Annex K
Note by Mr Peter Coad
MANDATORY SENTENCES: PUTTING THE RECORD STRAIGHT
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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