ideologically biased post sentence reports, NAPO and ACOP have been in a particularly powerful position to brainwash sentencers; their success has been all too evident. Of course, the judiciary will deny brainwashing but surely their lack of awareness of what has happened to them is the ultimate confirmation of its success. Former Home Secretaries Douglas Hurd and Kenneth Baker have been among Michael Howard's most vociferous critics. Anti-prison ideology was well established and supported during Douglas Hurd's tenure of office as Home Secretary and it was during that period the basis of the Criminal Justice Act (1991) was established. The Act severely curtailed the power of sentencers to protect the public. Some of its bizarre clauses included a denial of sentencers the right to know if a convicted criminal before them had a history of failure on probation before passing a sentence; in cases where an offender had been found guilty of, say, 100 crimes, he could only be sentenced for one of them unless there were special aggravating factors allowing for only one additional crime to be included; a further clause would not allow a persistent offender to be given a more severe sentence than a first offender if they were jointly charged and previous convictions were not to influence subsequent sentencing. These absurd clauses proved to be unworkable and were repealed within months. Nevertheless, they were supported by Douglas Hurd, David Waddington, Kenneth Baker, NACRO, NAPO, ACOP et al, increasing an already soaring crime rate. There was no effective opposition to the 1991 Criminal Justice Act by law lords to prevent it from becoming law, unlike the organised attack on the Crime (Sentences) Bill. Under pressure from Michael Howard, courts are now sending increasing numbers to prison. Since 1993 there has been a steady decline in the crime rate. Mandatory sentencing would accelerate that process.

  The 1994 Crown Courts' sentencing records for domestic burglaries could not be a clearer example of how judges have been willing to protect the interests of persistent domestic burglars at the expense of the general public. During that year, for the first offence, domestic burglars were given an average of 16.2 months imprisonment, for the second offence an average of 18.9 months imprisonment and an average of 19.4 months after seven convictions; 28 per cent of those with six or more previous convictions were not sent to prison at all. In Magistrates' Courts, an extraordinary 61 per cent of offenders with seven or more previous convictions for burglary were also not sent to prison. If the majority of burglars can expect to escape a custodial sentence or receive relatively short sentences, it is little wonder that many burglars offend again and again; latest Home Office statistics show that 74 per cent of burglars are reconvicted within two years of discharge from prison; bearing in mind the low detection rate, the re-offending rate is more likely to be nearer 100 per cent. Considering the history of light sentences for burglary it is no wonder they are not deterred. Although the maximum penalty for domestic burglary is 14 years, in the past five years only two domestic burglars have received sentences of more than 10 years. Of the 4,400 convicted of domestic burglary by Crown Courts in 1995, 179 received sentences of over three years and only 18 were sentenced to more than five years imprisonment. It was no wonder that Michael Howard felt compelled to intervene. Burglary is a very serious offence; victims often experience the loss of heirlooms, irreplaceable items of a sentimental value as well as expensive possessions; in many cases victims live the rest of their lives in constant fear. A recent survey by "Age Concern" identified domestic burglary as the greatest fear of the elderly. Surely a minimum sentence of three years imprisonment at the third offence is modest for such serious crimes.

  The "Two/Three Strikes" concept is misleading; in reality it means two/three court appearances. For example, in the overwhelming majority of cases of domestic burglary, the first court appearance is likely to involve many more than one offence. A second court appearance could be the result of, say, 10 further convictions for domestic burglary and yet still the criminal would not be exposed to the mandatory three-year prison sentence; at the third court appearance, having by then become an habitual burglar, a sentence of a minimum of three years imprisonment is realistic. In practice, three years imprisonment at a third court appearance for domestic burglary will be excessively lenient considering that, by that time, a persistent burglar may well have committed scores of burglaries. Home Office statistics for those discharged from prison in 1993 identify burglars of all age groups as having a staggering 74 per cent reconviction rate. Even worse, young male burglars produce a reconviction rate of 83 per cent. Again it must be emphasised that those were the ones caught. The alternatives to prison are fines, likely to be paid for by even more burglaries, or community sentences which result in high re-offending rates. Whether a persistent burglar or any other persistent criminal is professional or amateur, is irrelevant to their victims. "Research Finds 57: The 1996 International Crime Victimisation Survey" was published by the Home Office, July 1997. It shows that the risk of burglary was higher in England and Wales than in the 10 other countries surveyed. So lawless are burglars in this country that, even while serving sentences, they break more prison rules than any other category of criminal. Lord Bingham need not worry about domestic burglars with "psychiatric problems, financial pressures, family difficulties, or feelings of suicide"; post sentence reports by probation officers should be able to identify and deal with problems of that nature at the time of the first and second strike. If these conditions are unresolved by the time of the third strike, I suggest that priority concern should then be given to the consequential psychiatric problems, financial pressures, family difficulties and suicidal feelings of victims.

