43. Memorandum submitted by
Dr Martin Wright[152]
1. What would a more effective long-term sentencing
policy look like?
1.1 The essential point is to be clear about
the aims of sentencing. As the announcement of the Inquiry reminds
us, the Criminal Justice Act 2003 (sec 142) (CJA) defines the
purposes of sentencing as:
— The punishment of offenders.
— The reduction of crime (including
its reduction by deterrence).
— The reform and rehabilitation
of offenders.
— The protection of the public.
— The making of reparation by
offenders to persons affected by their offences.
David Blunkett, as Home Secretary, made it seem
even simpler: his "two very clear objectives" were "to
punish offenders and reduce re-offending" (Reducing crime—changing
lives, 2004). A different set of aims will be quoted in paragraph
1.4.
1.2 Lord Justice Auld (2001), however, warned
against regarding sentencing as a solution. He said that:
I have always been of the view that we expect
too much of the courts as a medium for reducing crime, for remedying
wrongs to victims and society and for rehabilitating individual
offenders (p 387).
He therefore considered that:
[t]here is value in providing for resolution
outside the courtroom so far as is consistent with justice, the
public interest and efficient public administration" (p 368);
and that "[a]ny initiatives in this field should be part
of an over-all and principled reform aimed at removing from the
courts matters for which they are not appropriate or necessary,
while leaving them, in the main, to deal with matters for which
they are well suited, in particular, marking society's disapproval
and safeguarding public and private safety (p 388).
In sum, he recommended:
the development and implementation of a national
strategy to ensure consistent, appropriate and effective use of
restorative justice techniques across England and Wales (p 391).
1.3 With respect, Sir Robin Auld did not
go far enough. There is a comfortable assumption that the aims
set out by the CJA and Mr Blunkett are complementary: while a
person is being punished in prison, the public is protected and
he or she can undergo rehabilitation. In fact they are contradictory.
The more punitive, the less rehabilitative. Protection of the
public is almost always only temporary, and incurs a high re-offending
rate, just as a mortgage incurs interest. The greater the deterrence,
the greater the lengths to which offenders will go to escape conviction.
And so on. (These points are written mainly with imprisonment
in mind, but apply to other sanctions to some extent. There is
no need to dwell here on the well-known counterproductive effects
of imprisonment: creating social exclusion and homelessness, splitting
families, creating stigma, and so on, to say nothing of the reconviction
rate. The fact that each time a person is imprisoned, the chances
increase that he or she will be imprisoned again, makes nonsense
of the claim that prison "works".)
1.4 It is interesting to compare the aims
in the Criminal Justice Act with those of the review of sanctions
for regulatory offences, whose effects on their victims can be
just as serious as those of "street crimes", including
deprivation of property, injury and even death. The review concludes
that:
1. aim to change the behaviour of the offender;
2. aim to eliminate any financial gain or
benefit from non-compliance;
3. be responsive and consider what is appropriate
for the particular offender and regulatory issue, which can include
punishment and the public stigma that should be associated with
a criminal conviction;
4. be proportionate to the nature of the
offence and the harm caused;
5. aim to restore the harm caused by regulatory
non-compliance, where appropriate; and
6. aim to deter future non-compliance.
(R B Macrory, Regulatory justice: making sanctions
effective. London: Better Regulation Executive, 2006, p 11).
It is noticeable that punishment for its own
sake is evidently not thought to be of primary relevance to the
effectiveness of sanctions.
1.5 A basic problem is that the CJA's first
aim, punishment, is not really an aim, but a strategy intended
to achieve other aims. It is essential to look at those aims and
see whether they could be achieved by a method with fewer unwanted
side-effects. A major aim is to symbolise the seriousness of the
harm caused by the crime. This could be achieved more constructively
by the amount of reparation that the offender makes. An extreme
example is the former cabinet minister John Profumo, who spent
the rest of his life making reparation for his errors through
community service. To be sure, he did so voluntarily, but compulsory
service is also possible. In South Africa a woman who killed a
young burglar, but was unlikely to commit further violence and
had four dependent children, was given a sentence of eight years'
imprisonment suspended for three years, on condition that inter
alia she apologize to the victim's mother (High Court of South
Africa, Transvaal Provincial Division, State v Maluleke and
others, CC 83/04). Another case was cited as a precedent,
in which community service coupled with suitable conditions was
imposed for homicide (S v Potgieter 1994(1) SACR 61(a)).
1.6 A second aim is to discourage the offender
from repeating the offence. To call this deterrence is to assume
that scaring people is the best way to persuade them to behave
with consideration for others. Related to this is the aim of scaring
others. It is a truism that the basis of deterrence is the fear
of being caught; the likely punishment self-evidently only influences
a person who believes he or she is likely to be caught and convicted,
knows what penalty to expect, and cares about the consequences.
1.7 It is essential to look for other ways
of persuading people to behave. In a civilised society these must
surely include making offenders concerned more about harming others
than about risking punishment themselves. They have to be persuaded
that they are capable of taking a place in the community in a
better way, and trust that others in the community will re-accept
them when they have made amends.
