9. Memorandum submitted by
David Faulkner
This paper reviews the aims which successive governments
have sought to achieve through their reforms of sentencing over
the last 20 years, and the lessons to be drawn from that experience.
It continues with some suggestions for approaches which might
be adopted in the context of the immediate pressures on the prison
and probation services, and concludes with some reflections for
the longer term.
THE AIMS
OF SENTENCING
REFORM
1. The story of sentencing over the last
20 years (and more) has been one of the increasing politicisation
of sentencing practice, and of successive governments' increasing
involvement in the structure and process of sentencing through
legislation and other less direct forms of influence.
2. During the 1980s and up to the Criminal
Justice Act 1991, the then Conservative government's purpose was
to promote greater consistency and coherence in sentencing, to
encourage the use of community sentences, and to restrain the
demand for accommodation in prisons. More recently, governments
of both parties have sought to increase public confidence and
to achieve greater effectiveness in reducing crime, and especially
re-offending, by promoting greater severity in sentencing and
the increased use of imprisonment. It is difficult to claim that
any of those purposes has so far been successfully achieved, and
some of the reforms have had unintended but often foreseeable
consequences. The present pressures on prisons and probation are
an obvious example. But the greater complexity of the sentencing
process has also been confusing for practitioners and the public,
as well as for victims and offenders, and that complexity has
itself damaged public confidence.
3. The statutory purposes of sentencing,
as set out in section 142 of the Criminal Justice Act 2003, have
been generally welcomed for their declaratory effect. But the
section does not help the court to decide or require it to indicate
the purpose which the sentence is to achieve in any particular
case. Nor does it clarify how that purpose is to be achieved or
who is responsible for achieving it. The Government through legislation,
and the Sentencing Guidelines Council through guidelines, have
given the courts a more rigid structure for sentencing offenders
for particular offences, often with a requirement or encouragement
for greater severity, but without much attention to the effect,
for example, on sentencing for other offences which the courts
would regard as equally serious.
4. There has been little discussion of sentencing
policy overall, how far sentencing has become more severe or the
crimes coming before the courts have become more serious, or of
the basis on which any increase in severity is justified. There
has been even less discussion of the means by which considerations
of cost and capacity can properly be taken into account, as the
Criminal Justice Act 2003 requires, and none at all of the effectiveness
of sentencing in reducing crime or re-offending.
LESSONS FROM
EXPERIENCE
5. One lesson to be drawn from that experience
is that solutions to the present problems of capacity, confidence
and effectiveness are not to be found by exercising even greater
ingenuity in introducing new refinements in the process of sentencing
or of risk assessment, or in devising new forms of sentence or
"alternatives" to custody. Another is the need to make
sure that the system "works", in the sense that what
is supposed to happen does happen, people know where they stand
and what they can expect, and that promises are kept and legitimate
expectations are realised. If offenders are required to go on
courses to address their offending behaviour, the courses should
be available and offenders should have the opportunity to go on
them. Victims and witnesses should receive the help and consideration
that they deserve. The system cannot begin to be effective or
to command public confidence if those requirements are not met.
6. A third lesson is that more effort should
be made to improve relations and relationships on the ground,
and on making provision for local flexibility and initiative,
with suitable mechanisms for accountability and for the "empowerment"
of citizens at the local level. Relationships for this purpose
include both those between courts and the National Offender Management
Service and the Prison and Probation Services, and also the human
relationships between supervisors and those under their supervision.
Those seem often to be neglected in the new arrangements for offender
management, but they can have more influence on future offending
than procedures or interventions carried out for their own sake
so that it will be possible to "tick the box".[43]
7. Action to respond to all those lessons
should help to improve both "effectiveness" in reducing
re-offending and also public confidence.
WHAT IS
NEEDED NOW
8. The immediate need is therefore not for
new initiatives at national level, but for careful, painstaking
work at local level to achieve a more informed mutual understanding
of what courts should expect and of what prisons and probation
should provide. The second phase of "Re-thinking Crime and
Punishment", and its practical project "Making Good"
in the Thames Valley, together with the Community Justice Centre
in Liverpool and the similar schemes which are now being developed
in other parts of the country, provide examples of what can be
done. One theme to be developed could be to use unpaid work in
creative ways which would not only benefit local communities in
practical ways but also generate a stronger spirit of service
and responsibility among offenders and in the communities concerned.
Schemes of that kind could draw on and develop the experience
of restorative approaches (not just restorative conferences) which
has already been accumulated, and they should be judged by their
effect on relationships, behaviour and confidence as well as on
re-offending.