  It was incredible that Lord Bingham should have complained about a mandatory seven-year sentence at a third court appearance for offenders trafficking in killer Class "A" drugs. It is outrageous to excuse such crimes because addicts want to finance their own drug habit. Drug addiction is a self-inflicted condition and can be cured, if desired, with professional help. Such criminals trade in death just as much as the trafficker who deals simply for financial gain. It took just one Ecstasy tablet to kill Leah Betts. Seven years in a drug-free penal establishment is more than long enough for all who wish to break their habit; all Class A drug traffickers deserve every day of a seven-year sentence. Again, in the vast majority of cases, the three court appearances will not represent three single drug offences; realistically such offenders will probably have committed scores of such crimes. In a sample of 500 cases of sentences for serious drug offences in 1994, 10 per cent of those appearing for the third time were not sent to prison.

  An automatic life sentence for a second conviction for serious violent or sexual offences surely needs no justifying; how many more crimes of this nature can be tolerated without the offender serving a sentence specifically designed to ensure that it will never be repeated? Perpetrators of crimes of violence are potential killers or, at the very least, risk inflicting permanent physical and/or psychological harm on their victims. The same can be said for victims of sexual assaults although it is difficult to define a non-serious one. How many times are criminals permitted to commit such offences before the law is applied to give permanent protection to potential victims? Surely keeping them in prison until they no longer pose a threat to the community is essential. In 1994, 217 such criminals were convicted of similar repeat offences. All could have received a life sentence, but only 10 of them did.

  Crown Courts last year imposed community based sentences for indictable offences on 26.7 per cent of those appearing before them, in spite of the overwhelming evidence that supervision in the community is a horror story of failure. The latest reconviction rates for probation could hardly be worse; the majority on probation are males under 30 years of age; reconviction rates were 77 per cent for those under 21; 66 per cent for the 21-24 age range, and 60 per cent for those aged 25-29. Considered against a 7 per cent detection rate, the re-offending rate is likely to be more than 90 per cent; year by year reconviction rates get worse; community service orders have similar reconviction rates. For the majority, a community sentence is a licence to offend. However, judges are not deterred from imposing community based sentences on more than a quarter of those appearing before them. Thus community penalties make a substantial contribution to the crime rate.

  Earlier this year the Home Office conducted a "Dangerousness Inspection" with the chilling conclusion that at any one time 14,000 offences in the dangerousness categories of murder, manslaughter, rape, kidnapping, arson, firearms offences and grievous bodily harm, the absolute top bracket of serious offences, were attributable to offenders currently being supervised by the Probation Service. Following that inspection, the Home Office recently sent a circular to all Chief Probation Officers showing that over a 13 month period, offenders under supervision have been charged with a catalogue of 285 horrifying crimes. Of the 204 offenders concerned, 114 were either on probation or serving a community service order and 90 had been discharged from prison, either on licence or parole. The crimes they are charged with include 69 for murder, 37 for attempted murder or manslaughter, 17 for wounding with intent or grievous bodily harm, 30 for rape, six for attempted rape, 10 for indecent assault, 19 for robbery or armed robbery, seven for kidnapping and four for buggery. This list only represents those who have been detected; the actual numbers of such serious crimes committed by those supervised by probation officers will be far worse. This latest catalogue of crimes represents only a fraction of all crime committed under supervision, contributing significantly to the national crime rate.

  Home Secretary, Jack Straw, has commissioned an audit of the prison population to head off an overcrowding crisis. It is essential that the Audit Commission take into account more than the day-to-day costs of tagging, community supervision or other community penalties. The cost-effectiveness of prison should be measured in terms of the number of crimes which the inmates would have committed had they been at liberty. In America, this research has been carried out with startling results. Patrick Langan, Senior Statistician at the American Bureau of Justice Statistics, made a conservative estimate of the number of crimes prevented by the increase in the American prison population between 1975 and 1989. This came out at 390,000 murders, rapes, robberies and assaults prevented in 1989 alone; and those were only crimes in which physical violence was involved. A similar study in this country would likely conclude that we need many more prisons to accommodate those who should be inside. Although there are costs involved in locking up criminals, there can be even greater costs in not doing so; the price is paid, either in cash or in victims.

