17. Memorandum submitted by
JUSTICE
1. JUSTICE is an all-party organisation,
largely of lawyers, dedicated to advancing justice, human rights
and the rule of law. We are also the United Kingdom section of
the International Commission of Jurists.
2. JUSTICE has long experience of working
on sentencing issues. We have responded to, inter alia,
the Auld review of the Criminal Courts; the Halliday review of
the sentencing framework in 2001; the Criminal Justice Bill's
sentencing provisions in 2002; and the Home Office consultation
Making Sentencing Clearer in 2007. We have published reports
on restorative justice and life sentences and have intervened
in several cases concerning life sentencing.
SUMMARY
3. The current prisons overcrowding crisis
is only the latest and most public manifestation of the long-standing
problems of criminal sentencing in this country. The Home Affairs
Committee identified some of these problems in their 1997-98 sentencing
report: however, despite successive substantial legislative changes
in criminal justice, some passages in that report could have been
written today, almost 10 years later.
4. The current political climate offers
challenges to reform of the sentencing framework, but we believe
that a combination of greater clarity in sentences; greater involvement
of communities (where appropriate) in the criminal justice process
through community justice initiatives; better treatment of victims
through adherence to measures such as the Code of Practice for
Victims of Crime; and a focus on reparation to victims and communities
including through restorative processes, will help to increase
public confidence in the system and produce public support for
these reforms. Hostility from some quarters to non-custodial solutions
will remain, but as the recent SmartJustice survey on women offenders
showed, there is public support for alternatives to custody.[74]
5. We believe that sentencing for most crimes
should focus upon two principles: reintegration of the offender
into the law-abiding community; and reparation to the community
and the victim for the crime.
6. In this response we recommend reforms
that we believe to be feasible in the short to medium term, that
would reduce unnecessary incarceration and allow the resulting
substantial financial savings to be invested into the reforms
that we propose. In some areas the reforms are substantial, but
we emphasise that urgent and major reforms are necessary in some
areas of the justice system.
7. It remains the case that reforms to the
criminal justice system alone will not solve the wider social
problems with which the system is asked to grapple. These problems
are beyond the remit of this paper, but we emphasise here the
importance of integrating the criminal justice system, where appropriate,
with the delivery of other services that can (indeed which have
responsibilities to) address problems that are among the causes
of offending behaviour.
8. We therefore recommend the following,
non-exhaustive set of measures:
— The mainstreaming of aspects
of the community justice initiative into courts across the jurisdiction,
tying in the criminal justice system to the community and to other
services.
— The mainstreaming of restorative
justice practices at both the pre-court and sentencing stage;
in particular, the creation of an adult "referral order"
and restorative cautioning for adults and young offenders.
— Specific statutory restrictions
upon custodial sentencing.
— The repeal of aspects of the
"dangerous offenders" regime which can lead to "life"
sentences being applied disproportionately.
— Increased alternative residential
provision eg mental health places.
— Radical change to the sentencing
of women offenders following the publication of the Corston Review.
— Radical change to the youth
justice system; the removal of children from Prison Service custody.
The mainstreaming of aspects of the community
justice initiative into courts across the jurisdiction, tying
in the criminal justice system to the community and to other services
9. We support many aspects of the community
justice agenda that has been pursued at the North Liverpool Community
Justice Centre and in Salford, and which is now being spread to
other pilot areas. We believe that they have enormous potential
to increase public confidence in the administration of justice;
to reduce recidivism; and to promote confidence amongst the public
and amongst sentencers in community sentences.
10. We believe, in particular, that the
following policies should be mainstreamed (some below are already
present in the community justice agenda; others are our own suggestions):
— co-location of key services
within the court building; in particular, communication should
be improved between sentencers and probation, and other services
such as drug treatment, mental health and housing; it should be
possible for input from local services to be incorporated into
the pre-sentence reporting process in appropriate cases;
— "problem-solving approach":
while this can result in disproportionate sentences, the creation
of an adult referral order (see below) and the ability to encourage
the offender to take up services voluntarily (which is aided by
co-location) should help to prevent this;
— follow-up on sentences: in particular,
s178 of the Criminal Justice Act 2003 (power to provide for court
review of community orders) should be rolled out nationally. While
it would be resource-intensive and unnecessary to impose post-sentence
follow-up in every case, sentencers should also be made aware
of community sentence "successes" eg through newsletters;
and
— the involvement of communities:
in notifying the court of locations where unpaid work projects
are needed; as volunteers (magistrates; witness service/victim
support; referral order panel members; etc); by publicising to
them completed projects (through plaques, newsletters); by having
a police office, victim support and council "shop" on
site.
