33. Memorandum submitted by
the Prison Reform Trust
THE CONTEXT
OF THE
2003 ACT
The 2003 Criminal Justice Act constituted a
major strategic intervention by the government on sentencing.
It was not so much an attempt to change sentencing policy as an
attempt at the introduction of deliberate policy to sentencing
in the first place.
As the Home Secretary David Blunkett said at
the second reading of the bill in December 2002:[111]
"We talk about punishment, protection, reducing
crime, reparations and, of course, rehabilitation, so we are laying
down new guidance on why we are doing things. Through the sentencing
guidelines council and Parliament's new influence we are laying
down the new the ways in which we are trying to make sense of
sentencing."
For the first time, the act laid down the purposes
of sentencing, so providing a robust metric for its effectiveness.
This is comprised of: punishment, deterrence, reformation, public
protection and reparation for victims.
The act came after years of sentence inflation
from judges, magistrates and the government had ratcheted up the
prison population. It also followed a series of high profile reports,
particularly the Halliday Report on sentencing[112]
and the Social Exclusion Unit report on Reducing Re-offending
by Ex-prisoners.[113]
The Halliday Report attempted to define the purpose of sentencing,
moving away from a solely "desert" based model, where
the offender is punished proportionately to the offence, to include
a greater focus on the offender themselves, and their likelihood
to cause future harm. The Social Exclusion Unit's report put the
figure of £11 billion a year to the cost of reoffending by
ex-prisoners. It made many points that went wider than the 2003
Act, but it reinforced the call for more supervision of offenders
in the community and the importance of tackling addiction and
maintaining accommodation, all of which fed into the act.
Finally, during the progress of the act through
parliament, Lord Carter was conducting his review of correction
services.[114]
It aimed to reshape the prison and probation system to be fit
for the new purposes of the 2003 act. In assessing the usage of
prison at the time, it passed scathing judgment on the sentencing
that led to the massive increase in the prison population:
"The increased use of prison and probation
since 1997 has been concentrated on first time offenders, leading
to poor use of additional investment."[115]
It went on to say:
"The key explanation for the growth in the
use of prison and probation over the last decade is the increased
severity in sentencing."[116]
This analysis is shared by the Prison Reform
Trust's The Decision to Imprison. It states:
"There are two main reasons why the prison
population has grown. Sentencers are now imposing longer prison
sentences for serious crimes, and they are more likely to imprison
offenders who 10 years ago would have received a community penalty
or even a fine."[117]
Both publications agreed that the rise in the
prison population was not a reaction to an increase in crime but
an aggregate of sentencing changes. The Carter report also examined
the use of punishment and probation in terms of their being an
expensive public resource and found that the resource was not
being well-targeted. It set out to reserve the use of custody
for "serious, dangerous and highly persistent offenders".[118]
That would mean that the prison population could be stabilised
and managed at 80,000.
THE FAILURE
OF THE
2003 ACT
In October 2006, the Home Secretary gave this
explanation of the rapid increase in the prison population over
that summer:
"First, the Criminal Justice Act 2003 is
beginning to have a real effect. The House will know that the
Act introduced tough new sentences—indeterminate sentences—to
answer the public demand that life, where appropriate, should
truly mean life for those judged to be a danger to the public.
It also introduced more flexible community orders which would
be a more effective alternative to prison for lower level offenders.
The evidence so far is that our courts are making good use of
indeterminate sentences so that dangerous people are staying in
prison for longer, but they are not yet using community orders
as fully as they might. That was the point emphasised this weekend
by the Lord Chief Justice. That leads to increased pressure on
prison places above that anticipated in the short term."[119]
He makes the case that the Criminal Justice
Act was at least half successful in being implemented. However,
since the Criminal Justice Act was intended to bring a strategic
overview to sentencing and to manage the population in prison,
it can't be considered to have half succeeded if half implemented.
In fact, it has failed entirely, since it was explicitly not a
raft of disparate measures but an attempt at a coherent strategy.