  There has been a suggestion that mandatory sentences will result in more contested trials and "plea bargains" between the prosecution and the defence. This ignores the fact that the Bill allows the court to reduce mandatory sentences by up to 20 per cent, to take into account timely guilty pleas, thus providing an incentive for those who are guilty to plead guilty. The issue of what constitutes "exceptional circumstances" to allow judges the discretion to set aside mandatory penalties will be for the courts themselves to determine taking into account all the circumstances of a particular case. This is already the case in relation to the power to impose a suspended sentence of imprisonment. There was no need for the Labour and Liberal Democrat parties to impose a clause requesting an "in the interest of justice" provision.

  Michael Howard was the first Home Secretary for decades to give priority to the protection of the general public and punishment for serious and repeat offenders. The evidence is overwhelming that the sentencing discretion of the majority of judges is not to be trusted. Michael Howard's decision to impose mandatory sentences was fully justified; indeed, he would have been failing in his duty to do otherwise. The choice is a stark one; either impose mandatory sentences to control and reduce offending, or uphold Lord Bingham's dangerous rejection of them "because it will fetter their (judges) sentencing freedom". Ironically the CJA 1991 also restricted the sentencing freedom of judges, the philosophical basis for opposition to the Crime (Sentences) Bill. What was fundamentally different about the CJA 1991 was that it restricted the imposition of salutory sentences, thus protecting many criminals from the consequences of their crimes while at the same time, reducing the scope to protect the public. That legislation was not effectively obstructed by the judiciary but the Crime (Sentencing) Bill, designed to punish serious and persistent offenders and at the same time protect the public, was.

  To summarise; the "two/three strikes and you're out" sentencing concept will, in reality mean, `"two/three court appearances and you're out"' for the crimes listed in the Crime (Sentences) Act; it was designed to avoid the destructive excesses of the California system. The "`exceptional circumstances'" clause will provide safeguards against injustice; it works well concerning mandatory disqualifications under the Road Traffic Act. The likelihood of trifling offences being brought before courts will be remote. Police cautions and Crown Prosecution Service discontinuances will protect against their possibility. However, there is no such thing as a petty domestic burglary; for a Law Lord to trivialise its seriousness to the value of a pint of milk or the loss of a few pounds from the gas meter was a callous disregard of the terror inflicted on innocent victims. If a persistent burglar has failed to be deterred by his two previous court appearances, he has forfeited his right to leniency. It is essential to remember that all convictions must be considered against a background of low detection rate, of about 7 per cent for crimes generally. The evidence is clear that a liberal anti-prison approach results in a soaring crime rate. The considerable evidence from America is that tough prison sentences either control or reduce crime; the anti-prison lobby go to great lengths to discredit such evidence. The percentage of criminals brought before courts in this country is very small, about 2 per cent in fact. It is therefore very important that persistent and serious offenders, when detected, are given prison sentences long enough to protect the public as well as to deter others. To reject mandatory sentences is an abdication of the responsibility to protect one's own family, friends and neighbours in particular, as well as the public in general.

  The Crime (Sentences) Bill was supported by the nation generally and the police in particular. At its second reading in the House of Lords, it was ambushed by Law Lords, arrogantly defending their own self-importance while at the same time vigorously defending the "`rights'" of serious and persistent offenders. In his opening speech, Lord Chief Justice Bingham made scant reference to victims of crime; his main focus was to protect persistent criminals from possible injustice. He posed four questions to test the validity of the Bill. They were, "Will it be just?" "Will it serve to reduce the levels of crime or increase the protection of society?" "Will it be cost effective?" "Will it work in practice?" He concluded that it failed to pass all four of these tests. He was wrong! Applying them to the repeat domestic burglar facing a third court appearance makes my point. Bearing in mind that criminals choose to offend but victims do not choose to be victims, justice must be dispensed in favour of the victim, and a sentence imposed to protect society. While an offender is in prison, society is protected and the crime rate will be reduced by the number of crimes that he would have committed had he not been incapacitated. The criminal activities of persistent burglars cost society millions of pounds; while an offender is in prison, society will be spared this expense. However, the cost in terms of human misery is incalculable. On that basis the validity of the Bill is incontrovertible. Lord Woolf, well known for his liberal anti-prison ideology, started his speech with the now much discredited assertion that "prison is an expensive way of making prisoners worse". Research contradicts that claim. He, too, majored on the protection of criminals rather than justice for society.

