House of Commons - Justice

Select Committee on Justice Fifth Report

2 Background

The development of sentencing policy

MAKING PUNISHMENTS WORK: THE HALLIDAY REVIEW

7. On 16 May 2000 the Home Secretary announced a review of the sentencing framework. The Review, led by John Halliday, was tasked with considering what principles should guide sentencing. The Report—Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales—was published in July 2001.[8] The Review identified "limitations and problems" with the sentencing framework which had been established by the Criminal Justice Act 1991. This Act "provided a general framework for sentence decision making for the first time".[9] The basic principle was that the severity of the sentence imposed should reflect the seriousness of the offence committed.[10] However, Halliday identified an erosion of this approach, which, he argued, had resulted in a "muddle, complexity and a lack of clear purpose or philosophy" in sentencing policy.[11]

8. His Review also identified the need to put into practice "what works" in order to reduce re-offending, including developing the work of the Probation Services and incorporating restorative justice schemes.[12] Halliday emphasised the need for improved public confidence in sentencing which, he argued, could be achieved through the creation of a principled sentencing framework.[13] Many of the Report's recommendations were incorporated into the Government's 2002 White Paper Justice for All, which formed the basis of the new sentencing framework introduced by the Criminal Justice Act 2003.

CRIMINAL JUSTICE ACT 2003

9. The Criminal Justice Act 2003 set out a new sentencing regime, the stated aim of which was, "to create a sentencing framework in which the public has confidence and which puts public protection at its heart".[14] The Act set out key principles for determining custodial sentences: that prisons should be targeted at "serious, dangerous and violent offenders".[15] Section 152 (2) of the 2003 Act declared:

"The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence".[16]

The Government claimed that the Act focused on reserving custodial punishment for serious and violent offenders who present a risk to the public, and on promoting robust community sentences for the majority of non-violent offenders. The Government also identified that there were people in prison who should not be there, including vulnerable women and young offenders; those requiring mental health treatment; the majority of non-violent offenders with low level disorders, and those on remand for less serious offences.[17]

10. For the first time the purposes and principles of sentencing were put into statute in the 2003 Act.[18] The purposes of sentencing as set out in the 2003 Act are:

a) The punishment of offenders;

b) The reduction of crime (including its reduction by deterrence);

c) The reform and rehabilitation of offenders;

d) The protection of the public; and

e) The making of reparation by offenders to persons affected by their offences.[19]

The Prison Reform Trust noted that in laying down the purpose of sentencing for the first time, the Act provided "a robust metric for its [sentencing policy] effectiveness".[20] While Professor Andrew Ashworth QC criticised the 2003 Act for simply providing a long list of the purposes for sentencing without any sense of priority or clarity of purpose,[21] Lord Woolf welcomed this as "a very satisfactory statement by Parliament of what sentencing should do".[22] However, he expressed a doubt that the current sentencing regime had achieved these purposes. He said "perhaps we achieve the punishment of offenders, but when we look at the other four purposes our record is very poor".[23] The 2003 Act contrasts with the Crime and Disorder Act 1998, which set out a clear statement of the purpose of sentencing in relation to the youth justice system rather than the shopping list provided in the 2003Act.

11. The Prison Reform Trust claimed that since the Criminal Justice Act 2003 was intended to bring a strategic overview to sentencing and to manage the population in prison, it cannot be considered to have succeeded, especially as crucial provisions have yet to be implemented, for example Custody Plus and Intermittent Custody.[24] It stated that "in fact, it has failed entirely, since it was explicitly not a raft of disparate measures but an attempt at a coherent strategy".[25]

12. In its 2006 document Making Sentencing Clearer, the Government acknowledged that although the "sentencing framework has been considerably improved by the Criminal Justice Act 2003, there is still more that we need to do," specifically in ensuring that the system is clearer to the public, and that "we have the most effective policies in place to ensure the public is protected".[26] The document sets out a wide range of measures in relation to the way that sentences are expressed and calculated, "to consider further improvements to custodial sentences and to consider the best use of probation resources".[27] The proposals included:

changes to indeterminate Sentences,[28]
changes to the powers of the Probation Service and a discussion of the role of probation resources;[29] and
changes to community orders.[30]

Some of the Government's proposals were included in the Criminal Justice and Immigration Act 2008, and are discussed in greater detail below.

