2. Memorandum submitted by
the Centre for Crime and Justice Studies
INTRODUCTION
1. The Centre for Crime and Justice Studies
(CCJS) at King's College London is an independent charity that
informs and educates about all aspects of crime and criminal justice.
We provide information, produce research and carry out policy
analysis to encourage and facilitate an understanding of the complex
nature of issues concerning crime. We are a membership organisation
working with practitioners, policy makers, academics and students,
the media and voluntary sector, offering a programme of events,
publications and online resources. The Centre also publishes the
British Journal of Criminology, one of the world's leading academic
journals on criminology. CCJS is also a statutory consultee to
the Sentencing Advisory Panel.
2. CCJS is currently conducting a "Community
Sentences" project looking at the impact and consequences
of the new Community Order and the Suspended Sentence Order introduced
in the Criminal Justice Act 2003. As part of the project we have
just completed a report assessing the use of these new sentences
and the views of probation officers (see below for more information
on the findings).
3. In conducting its inquiry into effective
sentencing it is important that the Committee recognises the overall
uptariffing across the sentencing framework that has resulted
not only in a dramatic rise in prison numbers but also in what
the former Chief Inspector of Probation, Prof Rod Morgan, described
as the "silting up" of probation caseloads. This uptariffing
has been succinctly described by Prof Morgan:
"Sentences have become substantially more
severe, community penalties displacing financial penalties (and
to a lesser extent discharges) and immediate custody displacing
community penalties and suspended sentences. Furthermore, the
custodial sentences being imposed are longer."[7]
CCJS would emphasise the latter point, that
custodial sentences are now far longer than they were 10 years
ago and, furthermore, over the last eighteen months there has
been dramatic rise in the number of indeterminate sentences as
we discuss in more detail below.
The same analysis of uptariffing was highlighted
in the correctional services review carried out by Lord Carter
in 2002.[8]
In particular the review noted that the increase use of prison
and probation since 1997 has been "concentrated on first
time offenders". The rise in the number of first time offenders
given a custodial or community sentence should not be overlooked.
4. Uptariffing has occurred at a time when
there has not been any known increase in the overall seriousness
of offences brought to justice or in the numbers convicted, brought
before the courts and sentenced. A recent report published by
CCJS, "Ten years of criminal under Labour: an independent
audit" showed that as a proportion of the total number of
offences brought to justice, successful convictions have actually
fallen, from 69% in 2003 to 53% in 2006.[9]
The total number of convictions contributing towards the government's
offences brought to justice target declined from some 737,000
in the 12 months to March 1999 to 707,000 for the comparable period
in 2006. Instead there has been a rise in non-convictions.
For instance, nearly half (47%) of the 1.327 million offences
brought to justice in the 12 months to March 2006 were "non
convictions", with cautions alone making up a quarter of
the total. It is important to note that the fastest growing contributor
has been the Penalty Notice for Disorder. There is no evidence
to suggest that non-conviction disposals are displacing sanctions
that would have in the past have been given following a conviction.
Instead what appears to be happening, alongside the overall uptariffing,
is significant net-widening with larger numbers of people being
subject to criminal justice sanctions who in the past would not
have been dealt with by the criminal justice agencies. A clear
indicator of this is the fact that there has been a 26% increase
in the number of children and young people criminalised in the
past three years, while there is no apparent increase in known
offending by this age group.
5. Overall as part of its inquiry it is
vital that the committee recognizes these two significant trends
of net-widening and uptariffing and the consequences that flow
from them in order to identify what reforms might be needed to
create a more effective sentencing framework.
CRIMINAL JUSTICE
ACT 2003
6. As highlighted above, CCJS this month
is publishing a report looking at the use and impact of the Community
Order and the Suspended Sentence Order since their introduction
in April 2005. The report is based on an analysis of unpublished
Home Office data and interviews with probation officers (a copy
is attached with this submission as an electronic pdf file). It
uncovers a number of significant issues: the use of the Suspended
Sentence Order; questions about the availability of resources
and differential use of requirements that make up the two orders
between probation areas, which have serious implications for justice;
and some potentially worrying signs with regard to breach. As
a result, the problems of uptariffing and the use of custody,
noted above, remain unchanged.
7. In particular the report highlights that
the Suspended Sentence Order has proved more popular than expected
and contrary to Sentencing Guidelines Council guidance it tends
to have more requirements than the Community Order. As a result
there are indications that the breach rate for Suspended Sentence
Orders is particularly high and requires close monitoring. Probation
officers say they are concerned that the Suspended Sentence Order
is being over used by the courts and offenders are being set up
to fail with too many requirements.