The measure of the failure of the Criminal Justice
Act is the jettisoning of several of its measures, including the
government's manifesto commitment to Custody Plus—that is
adding a community supervision element to short prison sentences.
Intermittent custody has also been scrapped. The Sentencing Guidelines
Council has not yet managed to bring consistency to sentencing,
or to end sentence inflation. Charles Clarke's ambition to create
community prisons has been and gone since the act was passed.
What remains is prison growth and the desperate scrabble for ever
more places. This holds no realistic promise that sentencing will
be effectively targeted, or that it will effectively reduce crime
through rehabilitation.
MEASURING EFFECTIVENESS
The record of prison on rehabilitation is poor
at best, with some 64% of ex-prisoners reoffending within two
years. Measurements have altered slightly over time, but a look
at the figures, as illustrated in the Prison Reform Trust's Bromley
Briefings Prison Factfile shows a clear trend over the last decade.
Meanwhile the reoffending rate of community sentences has improved
or remained stable. However, it may be that more sophisticated
measurements of effectiveness are needed to inform the appropriateness
of sentencing and the delivery of that sentences. For example,
it may be a more realistic, and therefore a more useful, measure
of success that a prolific drug user commits fewer crimes and
takes fewer drugs over the course of an intervention, than that
they stop overnight. On the other hand, when it comes to very
serious crimes no repetition of an offence of similar gravity
is ever acceptable, even after more than two years.
Crime prevention, through incapacitation as
well as rehabilitation is at the heart of the purpose of sentencing
in the 2003 act. However, because crime within prisons is largely
unrecorded, untold thousands of assaults, extortions, drug deals
and serious acts of violence are committed, often without being
counted in the same way as crimes outside. At its most grave this
can led to crimes such as the heinous murder of Zahid Mubarek.
Crime within prison is also responsible for prisoners developing
debts for drugs, drug habits and criminal skills. Incapacitation
risks achieving little more than sweeping crime under the carpet,
unless prisons are sufficiently set up to work closely with prisoners
and to resettle them on release. In our grossly overcrowded system,
the ambition must fall far short of that and be instead that of
simply keeping coping.
Finally, it is very important to distinguish
when the question of effectiveness is simply inappropriate or
callous. For example, while it is certainly true that the reoffending
rate for restricted patients released from hospital is only 7%
within two years, as opposed to nearly two-thirds from prison,[120]
it is not relevant to the effectiveness of that sentence. This
is because prison is the wrong place for, say, people with a severe
psychotic illness. There can be no right delivery of a sentence
which is wrong in the first place. What is needed in this case
is the long-promised national roll out of court diversion schemes,
as well as psychiatric professionals in police stations.
WHO'S
ACCOUNTABLE?
The number of women in prison has more than
doubled in the last ten years. And yet almost no one will defend
that outcome as desirable. Who is accountable for the fact that
huge numbers of very vulnerable women have been locked up at enormous
public expense when they have not committed serious or violent
offences? The answer is no one person or body is accountable.
Responsibility for this grossly infective move is diffused.
Similarly, as both the Carter and Halliday reports
pointed out, there are huge difference between the sentences handed
down in different parts of the country. Finally, it is extraordinary
that there is so little feedback to sentencers about how effective
their sentences have been, and therefore no chance for the public
to evaluate how well their money is being spent. This points touches,
obviously, on the question of judicial independence. But there
is a very real difference between independence and accountability.
As long as sentences work on a "fire and forget" model
there is little chance of sentencers receiving feedback from their
decisions and being able to account for them to the public.
Evidence from Decision to Imprison indicates
that many judges and magistrates would welcome a provision for
reviews as is currently the case in the drug treatment and testing
order.
LINK BETWEEN
SENTENCING POLICY
AND PRISON
POLICY
During the Commons discussion of the 2003 Act,
debate was dominated by issues such as double-jeopardy and trial-by-jury
in fraud cases. Perhaps the most far-reaching change to the criminal
justice system was barely discussed. The indeterminate sentence
for public protect has been taken up with enthusiasm by sentencers.
