APPENDIX 18
Memorandum by the Association of Chief
Police Officers
LETTER TO THE CLERK OF THE COMMITTEE
Following your letter dated 12 August 1997,
I write having consulted with Police Forces in England and Wales
and provide views, which I hope to progress in the New Year when
called to give evidence before Committee:
There is a minority opinion that the Police
should be cautious in being publicly involved in the sentencing
debate. That said, a longer term concern is that inappropriateness
in sentencing too frequently is associated with unchecked re-offending
and diminished police morale.
Most Police Forces are engaged in initiatives,
working closely with other agencies, examining offender supervision
programmes (examples of such schemes are attached). In championing
other methods of punishment it has always to be borne in mind
that confidence in the Criminal Justice System is threatened if
offenders appear to be "getting away with it", particularly
if alternative sentences do not seem to be sufficiently severe
or demanding. There is a widespread perception amongst the police
and the general public that the present system is weighted too
much in favour of the offender and against the victim; against
this background alternatives must be seen to be effective sanctions
and not merely cost cutting measures. This apprehension will be
enhanced if active offenders are seen to re-offend with much frequency.
There is an over-riding need to break the cycle
of offending but it is crucial that any action must be timely,
have impact for the victim and an impact on the offender. The
Courts should have the ability to recall the offender to assess
the effectiveness of any court sanction which obliges the defendant
to take part in some kind of restorative programme, and if the
sanction is not seen to have been effective it should be backed
by a more stringent measure.
In any sanctions designed to meet diversion
strategies the key elements are suggested as:
— A change of emphasis
in recognising the place of victims in the Criminal Justice System.
The crime is against the victim as well as society and the State.
— Any breach of
a diversionary policy could result in formal proceedings or recall
to court.
— Fines and compensation
orders should be payable in part or in kind as part of a diversionary
sentence.
— Compensation
should be paid to the victim before any fines are paid into public
funds.
— Mediation between
offenders and victims should be seen as being for the benefit
of the victim.
— The victim should
be allowed a right of audience with the court in circumstances
where significant financial or personal loss has been sustained.
— Credit for guilty
pleas and successful diversionary initiatives could be flexible
and linked to diversionary initiatives that the defendant must
agree to abide with. Proceedings could bere-introduced for failure
and the discount expunged.
— Pre-sentence
reports should contain details of available diversionary initiatives.
The law only demands that a report be available if the court is
considering a custodial sentence.
— Information about
the effect of the crime upon the victim should be available to
the court and be available for hearing in open court (except sensitive
cases) before the sentence. This could include non-binding views
of the victim. The present law prevents the admission of evidence
which may be seen to bolster the prosecution case. It could be
acknowledged that it may go either way and should be supported
by admissible evidence.
— Sentences could
be deferred pending the result of a diversionary initiative. If
the accused fails or refuses to comply with the initiative then
a sentence could be imposed.
— Access to restitution
and compensation is difficult for many victims faced with young
or financially insecure offenders. This could be remedied by enhancing
the Court's ability to order against parents or guardians.
— The use of reparation
should form an integral part of a non-custodial sentence such
as the repair of damage caused or compensating for loss. In relation
to young offenders such a form of sentencing should be focused
early on in the offending career with the deterrent of imprisonment
being a real possibility.
As greater rigour is imposed on the cautioning
system, there is a likelihood that there may be more court appearances
of young offenders. If a sequence of non-custodial options is
tried and the offender continues to re-offend, there will be pressure
towards more imprisonment rather than less. It may well be worth
considering shorter sentences earlier in offending careers. There
is some evidence that too many non-custodial sentences remove
the fear of sanction and that early short sentencing might be
more effective. The term "short sentence" could be taken
quite literally to be a matter of weeks.
In the right cases, a major strength of non-custodial
sentences is that it offers the facility for some form of diversion
whereby proper support can help address repeat offending. This
is heavily dependent upon the ability of the handling agency to
select an appropriate programme. Whilst acknowledging the importance
of support for the offender to complement any non-custodial sentence
it is important that the public are assured that a punitive element
exists.
Forces have considered alternative options and
a few of their thoughts are outlined below:
— Suspended
Prison Sentences should have the ability to have meaningful
conditions or curfew orders attached to them including exclusion
orders affecting licensed premises/football grounds etc.
— Lifestyle
Action Plans would produce a requirement for an offender to
develop, with the assistance of a Probation Officer, an action
plan based upon existing skills, abilities and realistic expectations
to lead a productive and law abiding existence. Failure to meet
the objectives could result in imprisonment.
— Forfeiture
of Possessions could be considered where, upon conviction
for an offence of dishonesty, assets in possession of the offender
would be presumed (under certain clearly defind circumstances)
to have been acquired dishonestly and be subject to forfeiture
unless lawful ownership could be proved. This would probably meet
the public desire for retribution in non-custodial cases.
— Part-time
Prison Sentences where offenders would lose their liberty
for one or two days per week rather than for a continuous length
of time. It might be that by maintaining normal contact in society
throughout the week, the inconvenience of short term detention,
for example at the weekend, would perhaps encourage a change in
behaviour.
— Secure Hostel
Schemes would provide the occupants serving periods of imprisonment
to have freedom during the day but still remain in custody at
night and weekends. This would allow an opportunity for offenders
to re-integrate themselves into the community by obtaining or
seeking employment and at the same time, reducing the overall
cost to the system.