8. Overall there is no evidence to suggest
that the new orders are either diverting offenders from custody
or having an impact on uptariffing, indeed, use of the Suspended
Sentence Order suggests that this may be contributing to the problem.
9. A further key finding is that the new
Community Order is not being used in the flexible, innovative
way that was expected and hoped for. In effect, its use is simply
mirroring the old community sentences. It is particularly significant
that although 12 requirements are theoretically available to create
a tailor-made package of interventions for each offender subject
to a Community Order, half have not been used or used very rarely.
Probation officers are worried about the lack of availability
of some requirements, and the rise in the use of unpaid work.
10. The report also notes that breach has
become a serious issue. Probation officers describe it as a "nightmare"
and say that they have too little discretion in making decisions
about whether or not to breach offenders. They also say they are
under intense pressure to speed up the breach process. Official
figures support their view that the number of offenders who breach
a community sentence has increased.
11. CCJS has also been informally monitoring
the use of the new indeterminate sentence for public protection
(IPP) introduced in the Criminal Justice Act 2003. We note
in particular the significant rise in the number of people serving
indeterminate sentences. In fact, the most recent Home Office
figures show that in January there were more people serving indeterminate
sentences (8,570) than there were serving sentences of less than
12 months (7,858).[10]
This is a historic shift in the make up the prison population
which the committee might like to consider.
12. The number of offences that are eligible
for the IPP sentence is also very wide. There are 153 specified
offences for an IPP compared to 11 for an automatic life sentence
which it replaced. An IPP can also be used for a first time offence
as long as the defendant is deemed dangerous. For example, they
include crimes such as causing grievous bodily harm, which ranges
from near-murder to knocking someone's tooth out. The court of
appeal has held that courts should presume that anyone convicted
of one of the specified offences who has previous convictions
is dangerous unless this conclusion would be "unreasonable".
Some courts have responded to this combination of statute and
appeal court guidance by using the new sentence almost automatically
for offenders convicted of specified offences.
In a recent lecture, hosted by CCJS,[11]
the Chair of the Parole Board, Professor Sir Duncan Nichol, highlighted
that many prisoners serving IPP sentences have unusually short
tariffs because the specified offence that led to the sentence
may not in itself be serious. Prof Nichol said that half of offenders
recently given IPP sentences had received tariffs of 20 months
or less, and 20% under 18 months. He noted that:
"The effect of this is that he is entitled
to be considered for release almost as soon as he is received
into custody following trial. The practical effect can often be,
therefore, that not only has the prison had no time to assess
the individual for the purposes of writing reports, but that the
Board's role in assessing his risk to the public is rendered almost
academic by the fact that nothing has changed in the very short
period between the sentencing judge deciding he is a significant
risk, and the Board considering his case. The Board must make
up its own mind, regardless of what the judge said, but in practice
there is very little to go on. Hence an enormous amount of resources
are expended on what can sometimes appear to be a futile exercise."
13. CCJS takes the view that the IPP sentence
is flawed and should be withdrawn. The government should at least
amend the law so that the use of indefinite sentences is left
to courts' discretion unconstrained by presumptions of dangerousness.
Indefinite sentences should be used only in exceptional circumstances
when there is clear, positive evidence that the offender is a
very serious danger.
FUTURE STRATEGIES
14. If the overall uptariffing and the consequent
continual rise in prison numbers is to be addressed, CCJS suggests
that the Committee consider the following issues. First, the Committee
might like to consider the need for a reduction in sentencing
thresholds, most importantly the custody threshold. This can most
effectively be achieved by setting guidelines that instruct the
courts to use prison as a genuine last resort. One potential solution
was outlined in a draft Youth Justice Bill which the government
published two years ago. This would have prohibited courts from
jailing juvenile offenders unless they had first tried community
supervision, except for those convicted of grave crimes.
15. The Sentencing Guidelines Council has
an important role to play. The Council was intended to set out
a comprehensive set of guidelines that would have the effect of
reserving custody for the most serious violent offenders. The
approach required an acceptance of the relationship between general
guidelines and decisions in individual cases, which are for magistrates
and judges to determine. However there have been concerns of political
interference following high profile cases undermining the independence
of the Council in its work to address the rise in sentencing tariffs.
The Carter report noted that the creation of the SGC provided
an immediate opportunity to improve the effectiveness of sentencing,
stating:
"Each year the Council should discuss the
priorities for sentencing practice with the Home Office. It should
then issue guidelines that ensure offences are treated proportionately
to their severity, are informed by evidence on what reduces offending
and makes cost-effective use of existing capacity."
This is not currently the case.