9. Courts and the Probation Service, together
with the police, should try to ensure that conditions attached
to community sentences and licences are realistic and relevant
to the person's situation and circumstances, and that they are
designed to help towards their re-settlement. The need to protect
the public should not result in conditions whose only purpose
is to appear "tough" on the offender, and which increase
the likelihood of failure for no positive purpose. Breaches of
conditions should be dealt with firmly, although with more flexibility
for those which involve no more than a missed appointment, and
it is just as important for the supervisor or offender manager
to try and make sure that breaches do not occur in the first place.
Reporting requirements should involve some genuine and purposeful
human contact: they should not be a tiresome demand whose only
purpose is to be part of the offender's punishment.
10. More use could be made of conditional
cautions and referral orders, but again for a positive purpose
which offenders, their families and communities can understand
and respect. They should be more than a means of imposing more
controls or making more demands on offenders who can be satisfactorily
dealt with by fines or discharges. For more serious offenders,
courts should consider whether it is feasible for prisons to make
assessments of future risk when a prisoner has been in custody
for a relatively short time, especially with the present pressure
on resources. They might do better to avoid imposing indeterminate
sentences for public protection where the tariff for the offence
is less than, say, four years.
THE LONGER
TERM
11. Local relationships between courts and
NOMS will be crucial. Arrangements for commissioning services
or "interventions", and for the management and supervision
of offenders, should not be designed only for convenience in administration
or imposed from "the top down" in an arbitrary or insensitive
manner. They should be used to support and not to frustrate courts
in imposing the most suitable sentences in individual cases. Courts
and NOMS should in particular try to ensure that commissioning
makes provision for offenders who may be at a disadvantage—women,
members of ethnic minorities, those who are mentally disordered,
those with problems of drugs or alcohol, persistent petty offenders
for whom individually designed programmes or interventions may
be needed. The arrangements should be flexible enough to accommodate
variations in local conditions and respond to local opportunities.
Courts should be encouraged to say what purpose those sentences
are intended to achieve, and outcomes should be monitored and
reported back to the sentencing court.
12. Sentencing and other responses to crime
should come to be seen and presented more as local and less as
national issues, and government and the political parties should
try to shape the debate—and especially its reporting by
the media—accordingly. Some events will demand a political
response, but it need not always be a new initiative, still less
new legislation, and it is in the end counter productive to exploit
bad news about crime for political advantage.
13. Risk assessment and risk management
have become a major industry in criminal justice and in other
areas of public and private business. In criminal justice, there
are two sources of particular difficulty. One is the lack of certainty
in the "science" itself, and the pressure on practitioners
to apply an automatic technology when what is needed is a considered
judgement based on the balance of probabilities. The other is
the accelerating movement towards punishing people not so much
for what they have done but for what it is thought they might
do in the future. For the courts, the Parole Board or individual
practitioners to be required to make that judgement that raises
serious questions about the nature, purpose and legitimacy of
punishment in a modern civilised society. There is now an extensive
academic literature on the subject,[44]
but it has so far had little or no impact on public debate. A
more wide ranging debate should now take place about the proper
limits of punishment by the state, and about the scope for potentially
troublesome or dangerous people to be effectively but legitimately
restrained by means which are not necessarily punitive in their
nature or intention.
8 March 2007
43 See, among other examples, McNeill, F, Batchelor,
S, Burnett, R and Knox, J (2005) 21st Century Social Work: Reducing
Re-offending: Key Practice Skills, Edinburgh, Scottish Executive;
Burnett, R and Maruna, S (2006) "The Kindness of Prisoners:
Strength-based Re-settlement in Theory and in Action", Criminology
and Criminal Justice, 6(1), 83-106. Back
44
See for example Hope, T and Sparks, R (eds) (2000) Crime, Risk
and Insecurity: Law and Order in Everyday Life and Political Discourse,
London, Routledge; Stenson, K and Sullivan, R (eds) (2001) Crime,
Risk and Justice: The Politics of Crime Control in Liberal Democracies,
Cullompton, Willan Publishing; Towl, G (ed) (2006) Psychological
Research in Prisons, Oxford, Blackwell; Zedner, L (2006) "Neither
Safe Nor Sound? The Perils and Possibilities of Risk" Canadian
Journal of Criminal Justice, 48(3) 101-112; Goold, B and Lazarus,
L (Eds) (2007) Security and Human Rights, Oxford, Hart Publishing
(in press). Back
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