11. We believe that in pursuance of this
agenda, sentencing should be where possible focused upon the local
community: unpaid work should be completed within the local area
and results should be, where possible, tangible: the provision
of new park benches; the redecoration of a community centre, etc.
These should be both published in local media and through the
affixing of plaques to completed projects, and should be visited
by local councillors and by magistrates. We are opposed, however,
to the wearing of uniforms by offenders. We believe that this
is contrary to the interests of re-integration into the law-abiding
community since it could result in humiliation and stigmatisation,
reinforcing the offender's alienation from the community and hostility
towards the community and/or the authorities: this could impede
rehabilitation. In the interests of reducing recidivism, and promoting
compliance with community sentences, therefore, we believe that
uniforms should be avoided.
12. It is also important that, in seeking
rigorously to enforce community sentences to promote public confidence,
they do not become so inflexible that breach proceedings leading
to revocation and custodial sentencing become too frequent. The
imposition, for example, of very strict time requirements on those
with chaotic, addiction-led lifestyles is unrealistic if applied
too inflexibly and can lead to unnecessary re-sentencing to custody.
More discretion should be given to offender managers so that the
offender is only breached where there is a wilful disregard for
the terms of the order.[75]
13. We also believe that the possibility
of extending the community justice agenda to the prison system
should be considered: if current levels of overcrowding are reduced,
we believe that consideration should be given to greater localisation
of imprisonment so that offenders are closer to their families
and local communities, in order that family ties can be preserved.
We also believe greater attention should be given, in the pre-release
period, to ensure that local services and facilities such as benefits
are ready for the person's release and that there is no time delay
where housing or benefits etc are lacking (which evidently will
make the offender very vulnerable to reoffending). Greater communication
between courts and such agencies where a custodial sentence is
imposed would be aided by the community justice agenda, eg if
services are co-located representatives can be informed immediately
once the sentence has been handed down. They should then be informed
by the offender manager once a release date is known.
The mainstreaming of restorative justice practices
at both the pre-court and sentencing stage; in particular, the
creation of an adult "referral order" and restorative
cautioning for adults and young offenders
14. We welcome the recent report by Lawrence
W Sherman and Heather Strang on restorative justice[76]
(RJ) and we believe that RJ should be mainstreamed throughout
the jurisdiction. In the criminal justice context, it should be
available as diversion from court (eg through a restorative cautioning
mechanism) and in sentencing. We believe that RJ complements and
enhances the community justice agenda, and that the involvement
of victims and other members of the community in RJ approaches
would promote the reintegration of the offender; reparation to
the victim and/or the community; and confidence of the community
in the criminal justice system. In practical terms, we believe
that RJ can be mainstreamed by the following methods:
— promoting its importance within
the conditional cautioning framework for adults: restorative justice
practices can already be part of conditional cautioning under
Part III Criminal Justice Act 2003, as is expressly set out in
the Conditional Cautioning Code of Practice. This could be strengthened
by inserting a presumption that RJ will be used either in selecting
conditions or as a condition of a conditional caution, unless
this is inappropriate in the individual case. For many offences,
consideration should be given to removing the caution from the
criminal record for ordinary employment purposes (not for CRB
standard or enhanced disclosures);
— creating a restorative caution/warning
for under 18s: restorative cautions for youths are already available
in Northern Ireland; consideration should be given to removing
the caution from the record for ordinary employment purposes once
the conditions have been completed;
— widening the circumstances in
which a referral order for youths can be imposed: s17 Powers of
Criminal Courts (Sentencing) Act 2000 should be amended to provide
that a referral order may be passed even if the child or young
person has previous convictions;
— creating a referral order for
adults: we see this as a key complement to the community justice
agenda, as outlined above. These could include, if appropriate,
RJ practices and/or reparation to the local community, and would
be overseen by a panel including volunteers from the local community;
and
— offering an RJ conference in
appropriate cases before sentencing where a custodial sentence
is being considered: the outcome of such a conference may help
to persuade the sentencer to impose a non-custodial sentence;
in case where it is appropriate for the victim to attend and (s)he
is willing to do so, it may also have benefits for the victim.[77]
15. We would also welcome the spread of
RJ practices outside the CJ system, for example in schools as
a method of preventing unnecessary exclusions, and in neighbourhoods
(managed by neighbourhood police or local authorities) in order
to defuse neighbour disputes and avoid unnecessary recourse to
measures such as ASBOs. Such measures could impact indirectly
upon numbers in custody.