  There was a time when doctors behaved as if they were God; now only Law Lords suffer this delusion. In reality they are victims of years of the propaganda espoused by organisations now represented by the Penal Affairs Consortium. They live in an exclusive world of their own sustained by a dangerous combination of naïveté and assumed omniscience. It is not their role to act as a self-elected trades union for criminals. Law Lords must not be allowed to frustrate the will of the nation. In his opening attack on the Crime (Sentences) Bill last year, the late former Lord Chief Justice Taylor claimed that it had been prepared "on the flimsiest evidence". I suggest that the evidence presented in this article is incontrovertible. Jonathan Swift's quote, "There is none so blind as they that won't see" seems appropriate.

  The Institute of Economic Affairs in association with The Sunday Times has recently published a most important book, "Does Prison Work?" by Charles Murray, the Bradley Fellow at the American Enterprise Institute, a public policy research institute in Washington DC. It is a scholarly examination of criminal justice issues with a special focus on sentencing in America as well as in this country. The following are extracts from Murray's research.

  Between 1954 and 1994 there was a dramatic drop in the number of criminals jailed in England. For example:

    —  Rape: from one in three to one in twelve, down 77 per cent.

    —  Robbery: from one in three to one in twenty, down 86 per cent.

    —  Burglary: from one in ten to one in 100, down 87 per cent.

  In 1994, police detected fewer than a quarter of robberies and only a fifth of criminal damage cases; forty years ago they cleared up more than half of both crimes. Burglary and theft detection rates had also fallen by nearly half by 1994. Under Michael Howard, the likelihood of imprisonment increased by 25 per cent between 1992 and 1995. In England, the prison population would have to increase five-fold to re-establish the 1954 ratio of prisoners to offences.

  Murray rightly says that crime has become safer for the criminal in the past forty years, and blames the increased use of cautions as part of the problem. He goes on to say that in 1954, cautions handed out for indictable offences amounted to only five per cent. Forty years later the numbers more than trebled to 16 per cent. During the same period, young offenders have, in the vast majority of cases, gone unpunished. Only ten per cent of all youths under 14 picked up by the police in 1994 for an indictable offence were even found guilty of anything, let alone given meaningful punishment; the rest were merely cautioned.

  Sentencing patterns are also criticised by Murray. In 1954, courts handed out custodial sentences in about 21 per cent of guilty verdicts; by 1994 the figure had dropped to about 17 per cent. Murray also claims that the broad proposition that "prison works" is not in question if used with sufficient ruthlessness. It can also be a deterrent unless the odds of being caught and imprisoned aren't high enough, or because the sentences are not harsh enough. Prison can also prevent people from committing crimes simply because while in prison, they are incapacitated.

  Referring to the American experience in the 1970s, as the risk of imprisonment went down, the crime rate went up, as it did in England. The increased use of imprisonment has begun to reduce crime. By 1995, property crimes were back to the rate first reached in 1975 and burglary down more than 40 per cent from its peak. The homicide rate is lower than it has been since 1969. Robbery has fluctuated for 20 years but by 1995 it stood at the rate it reached in 1975. Only aggravated assault, roughly compared with the UK wounding, is still near its peak, and even that has been dropping for the last three years.

  Steven Levitt, writing in the May 1996 issue of the American Quarterly Journal of Economics, concluded that 1,000 inmate increase in the prison population prevents about four murders, 53 rapes, 1,200 assaults, 1,100 robberies, 2,600 burglaries and 9,200 larcenies. Thus about 15 crimes are eliminated for the cost of the incarceration of one criminal, making imprisonment cost effective by any method of calculating the cost of crime.

  I am a retired Senior Probation Officer with three years experience in youth work and thirty years experience in the Probation Service working in the community and a two-year period in a prison establishment. Since my retirement I have taken a special interest in sentencing policies and community supervision programmes. I am firmly convinced that persistent offenders, so-called petty or serious ones, unmotivated to reform, should be locked up for increasingly longer prison sentences for the protection of society. The most recent Home Office statistics support the effectiveness of longer rather than shorter prison sentences. There can be no moral justification for allowing persistent criminals the freedom to inflict misery on law-abiding citizens. In all criminal justice systems there is a risk of injustice. When dealing with persistent or serious offenders, risks must be taken in favour of the public at large.

Peter Coad

Senior Probation Officer (Retired)

Revised October 1997

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