16. Second, the Committee might like to
consider the question of diverting low risk offenders away from
custody and the courts and deal with them in the community, along
with rebuilding the share of the fine, as was proposed in the
Carter report which recommended the introduction of a day fine
system. However, it is important that any attempt to "down
tariff" takes place consistently across the sentencing framework
otherwise it is unlikely to work. The Sentencing Guidelines Council
is the most effective mechanism for achieving this.
17. In terms of the use of community sentences,
CCJS would not argue for further reform or indeed for the creation
of "tougher" community sentences. Instead the current
community order and suspended sentence order needs to be more
carefully targeted as part of an overall strategy to shift sentencing
down tariff. There also needs to be adequate resourcing so that
all the 12 requirements are genuinely available. In addition,
the use of community sentences needs to be more effectively promoted
with sentencers by providing them with better information about
community alternatives and creating more effective links between
probation areas and local courts. There is no longer a statutory
requirement for sentencers to be members of Probation Boards (to
be renamed under legislation going through parliament Probation
Trusts). This is a regressive step. Furthermore, enabling sentencers
to regularly visit community sentence projects is a simple yet
important measure that is needed.
18. A further critical issue is sentence
lengths. If the prison population is to be reduced there needs
to be a radical reduction in overall sentence lengths. We have
already proposed either withdrawing or amending the indeterminate
sentence for public protection. At the same time there needs to
be consideration given to reducing sentence lengths for all individual
offence types.
19. It is important to note that there is
no convincing evidence that a reduction in the use of custody
and sentence length are likely to have any significant adverse
impact on crime. There is no evidence, for example, that a 15
month sentence is any less effective than a 18 month sentence
in terms of reducing re-offending. Alternatively, there is no
convincing evidence that increases in the custody rate or sentence
length will significantly reduce crime.
It is far from clear what impact the criminal
justice system has on levels of crime and safety. A recently released
report from the Prime Minister's Strategy Unit concluded that
80% of the reduction in the official crime rate since 1997 was
the result of economic, not criminal justice, factors. This assessment
is in keeping with that of many criminologists, who argue that
economic trends, employment levels and relative income inequality,
alongside technological developments and broader cultural and
social changes, are the main influencers of crime trends.
20. Finally there is also a need to address
the rise in the number of people who breach community sentences
or are recalled to custody for breaching their licence conditions.
Improving enforcement of Community Orders and licence conditions
can best be achieved by an approach which focuses on "enabling
compliance" rather than simple, potentially counterproductive
enforcement, as is currently the case. There is a need to look
at how the Probation Service's national standards do not address
the standard of help an offender might reasonably expect or how
compliance may be rewarded. One option is to have a graduated
system of positive rewards and also a graduated hierarchy of responses
to breach.[12]
PUBLIC CONFIDENCE
IN THE
SENTENCING FRAMEWORK
21. There is a tendency to assume that the
public is naturally punitive and supports a tougher sentencing
framework. However, this view is often based on a perception of
public attitudes as they are portrayed in the media. The evidence
would suggest that the public is not naturally in favour of greater
punitiveness. Indeed, recent official figures quoted in the Carter
report show the proportion believing sentencing policy to be "much
too lenient" has fallen from 51% in 1996 to 35% in 2001.
There is clear evidence that when presented
with information about a case the public takes the same or a less
punitive approach. This was the finding of research conducted
by the Halliday review into sentencing. In addition, work carried
out by CCJS, through an evaluation of the Local Crime: Community
Sentence initiative, further supports the claim that good
information can do much to change public attitudes to community
sentences.[13]
Almost half (49.5%) of those who initially chose the prison option
after reading mocked-up newspaper reports of a case changed their
minds after a presentation from a sentencer and a member of probation
staff.
Enver Solomon
Deputy Director
8 March 2007
7 See Morgan, R. (2003) "Thinking about the Demand
for Probation Services", Probation Journal 50 (1):
7-19. Back
8
The Carter report is available at www.cabinetoffice.gov.uk/strategy/downloads/files/managingoffenders.pdf Back
9
The report is available at www.kcl.ac.uk/depsta/rel/ccjs/ten-years-of-labour-2007.pdf Back
10
See Population in custody monthly tables-January 2007, table
1, available at www.homeoffice.gov.uk/rds/pdfs07/prisjan07.pdf Back
11
The lecture is available at www.kcl.ac.uk/depsta/rel/ccjs/who-should-we-release-2006.doc. Back
12
See Hedderman, C and Hough, M (2004) "Getting tough or being
effective: what matters?" in What Matters in Probation
ed G.Mair, Cullompton: Willan. Back
13
Grimshaw, R. (2006), What the public really thinks about community
sentences, London: Centre for Crime and Justice Studies, available
at: http://www.kcl.ac.uk/depsta/rel/ccjs/community-sentences-2006.pdf Back
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