SPECIFIC STATUTORY
RESTRICTIONS UPON
CUSTODIAL SENTENCING
16. In our response to Making Sentencing
Clearer, we proposed specific statutory bars on the use of custody
for certain offences in the absence of prescribed aggravating
features, for example:
— To prohibit or restrict, in
law, the use of custody for certain offences, eg:
— shoplifting of goods under a certain
value;
— possession of drugs (up to a certain
amount, for personal use);
— low-value fraud (eg personal benefit
fraud);
— breach of an ASBO, except where the
breach would otherwise be an imprisonable offence;
— breaches of ASBOs by children and
young people.
17. It is clear, in our view, that one reason
for the current excessive use of custody is that generalised threshold
terms such as "so serious" and "last resort"
can fluctuate in meaning, according to the prevailing media and
political climate. As Professor Rod Morgan has said in relation
to youth sentencing, "a last resort today is substantially
lower than 10 to 15 years ago".[78]
The current situation is such that, we believe, more specific
restrictions upon custody are required.
18. It is necessary for custody to be available
as an option to the courts in relation to offences where there
is a danger of death or serious injury to members of the public
(eg most offences against the person); or where custody is required
in order to provide an adequate deterrent against otherwise profitable
offending (eg serious fraud). However, in relation to the offences
listed above, the option of custody should be legally restricted.
One problem is that the legal definitions of many offences mean
that they can be committed at highly varying levels of seriousness
eg criminal damage; theft; robbery. However, just as the mode
of trial is demarcated for criminal damage according to its value,
it should be possible to prescribe, for example, that a custodial
sentence is not available for criminal damage unless one or more
of a list of aggravating features is present.
19. These features would have to be carefully
selected for each offence [some could be common to many offences],
following consultation, in order to avoid arbitrariness or discriminatory
effect. As an example, however, in relation to shoplifting, it
would be possible to provide that custody could not be imposed
for theft from a shop unless one or more of the following features
were present: breach of trust; high value (eg £200 or more);
part of professional criminal enterprise... [others could be listed].
20. Such legal changes might be objected
to on the basis that there would be an inadequate deterrent against
persistent minor offending. If this were the case, options would
include allowing custody in the absence of any of the normal factors
that make custody an option, if the person either has a particular
number of convictions for the same/similar offences, or if they
have already received say, two community sentences for the same/similar
offences. However, care should be taken in this context, since
some crimes, such as shoplifting, will frequently be a crime of
repetition, led by substance addiction. Robust community sentences,
properly enforced, should provide a deterrent against repeat offending
below the custody threshold. Further, if sentencing focuses even
more than at present on "trigger" factors and attitudes,
for example, through the use of adult referral orders, then hopefully
recidivism will be reduced. Repeat "cynical" offending
designed to evade the custody thresholds (eg repeatedly stealing
items slightly below the minimum value threshold) could be deterred
by framing the threshold factors to include such behaviour or
by retaining the option of custody for repeat offending eg where
two community sentences have already been imposed, or on a certain
number of convictions for that offence, but giving guidance to
restrict custody to these "cynical" cases.
