25. Memorandum submitted by
Nacro
BACKGROUND
1. Over the 10 years between June 1996 and
June 2006 the prison population has risen by 41% and the female
prison population has nearly doubled. This is not principally
because of rising crime. It is because of rising punitiveness.
In 1994 courts imprisoned 18% of offenders. In 2004 they imprisoned
28% and sentences also lengthened over the period. Although there
was a fall in the percentage of offenders imprisoned between 2004
and 2005, custody rates are still very much higher than a decade
ago.
2. At magistrates' courts the custody rate
increased from 7% in 1994 to 16% in 2004, falling to 14% in 2005.
At the Crown Court the rate rose from 53% to 61% between 1994
and 2004, falling to 60% in 2005.
3. The trend towards more and longer prison
sentences has produced a record 80,000 prison population, an overflow
of prisoners into police cells, the moving of prisoners into an
unfit wing at Norwich and a search for new makeshift ways of accommodating
prisoners, such as the use of prison ships. At the end of October
2006, 87 prisons were overcrowded representing 62% of the prison
estate. The overcrowding of the prison system reduces prisons'
ability to rehabilitate offenders effectively. Currently 66% of
prisoners are reconvicted within two years of release. It is estimated
that ex-prisoners commit around one million crimes every year
in England and Wales, accounting for 18% of all offences.
SPECIFIC SENTENCING
ISSUES
1. Sentence lengths
4. The average custodial sentence length
for indictable offences at the Crown Counrt increased from 20.5
months in 1994 to 27.1 months in 2004. There was a reduction in
the average length between 2004 and 2005 to 25.9 months. However,
the 2005 average does not include.indeterminate sentences of Imprisonment
for Public Protection, which have replaced determionate sentences
in significant numbers since April 2005, so the apparent decrease
in length in 2005 may be misleading.
5. One reason for the lengthening of sentences
over the last decade is the "climate". Over the last
13 years successive Home Secretaries and Shadow Home Secretaries
have vied to outbid each other in public statements designed to
outbid each other in demonstrating toughness on crime. This, in
combination with the coverage of sentencing issues in parts of
the media, has led courts to respond by increasing the severity
of sentencing. It is true that Ministers have also made statements
proposing a greater use of community sentences for less serious
and vulnerable offenders, but these have not been promoted with
the same headline-hitting effect as "get tough" statements.
6. This climate has militated against guidelines
issued by the Sentencing Guidelines Council and promoting shorter
sentences for non-dangerous offenders. These guidelines advised
courts to reduce sentence lengths for non-dangerous offenders
by 15% to compensate for the longer post-release supervision periods
introduced by the Criminal Justice Act 2003. To date this advice
does not appear to have impacted on the courts' practice.
7. If we are to achieve a greater balance
in sentencing, it is important that Ministers should send out
a strong, sustained and consistent message arguing for a reduced
use of prison. This message should be reinforced by legislation
requiring sentencing guidelines to take into account the capacity
of the prison system, a change which was proposed by the Carter
report and accepted by the Home Secretary before last (David Blunkett)
but which has not been implemented.
8. Foreign national prisoners, who number
over 10,000 and constitute 14% of the prison population, typically
serve long sentences, with six out of ten serving sentences of
more than four years. A high proportion (four out of 10 sentenced
men and six out of 10 sentenced women) are serving sentences for
drug offences, mainly drug trafficking. Sentencing guidelines
should be altered to enable courts to exercise more discretion
to pass less draconian sentences on poor people (including many
women) from developing countries who are bribed by drug traffickers
to smuggle in drugs. The impact of drug trafficking on victims
is, of course, appalling. However drug "mules" are also
victims of injustice because sentencing guidelines for these offences
do not allow courts to take into account personal mitigating factors
to the same extent as they can for almost all other types of offence.
2. Indeterminate sentences
9. The use of indeterminate sentences of
Imprisonment for Public Protection (IPP), introduced by the Criminal
Justice Act 2003, has exceeded expectations. In late 2006 around
1,700 prisoners were serving IPP sentences, reflecting a sharp
build-up since the introduction of this sentence in April 2005.
On average every month in 2006 about 125 new IPP sentences were
imposed. It is estimated that the number of prisoners serving
such sentences will reach 12,500 by 2011.
10. The IPP sentence is triggered by a conviction
for any one of 153 violent or sexual offences. These include many
offences which vary widely in seriousness. For example, wounding
with intent can range from near-nurder to a single punch breaking
someone's nose or knocking someone's tooth out. The 2003 Act required
courts to pass the sentence if they consider that an offender
convicted of one of these offences poses a risk of serious harm.
The legislation states that the court "must assume that there
is such a risk" unless, after considering all the evidence,
it considers that this conclusion would be unreasonable. Faced
with this statutory presumption, some sentencers appear to have
imposed IPP sentences quasi-automatically.