1.8 It is reported that the German Prison
Act of 1976 defines three guiding principles of prison administration:
(1) Life in prison should, as far as possible, reflect the general
relationships of the outside world; (2) Administrators should
work to limit the damaging effects of imprisonment; and (3) the
administration of prison should be aimed at assisting the prisoner
to adapt to life in freedom. This demonstrates a recognition that
life in prison does not resemble the community in which offenders
are supposed to live; that prison has damaging effects, and that
people need extra help in returning to freedom, which they would
not need if their freedom had not been taken away in the first
place. For all these reasons, it is in the public interest to
avoid prison sentences wherever possible.
2. What steps might be taken to reduce the
prison population whilst retaining public confidence in the criminal
justice system?
2.1 If people are being sent to prison inappropriately
for lack of more appropriate facilities, the obvious way to deal
with overcrowding in the former is to provide more of the latter.
Sentencers should insist on this. Public confidence requires that
community measures are carried out in the best possible way: cutting
probation resources to pay for prisons makes no sense.
2.2 A method is needed to ensure that for
every thousand by which the prison population is reduced, equivalent
resources are transferred to community facilities. (With prison
running costs of the order of £40,000 per place at 2007 prices,
this would release up to £40 million per thousand places.)
2.3 Whenever a court imposes a sentence
which is likely to appear "lenient", it should (as in
New Zealand) issue a simultaneous press release explaining its
reasons for believing that a community sentence is more in the
public interest.
3. What steps should be taken to get people
from vulnerable groups (women, young people, the mentally disordered,
alcohol and drug addicts, and minor offenders out of prison?
The top priority is to transfer resources from
the budget for building and running prisons to building and running
the facilities that have some chance of helping them to live more
productive lives—for their own sake and everyone else's.
4. How can community sentences be more appropriately
used?
4.1 Probation (or after-care supervision)
is not the same as surveillance. It is more likely to be effective
if it is based on a respectful relationship than on a crude threat
of recall to prison (see Question 7 below). A relationship also
implies continuity, which has implications for the structure of
the probation service: a succession of short-term contracts with
high staff turnover will not be helpful.
4.2 It should be made clear that community
service is seen as a way of making amends to the community; it
should not be seen as a punishment or a stigma, but on the contrary
a means for the offender to show what he or she is capable of
contributing if given the chance—and for the community to
reciprocate.
5. What is the role of restorative justice?
The philosophy of restorative justice has several
strands.
5.1 It should not be assumed that the criminal
justice system is the best agency to deal with any action which
is capable of being defined as a crime. For example, when a dispute
has resulted in criminal damage or an assault, it is often in
everyone's best interest to address the dispute rather than the
criminal incident, by referring the case to a community mediation
centre rather than to the police.
5.2 The harm caused by the offence should
be balanced by making amends, rather than by inflicting further
harm on the offender.
5.3 The victim should have the opportunity
to meet the offender to seek explanations and discuss the best
form of reparation. (This contrasts with victim statements, which
offer no opportunity for dialogue.)
5.4 Many victims want steps to be taken
to reduce the likelihood of re-offending, for the sake both of
potential victims and of the offender him or herself. The offender's
co-operation with rehabilitation programmes, when needed, should
therefore be regarded as a form of reparation (for example, Naomi
Campbell's attendance at an anger management course).
5.5 The community should be involved, for
example by providing mediation services and where appropriate
trained volunteer mediators (for which the lay magistracy and
youth offender panels provide precedents). The community also
has a responsibility to enable the offender to make reparation.
5.6 The informal dialogue of a restorative
process allows the discussion of background circumstances that
would not be admissible in a criminal case. These can throw light
on background factors which affect crime, such as inadequate employment,
schools and housing, and there should be a system for passing
them on to those responsible for crime reduction strategy.
5.7 Restorative justice should therefore
be available at any stage: as an alternative to the court when
the parties are known to each other, as diversion from prosecution,
pre-sentence, as part of a sentence (subject to consent), or post-sentence/pre-release.
The earlier in the process it takes place, the greater the saving
of time and resources.
6. Should short term imprisonment be abolished,
and if so, how?
6.1 Yes, by a provision similar to the one
in the CJA 1982, setting a threshold below which prison cannot
be used. The sanction of choice should be reparation: fines should
be replaced by reparation (financial or through service) to the
community for the harm caused.
6.2 A prison sentence should not be imposed
unless the court can show that it has examined community-based
measures and that it would not be in the public interest to use
them. No one should be sent to prison for lack of facilities for,
eg, treating mental disorder or addiction to drugs, alcohol or
gambling, or for community service.
6.3 Custodial and community measures should
be paid for from the same budget, so that there is a financial
incentive to avoid the use of custody unless it is necessary for
public protection.
7. How can the system of recalls for offenders
who breach community sentences or licence conditions be improved?
A procedure should be in place for the offender
to discuss their circumstances immediately, not after a spell
in prison. They should have the opportunity to explain any change
of circumstances, and to make a fresh commitment to comply with
the terms of the order. In particular, they should be allowed
to point out any lack in the support which they have received;
orders should be regarded as two-way contracts between the offender
and the community, in which both have responsibilities.