The repeal of aspects of the "dangerous offenders"
regime which can lead to "life" sentences being applied
disproportionately
21. We are deeply concerned about the impact
of the "dangerous offenders" provisions in the Criminal
Justice Act 2003. It should be recalled that these allow, inter
alia, the imposition of what is effectively a life sentence
in relation to a range of offences where a life sentence would
not otherwise be available or if available, would not otherwise
be imposed (imprisonment for public protection), and presume that
such a sentence should be imposed on the second conviction for
such an offence. We are concerned that:
— "dangerousness" requirements
are insufficiently stringent only to catch those offenders who
need this kind of sentence;
— The offences involved will not
necessitate a life sentence (in some cases, these offences do
not normally carry a maximum life sentence; for those that do,
the IPP sentence is designed to be used in "dangerous"
offender cases where the offence is not serious enough for a life
sentence), and could include for example a robbery using minimal
force;
— IPPs with short minimum terms
may be inherently problematic because of the difficulty of persuading
the Parole Board that risk has been sufficiently reduced in the
short intervening period between sentence and expiry of minimum
term, particularly if availability of programmes is limited.
22. We are also concerned that the Parole
Board has been asked to take on the function of effectively determining
the length of sentence of a wide range of offenders, as a result
of these provisions, in circumstances where its institutional
independence remains compromised as a result of its relationship
to the Home Office. The Board also, in our opinion, has insufficient
powers to fulfil its functions as well as possible—in particular,
it lacks the power to compel witnesses. We believe that consideration
should be given to transferring the Board to the Tribunals Service
as an independent tribunal.
23. In relation to the dangerous offenders
provisions, we believe that if the sentence of imprisonment for
public protection is retained, the second offence presumption
in s229(3) Criminal Justice Act 2003 should be abolished. If the
person is genuinely dangerous and is being sentenced for a serious
specified offence, then the presumption is unnecessary. Further,
consideration should be given to imposing a threshold, whereby
if in the absence of the dangerous offender provisions the appropriate
sentence would be less than, say, five years' imprisonment, then
IPP cannot be used.
24. We are also concerned that in the current
state of prison overcrowding, the facilities and programmes available
in prisons may be inadequate to rehabilitate the person so that
the risk to the public is reduced. The removal of non-violent
offenders in all but very serious cases from custodial sentencing
would allow funds to be reallocated to the rehabilitation of dangerous
violent and sexual offenders in the custodial setting.
25. However, we also question the entire
approach of indeterminate sentencing for all but the most dangerous
violent and sexual offenders.
Radical change to the sentencing of women offenders
following the publication of the Corston Review
26. We await with interest the publication
of the Corston review of women's imprisonment. We believe that
many women now in custody could be given effective community sentences
or serve their sentence in alternative accommodation that focused
on the causes of offending behaviour.
Radical change to the youth justice system; the
removal of children from Prison Service custody
27. We believe that the incarceration of
damaged children in unsuitable and dangerous institutions is a
national scandal. We are very concerned that 29 children have
died in custody since 1990. We believe that the youth justice
system is in need of radical reform. Practical steps that should
be taken include:
— Introducing restorative cautioning
for youths to avoid unnecessary court appearances;
— Ensuring OBTJ targets do not
push children into unnecessary formal disposals for minor misbehaviour;
— Widening the criteria for referral
orders in court so that they can be imposed even where a child
or young person has previous convictions;
— Preventing "playground"
behaviour from coming to court in the first place through robust
CPS policy against prosecution in such cases;
— Preventing custody from being
imposed for breach of an ASBO or similar order by a youth;
— Expanding the "last resort"
criterion to provide a custodial sentence may only be imposed
where the child's offending behaviour demonstrates a risk of serious
injury or death to members of the public;
— Abolishing Prison Service custody
for children; local authority secure children's homes should accommodate
those who genuinely need to be in custody; dedicated juvenile
psychiatric provision should also be expanded; if there are individual
young people who require a high security environment then specialist
provision should be made;
— Retain specialist custodial
provision for young adults (the Offender Management Bill would
allow this to be removed).
March 2007
74 http://www.smartjustice.org/presswomenssurvey.shtml Back
75
For further information on this, please see JUSTICE's January
2007 response to Making Sentencing Clearer at www.justice.org.uk Back
76
Restorative Justice: the evidence, vailable from www.smith-institute.org.uk Back
77
For further information see Restorative Justice: the evidence,
Laurence W Sherman and Heather Strang, www.smith-institute.org.uk Back
78
Professor Rod Morgan, quoted in Youth Justice system is in crisis,
officials warn courts, Guardian, 25 October 2006. Back
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