11. As the initial offence need not be especially
serious, half the offenders receving IPP sentences are receiving
relatively short tariffs (the minimum period before they can be
considered for release) of 20 months or less. In the absence of
IPP sentences, these offenders would have been imprisoned in any
event but given fixed sentences. The rapid build-up of prisoners
serving IPP sentences is likely to increase overcrowding as some
prisoners will be refused release at their tariff date for a range
of reasons—for example, because they are still waiting to
participate in an offending behaviour course which could have
reduced their risk and enabled the Parole Board to release them
on licence.
12. The 2003 legislation should be revisited
to remove the presumption in favour of use of this sentence. The
law should be framed more simply, empowering courts to pass an
indefinite sentence if they conclude, based on clear and positive
evidence, that the offender poses a risk of serious harm.
3. Short sentences
13. Although there has been a recent reduction
in the use of short prison sentences, at any one time 8,600 prisoners
are serving sentences of under 12 months (which means that they
serve less than six months in custody). Of the 52,920 sentenced
prisoners received into prison in the year from October 2005 to
September 2006, 39,495 had been given sentences of under 12 months.
These sentences do little to protect the public because containment
periods are short. The time spent in prison is too brief for a
serious rehabilitation attempt but long enough for prisoners to
lose homes and jobs, which makes them more likely to reoffend.
70% of short-term prisoners are reconvicted within two years of
leaving prison. It would also help to tackle the revolving door
of short term prisoners if the Government commissioned voluntary
organisations to provide a national resettlement service for short
term prisoners. Such a service could provide assistance to such
offenders on release and thereby reduce the number who keep going
back to prison.
14. Many short-term prisoners would be better
dealt with by community sentences. Supervision programmes which
challenge and change attitudes to offending, help offenders to
restrain aggressive and impulsive behaviour, develop employment-related
skills and tackle addiction problems are more likely to reduce
reoffending than other forms of punishment. This is particularly
so if they are combined with assistance with accommodation, benefits
and the other practical needs of supervised offenders.
15. Consideration should be given to changes
in legislation or sentencing guidelines which would remove prison
as an option for low level non-violent crime. One example is the
option recently canvassed by the Sentencing Guidelines Council
of removing imprisonment for low-value shoplifting offences which
do not involve significant planning. 21% of shoplifters are now
imprisoned compared with 5% in 2000—a trend which has been
reinforced by the requirement in the Criminal Justice Act 2003
for courts to treat each previous conviction as an aggravating
factor when sentencing. Although these sentences are usually short,
it is difficult to see the point of imprisoning shoplifters for
a few weeks in overcrowded prisons which neither rehabilitate
nor deter them.
16. Although the number of community sentences
increased by 57% between 1995 and 2005 (from 129,000 to 204,200)
this has not led to a reduction in the use of imprisonment over
this period. It seems clear that in many cases community sentences
have replaced fines rather than custodial sentences, as the proportion
of offenders fined for indictable offences fell at magistrates'
courts from 37% in 1995 to 24% in 2005. At the Crown Court there
was a fall from 5 to 3%. International comparisons in the use
of the fine are striking. For example 59% of theft offenders are
fined in Germany, 70% in Denmark and 48% in Sweden compared with
20% in England and Wales.
17. The Government should require all areas
to operate "gatekeeping" schemes which would involve
designated staff checking reports prepared for courts by the probation
service and youth offending teams. Where no community sentence
is proposed in a report and the offender appears to be at risk
of a custodial sentence, the report writer should be asked to
put forward a community sentence option for the court's consideration
(unless the offender is a serious danger). Where a report writer
is proposing an intensive community order, the "gatekeeper"
should assess whether the offender is genuinely at risk of prison.
If not, a less intensive sentence should be proposed so that intensive
probation resources are concentrated on those who most need them.
18. The credibility of the fine should be
reinforced by introducing a means-related "day fine"
system. Consideration should also be given to introducing a new
disposal, similar to the referral order for juveniles, which would
be applied to adult offenders appearing in court for the first
time. This would enable the case to be remitted to a community
panel which would deal with it by measures which can include mediation
and reparation.
4. Some categories of prisoner
19. A number of specific measures should
be implemented to reduce the number of prisoners in the following
categories:
— Mentally disordered prisoners.
Around 70% of prisoners have two or more mental health disorders
and 5,000 have serious and enduring mental illnesses. Some areas
have psychiatric assessment schemes at police stations and courts
which work to divert mentally disordered offenders from prison
into health and social care. Other areas do not have such schemes.
No health service money is ring fenced for this purpose and health
authorities can choose whether to fund them or not. Health authorities
should have no choice in the matter and all should be required
to provide funding for such diversion schemes. It could also help
to ensure appropriate sentencing if specialist mental health courts
were establishments with magistrates and other personnel who have
expertise and training in dealing with mentally disordered offenders.
— Juveniles. The number of juveniles
in prison service establishments is now over 2,300, and in addition
a further 475 are held in secure training centres and secure children's
homes. The draft Youth Justice Bill which the Government published
two years ago contained a provision which would have prevented
courts from passing detention and training orders on juveniles
unless they had first tried an intensive supervision and surveillance
programme. (This would not have applied to juveniles found guilty
of grave crimes.) This proposal should be enacted. A similar provision
should also be considered for adults on the basis that it is inappropriate
to send non-dangerous offenders of any age to prison before trying
a really intensive alternative without the undesirable side-effects
of custody.