Life and indeterminate sentences are now the main engine for growth
in the prison population. The NOMS population briefing for the
end of January shows an increase of 31% of the last year for life
and indeterminate sentences, rising to more than a tenth of the
total population. In percentage, the rise is only exceeded by
the growth of non-criminal prisoners, almost certainly because
of the continued detention of foreign nationals beyond sentence.
But in terms of numbers there nothing to match the rise of indeterminate
and life sentences, even though the number homicides is falling.
And not only is this group the fastest arriving, they are also
likely to be the slowest leaving. In other words, the growth in
the prison population is wired right into future years.
To be fair to sentencers, many have not given
indeterminate sentences that are designed, on the face of it,
to keep people in prison for very long periods. 68% of the tariffs
handed out in 2005, were for 36 months or less. However, there
is a fatal divorce between the changes to sentencing structure
and prison planning. It is impossible now to visit a local prison
anywhere in the country without finding people stacked up in a
holding pattern to begin their life or indeterminate sentence.
As the chief inspector of prisons has stated in her 2005-06 annual
report:
"There are now delays in the transfer of
lifers and indeterminate-sentenced prisoners throughout the system.
By September 2006, there were over 1,400 IPP prisoners, around
three-quarters of whom were still held in local prisons, unable
to progress through sentence or to participate in work that would
reduce their risk by the time of tariff expiry (one in five had
tariffs of 18 months or less). In one local prison, we found 55
indeterminate-sentenced prisoners, some of whom had been there
for over 12 months. They included 51 IPP prisoners, many with
very short tariffs."[121]
This clearly shows that there can be no such
things as an effective sentence in the abstract. The delivery
of that sentence has fallen victim, even if it ever could work,
to the population and resource pressure on the system. Politicians
of all parties and the press are quick to confuse the effectiveness
of sentences with their length. The story of IPPs shows clearly
that it is possible to have a longer sentence in which less is
done.
Criticism of the IPP sentence, its overuse and
impact is coming from all quarters including, on public record,
from the Chairman of the Parole Board and from the Lord Chief
Justice. Intended as a way of detaining very dangerous offenders,
it appears to have become through usage an imprecise hedging-bets
sentence, handed down to people who have mental health needs,
seem odd and may possibly present a on-going risk to themselves
and others. A number of families have contact the Prison Reform
Trust's advice and information service to express their concerns
and to try to make sense of what has happened. A mother recently
called to say that her son had received a ten month tariff for
arson, setting fire to rubbish. The Prison Reform Trust would
like to see a review of this element of the 2003 Act. Are IPP
sentences being used as planned? Are there unintended consequences?
What is the overall impact within the criminal justice system
and for individuals and their families?
WHAT NEXT?
The failure of the 2003 act to provide a consistent
and sustainable framework for effective sentences means that the
debate has snapped right back to the analysis in the Halliday,
Social Exclusion Unit and Carter reports, though this time with
the prison system under yet great pressure. Once again, sentencing,
effectiveness, public confidence and the prison population are
all separate and unconnected by any over-arching strategy. Once
again the criminal justice system is rudderless and in rough waters.
19 March 2007
111 Commons Hansard, 4 December 2002, Column
928. Back
112
Making Punishments Work: A Report of the Review of the Sentencing
Framework in England and Wales, Home Office, July 2001. Back
113
Reducing re-offending by ex-prisoners, Report by the
Social Exclusion Unit, July 2002. Back
114
Managing Offenders, Reducing Crime: A New Approach, Strategy
Unit, 11 December 2003. Back
115
Ibid p 3. Back
116
Ibid p 11. Back
117
The Decision to Imprison: Sentencing and the Prison Population,
Prison Reform Trust, 2003, p ix. Back
118
Carter, p 39. Back
119
Commons Hansard, 9 October 2006 : Column 33. Back
120
Statistics of Mentally Disordered Offenders England and Wales,
Home Office, 2005, 05/07. Back
121
2005-006 Annual Report HM Chief Inspector of Prisons, London,
The Stationery Office, January 2007. Back
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