28. Memorandum submitted by
Nicola Padfield
1. I am a Senior Lecturer at the University
of Cambridge, a Fellow of Fitzwilliam College, Cambridge and I
also sit as a Recorder in the Crown Court.
2. Perhaps the most important lesson for
anyone assessing a sentencing system is that sentencing itself
has limited effect. The Committee points to the purposes of sentencing
enacted in s. 142 of the CJA 2003. If the overriding aim (not
singled out in the Act, of course) is the reduction of crime in
society, then more emphasis should be on prevention and detection,
and not simply on sentencing. And within the concept of "sentencing"
the Committee should consider the implementation and enforcement
of sentences, and not simply the "front door" decision
of the sentencer, seen in isolation.
3. The Committee intends to explore the
"custody threshold". Legislation (and the Sentencing
Guidelines Council) still forces sentencers to assume that custodial
sentences are more serious, and higher up the "ladder"
of penalties, than a community order. Yet all sentencers know
that a sentence of nine months" imprisonment probably means
in reality "only" three months inside, perhaps already
served on remand (and a life much disrupted during that time),
thanks to administrative early release under Home Detention Curfew,
a legacy of the Crime and Disorder Act 1998. A community order
with teeth, imposed with challenging demands over perhaps two
years may be much more "punitive" and much more helpful
in encouraging an offender to lead a "good and useful life".
It is time that custody lost its place above community orders
in the hierarchy of penalties.
4. The Committee also intends to question
the process by which sentencing guidelines are agreed. This begs
the question of the "effectiveness" of guidelines. It
is essential that guidelines remain simply "guidelines".
Sentencers need help in making and structuring their sentencing
decisions but there have been many recent examples of over-complex
provisions which hamper rather than help good decision-making.
The guidance must not itself become too complex or too rigid.
5. Recent changes have added to the costs
of the sentencing system. There is the cost of complexity. And
the (often hidden) costs of fragmentation and privatisation. The
costs of "public protection" are obvious: in December
2006, there were 8,396 people in prison in England and Wales serving
indeterminate sentences, an astonishing increase of 31% (up from
6,431) in just one year (see NOMS, Population in Custody, monthly
tables, December 2006). The price being paid for this is enormous:
a growing prison population means not only the obvious costs,
but too often a reduction in effective work with offenders both
inside and outside the prison.
6. So what should be done? Small local prisons
or hostels (run by a joined-up NOMS, ie probation and prison staff)
for both the unconvicted, and for sentenced offenders, more intensive
community orders for persistent non-dangerous offenders, better
supervision of the "dangerous" in the community (and
all this supervised and enforced by the courts). More investment
in "due process": both in court at the sentencing stage,
and at the release (parole, HDC, recall) stage of sentence enforcement.
Beware the growth in fixed penalty notices, ASBOs, conditional
cautions etc: their potential for discriminatory and disproportionate
punishments demands careful monitoring. Due process is well worth
paying for.
7. I attach a copy of my response dated
18 December 2006 to the NOMS' recent consultation on Making
Sentencing Clearer which explored some of these thoughts in
a little more depth. Other recent publications of mine include
two relevant collections of essays: Discretion: its uses in
criminal justice and beyond (co-edited with Loraine Gelsthorpe)(Willan,
2003) and Who to release? Parole, fairness and criminal justice
(Willan, 2007, appearing this month), a chapter on "A Critical
Perspective on Private Prisons in England and Wales" in Public-Prive:
vers un nouveau partage du controle de la criminalite? (eds
Capus, N, et al), Chur/Zrich, Verlag Regger 2005; and two
articles The Parole Board in Transition (2006) Crim LR
3-22 and The Revolving Door at the Prison Gate: Exploring the
dramatic increase in recalls to prison (with Shadd Maruna)
(2006) 6 Criminology and Criminal Justice 329-352.
Nicola Padfield
5 March 2007
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