— Women prisoners. The women's
prison population has almost doubled in the last 10 years and
currently stands at around 4,400. Over a third of all adult women
in prison have no previous convictions (this is more than double
the proportionate figure for male prisoners). Most women serve
short sentences. In 2004 nearly two-thirds were sentenced to six
months or less. Women prisoners would therefore benefit from proposals
to reduce the number of short term prison sentences set out earlier
in this paper. The Chief Inspector of Probation has criticised
some probation areas for failing to provide community sentences
sufficiently tailored to the needs of women offenders. Pro-active
steps requiring all areas to do so could help to reduce the inappropriate
use of prison for vulnerable women.
— Imprisonment for breach. There
has been a significant increase in recent years in the imprisonment
of people who have breached community supervision (either community
sentences or post-release licences), for example by missing or
being late for probation appointments. Recalled prisoners now
make up 11% of the population of local prisons. As time goes on
the provisions of the Criminal Justice Act 2003 will mean that
the time during which prisoners are under supervision, and therefore
at risk of recall to prison, will greatly increase because the
Act substantially extends post-release licence periods. There
should be a graduated scale of punishments for breaches, with
prison only being used when less severe penalties have first been
tried.
— Prisoners on remand. The number
of remand prisoners is currently around 13,000. Between 1994 and
2004 there was a 20% increase in the number of men remanded in
custody and a 115% increase in the number of women. Around half
of remand prisoners are subsequently found not guilty or given
non-custodial sentences. Many of these defendants could safely
be given bail if appropriate accommodation and support were arranged
for them in the community. The National Offender Management Service
is preparing plans to commission bail accommodation and support
programmes in every region. This is a welcome move which should
help to reduce the unnecessary use of custody for people awaiting
trial.
— Prisoners from racial minorities.
Currently minority ethnic people constitute 25% of the prison
population but only 9% of the general population. This disproportion
owes much to the cumulative effect of discriminatory processes
at earlier stages of the criminal justice system. Past research
has also found that some courts impose disproportionately severe
sentences on minority ethnic offenders which cannot be explained
by offence seriousness or by the previous criminal records of
offenders. Regrettably, the existence and quality of ethnic monitoring
data on court sentencing is currently patchy and variable. This
situation needs urgently rectifying so that courts which disproportionately
sentence minority ethnic offenders to prison (after allowing for
types of offence) can be made aware of this and warned about their
practice.
CONCLUSION
20. The Government aims to build 8,000 more
prison places by 2012. However, it is not possible simply to build
a way out of the prison population crisis. Since 1997 the Government
has provided nearly 20,000 additional prison places, yet we have
more overcrowding than previously. Unless determined steps are
taken to achieve a balanced sentencing policy with a more sparing
use of imprisonment, courts will simply fill new pirsons with
ever more prisoners, providing no relief for currently overcrowded
establishments. It is like trying to run down an escalator which
is moving ever more rapidly upwards. The measures set out in this
submission are among those which could help to slow down the escalator.
SUMMARY OF
RECOMMENDATIONS
1. Ministers should send out a strong, sustained
and consistent message arguing for a reduced use of prison.
2. Legislation should require sentencing
guidelines to take into account the capacity of the prison system.
3. Sentencing guidelines should be altered
to allow courts to exercise discretion to pass less draconian
sentences on drug "mules".
4. The statutory presumption in favour of
the use of sentences of imprisonment for public protection should
be removed. The law should simply empower courts to pass an IPP
sentence if they conclude, based on clear and positive evidence,
that the offender poses a risk of serious harm.
5. The Government should commission voluntary
organisations to provide a national resettlement service for prisoners
serving sentences of under 12 months.
6. Consideration should be given to changes
in legislation or sentencing guidelines which would remove prison
as an option for low level non-violent crime.
7. The Government should require all areas
to operate "gatekeeping" schemes which would involve
designated staff checking reports prepared for courts by the probation
service and youth offending teams.
8. The credibility of the fine should be
reinforced by introducing a means-related "day fine"
system.
9. Consideration should be given to introducing
a new disposal, similar to the referral order for juveniles, which
would be applied to adult offenders appearing in court for the
first time.
10. Health authorities in all areas should
be required to provide funding for diversion schemes for mentally
disordered offenders.
11. Legislation should prohibit courts from
passing custodial sentences on juveniles (other than those convicted
of grave crimes) unless they have first tried an intensive supervision
and surveillance programme. A similar provision should be considered
for adults.
12. Proactive steps should be taken to require
all probation areas to provide community sentences tailored to
the needs of women offenders.
13. There should be a graduated scale of
punishments for breach of licences, with prison only being used
when less severe penalties have first been tried.
14. We welcome plans by the National Offender
Management Service to commission bail support and accommodation
schemes in every region.
15. All court areas should be required to
produce comprehensive and accurate ethnic monitoring data on sentencing.
Courts which disproportionately sentence minority ethnic offenders
to prison (after allowing for types of offence) should be made
aware of this and warned about their practice.
March 2007
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