8. Should it be more difficult to qualify
for indeterminate sentences for public protection?
Yes, courts should be required to give reasoned,
not formulaic, explanations of why these are necessary, and should
be satisfied that an institution with suitable treatment facilities
is available before passing the sentence.
9. Should the use of conditional cautions
and referral orders be extended?
9.1 Prosecutors should be actively encouraged
to use conditional cautions. A caution should count as a successful
disposal of a case. In calculating the time taken for the disposal
of a case, the date of referral (not completion) should be used,
to avoid putting pressure on victims to take part before they
are ready.
9.2 Where the prosecutor has not done so,
it should still be open to the court to adjourn a case, where
the accused did not deny involvement, for an assessment of the
possibility of a restorative outcome. In New Zealand this is the
norm for juvenile offenders, fulfilling the function of pre-sentence
reports. Some cases could then be discontinued; others could be
brought back to the court, which could then endorse (or if necessary
modify) the agreement reached by the victim and the offender.
9.3 As the CPS has pointed out, however,
this option requires the availability of personnel trained to
conduct restorative meetings. Given the government's policy of
encouraging involvement of the voluntary sector, there should
be specific encouragement for those who wish to take the initiative
in setting up a local accredited mediation service which could
assess such cases when they were referred to it, and conduct restorative
meetings where appropriate.
10. Given that many persistent offenders commit
minor offences, how would you recommend dealing with them?
Since they are evidently unable to meet their
needs by legitimate means, there should be a discussion with them,
and any significant people in their lives, as to how they could
make their contribution to society by legitimate means. If there
are no suitable people who are significant to them, the voluntary
sector should be encouraged to provide support of this kind. Once
again, it is a question of a two-way contract: they need to be
not only persuaded, but enabled, to be included in society.
11. To what extent has public confidence in
sentencing been eroded (eg by the media), and what can be done
about this?
11.1 Some sections of the media are guilty
not only of circulation-chasing headlines, but of mental laziness,
in promoting without question the assumption that "toughness",
such as naming-and-shaming and imprisonment, is the best way of
promoting social cohesion, and that non-custodial sentences are
a "let-off".
11.2 Opinion-formers, especially politicians,
need to stand up against this, supported by the knowledge that
despite the headlines, the majority of the public, including victims,
is not as vindictive as is commonly assumed. The British Crime
Survey, for example, found that only about a third of victims
of burglary or mugging wanted "their" offender to be
imprisoned (Home Office Research Study 200, Attitudes to crime
and criminal justice, 2000, Tables A6.2 and 6.3). More recently,
an ICM survey found that about two thirds of crime victims do
not believe that prison works to reduce offences such as shoplifting,
stealing cars and vandalism, and more than half thought that paying
back to the community by doing compulsory work would be effective
(Smart Justice, Crime victims say jail doesn't work, 2006).
11.3 There are indications that victims
who have met their offender feel less angry and vengeful, especially
when the offender is young; greater use of restorative measures
can therefore be expected to assist in changing attitudes. Most
offenders, too, regard the process as fair, so that their respect
for justice is increased.
11.4 That said, however, for more serious
crimes people do want the seriousness of what they have suffered
to be recognised. As was pointed out in Paragraph 1.4 above, reparative
measures need to be adequate and adequately carried out, but their
adequacy may be measured as a sincere apology backed up by undertaking
a serious reparative task.
12. How can arrangements for the rehabilitation
and resettlement of offenders contribute towards more effective
sentencing?
Sentencers should remember that resettlement
will not be necessary if the offender is not sent to prison in
the first place.
13. Should the sentencing guidelines process
be changed? If so, how? Is the current approach the most appropriate?
13.1 The primary aim should be to (re)integrate
of those who have broken the law into the community, and to identify
pressures that may cause others to offend. Both the Sentencing
Guidelines and the Judicial Studies Board should recognise that
a sentence is only the choice of a measure; its effect depends
on those who carry it out. In an overcrowded prison an given amount
of punishment is inflicted in a shorter time, and participation
in rehabilitative programmes is reduced. The Sentencing Guidelines
Council should educate the public, for example by issuing research
findings and fact sheets showing what is and is not effective;
then when it makes recommendations, the reasons for them are more
likely to be understood.
13.2 It needs to be recognised that to react
to current events, such as the use of mobile phones by motorists
or the use of guns, by increasing sentence maxima, is not an effective
response. The appearance of a conflict between politicians and
the judiciary should be avoided: there should be seminars for
judges, politicians and journalists to increase awareness of the
limitations of sentencing and the need to look into more far-reaching
ways of reducing social conflict.
March 2007
152 Dr Martin Wright is the author of Making good:
prisons, punishment and beyond (1982), Justice for victims
and offenders (2nd ed 1996), and Restoring respect for justice
(1999) in which these points are developed (especially in chapters
2, 5 and 6). He is a former director of the Howard League for
Penal Reform and policy officer for Victim Support. He is currently
vice-chair of the Restorative Justice Consortium, but writes in
a personal capacity. Back
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