— Attendance
Centres for both adults and juveniles have proved to be successful
at a relatively moderate cost but suitable accessibility does
prove to be a problem in some Forces. The regime of the Attendance
Centre should be reviewed to ensure that a more structured approach
is taken with a substantial contribution from the offender of
their own time. Full days of attending should be considered rather
than a few hours in one session.
As previously mentioned, nearly all Police Forces
in England and Wales are actively involved with other agencies
in programmes which aim to divert offenders from a life of offending.
It is worth making the point however that for a few persistent
young offenders, for whom all alternatives have been tried there
is no alternative but to lock them up, simply for the protection
of the public and their property. Most Forces have examples of
children aged between 12 and 17 who have been given the whole
range of community penalties only to re-offend time and time again,
creating literally hundreds of victims of crimes such as burglary
and theft. It is accepted that there is limited therapeutic value
in incarcerating young offenders, but ultimately having given
them every chance, we have a duty to protect our communities by
removing persistent offenders.
It is worth observing that the number of highly
recidivist offenders is very small as a percentage of the total
number of offenders. If their misbehaviour is not checked a consequence
is that the public at large view alternatives to imprisonment
negatively. They witness the havoc caused by these recidivist
youngsters rather than the success of programmes ranged against
more amenable offenders.
There is a special concern in the Police Service
regarding the link between recidivist offending and the use of
illegal addictive substances. People of strong will find if difficult
to shake the habit of smoking tobacco, unsurprisingly less well
motivated people who use heroin have a greater problem. Any scheme
for addressing offending behaviour outside prison must also address
a drug habit if there is one. At the least there should be clinical
availability of drug substitutes such as methadone; controlled
dispensing arrangements so they cannot trade prescriptions; and
supportive advice. Many offenders are committing crime primarily
to support their habit. The single most important thing we can
do would be to address the difficulty of stabilising, with drug
substitutes, these offenders within the community.
A further thought is that of the age of criminal
responsibility. It cannot be seriously argued that most children
aged perhaps eight or nine do not have any concept of right from
wrong. Indeed, when conducting child protection joint interviews
it is accepted by courts that four or five year-old children will
be tested on their ability to differentiate between truth and
lies, the implication being that in most cases they know that
it is wrong to lie. It may be time to take a close look at the
age threshold over which we can start to give a youngster some
help in growing up as an honest citizen. By the time some children
have reached their tenth birthday they are experienced criminals
and will be beyond the point where our diversionary systems will
have any effect. It is not suggested for one moment that eight
year-olds should be put in prison, but an acceptance that they
can be criminally responsible will allow the services currently
only available to the over 10 year-olds, to be instigated when
they are needed most.
Perhaps the idea of alternatives to prison sentences
puts the wrong spin on the issue. A more potent view of sentencing
would be to look for combined treatment programmes that emphasise
both the restorative principle and the rehabilitative principle.
There is abundant evidence concerning a small number of highly
recidivist offenders who commit large amounts of crime. They have
almost all run the gamut of alternative sentencing before prison.
Many of them return to offending close upon release. Interestingly
we have looked at a number of these cases where the offender has
committed crime up to and immediately before court appearance
and immediately upon release. In these circumstances "paying
your debt to society" does not mean a lot. The choice is
surely between preventive detention and some alternative programme
combining short term imprisonment and long term effective parole.
Such a parole system would need to have real teeth as well as
to offer genuine support and training for parolees.
Recognising what has been said about public
confidence, a parole system would need to look carefully at where
results might be achieved. Offences of predatory violence (robbery,
stranger rape and the like), indecency offences and house burglary,
all illustrate a likely disregard for victims. Some other kinds
of crime, drug dealing, car theft and even shoplifting are sometimes
"rationalised" on the basis that the victim is not injured,
may well be recompensed or that what they are doing is merely
a form of illegal trading. Given these different motivations parole
systems and supervision systems would need to be differently engineered
if they were to address re-offending realistically. The point
being made is that we should not support schemes because they
are attractive but on the basis of whether or not they work. We
need to learn whether schemes have a differential impact according
to the type of offender and type of programme. It is almost more
important to set up a process of genuine validation than it is
to identify new schemes. The Crime Committee's view is that the
arguments for and against custody as an issue of moral persuasion
are largely counter productive. Every system of criminal justice
needs both, the trick is to obtain the right balance and, as we
are suggesting, to look at combined approaches. The petty politics
of those who are always against imprisonment and who usually misrepresent
cases in a rhetorical fashion, do more to undermine genuine alternatives
than anything else. We are particularly concerned about, for example,
the present enthusiasm for restorative justice in so far as it
is presented as a panacea. There are no panaceas. Restorative
justice is one of many options which may work in some circumstances
and we need more evidence about where it will be effective.
I regret this has been a lengthy response but
I have sought to capture the views of colleagues as I believe
the Police Service has a particular interest in this issue. Four
main issues stand to be reiterated for emphasis:
(a) Custodial and non-custodial
sentences should not be viewed as philosophical alternatives but
as complementary.
(b) There is room for a much
greater use of mixed sentences if parole systems are seen to have
more teeth.
(c) Highly recidivist offenders
need to be treated as a special category.
(d) Addressing drug addiction
in some cases is central to any plans for dealing with offenders
outside prison.
I hope these comments are of value.
J D Phillips QPM BA(Econ)
Chairman
ACPO Crime Committee
17 November 1997
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