Change and trends in the prison population

13. Despite, and to some extent because of, a raft of new policies and legislation since 1991, the prison population in England and Wales continues to rise. Paul Kiff of the Cracking Crime Scientific Research Group told us that at the end of 1995, there were 32,000 people in prison serving sentences of over 12 months in length. This number had risen to 54,000 by 2005, an increase of 70%.[31] The Government acknowledged this, and wrote, "sentencing has become tougher over the last decade, with offenders more likely to get a prison sentence and […] the sentence is likely to be longer. The total number of offenders sentenced to immediate custody for indictable offences increased by 26% from 1995 to 2005".[32] Rt Hon Jack Straw MP, Lord Chancellor and Secretary of State for Justice told us that the average sentence length had risen from 14.7 months in 1995 to 16.8 months in 2005.[33]

14. Professor Rod Morgan, the then Chief Inspector of Probation, explained that one of the main reasons for the increase in the prison population was increases in the severity and length of sentences, described as 'uptariffing', which, he argued, had occurred as a result of changes brought about by the 2003 Act. He explained:

"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".[34]

15. We found broad agreement with Professor Morgan's claim. The trend he describes goes diametrically against the stated intentions of the 2003 Act. The Prison Reform Trust stated that the rise in the prison population was "not a reaction to an increase in crime but an aggregate of sentencing changes".[35] It identified two main reasons for the increase in the prison population: first, that sentencers are imposing longer prison sentences for serious crimes and, second, that they are more likely to imprison offenders who 10 years ago would have received a community penalty or even a fine.[36] Nacro also acknowledged this trend,[37] while Lord Carter of Coles argued that "the key explanation for the growth in the use of prison and probation over the last decade is the increased severity in sentencing".[38]

16. The Council of HM Circuit Judges described the current situation as "the results of an absence of sensible planning for the escalation of the prison population which was a predictable result of the implementation of the Criminal Justice Act".[39] It also stressed that "there is an urgent need to address the root causes otherwise steps taken may represent nothing more than stopgap measures".[40] We agree. The Lord Chief Justice added: "One of the problems may well be that judges are not confident that if they impose a community sentence, it is going to be properly administered and the punishment they would like to see imposed is really going to be effective. This is a question of resources; we know that you do not always have adequate resources for the community sentences that magistrates or judges are imposing".[41]

17. Changes in sentencing policy and practice leading to longer sentences have been a significant contributor to the unexpected and unplanned increase in both prison and probation populations. We urge the Government to address sentencing policy in a more considered and systematic way and to reconsider the merits of this trend. This would also provide an opportunity to deal with the proliferation of a complex range of unimplemented, or ineffective provisions.

The proliferation of legislation

18. The Council of HM Circuit Judges reminded us that the Criminal Justice Act 2003 was preceded by the Powers of Criminal Courts (Sentencing) Act 2000, which, it stated, at the time was "heralded as a codification and simplification of sentencing but which was undermined by a series of amendments within months".[42] Most of the provisions of the 2003 Act came into force in April 2005, and apply only to offences committed after that date.[43]The Council made the point that the pace and volume of constantly changing legislation not only "imposes enormous burdens on all engaged with the criminal justice system and greatly increases cost" but that "there is an added complication that for a period two different sentencing regimes exist, the application of which depends upon the date of the commission of offences".[44] It expressed a serious concern that "on many occasions a change in policy results in changes in working practices that require effort and reorganisation yet once implemented, and before there has been time to evaluate the results properly, another change takes place".[45] Sir Igor Judge illustrated the difficulties the proliferation of legislation caused in practice, describing a situation in which he "had to consider five different Acts of Parliament, starting with the Sexual Offences Act 1997, going through the Crime and Disorder Act 1998, a bit of the 2000 Consolidation Act—that was only in force for eight months but it was a crucial eight months when he [the defendant] had done something and been back in court—another Act, and the Sex Offences Act 2003. That is not right".[46]

19. There is clearly a dysfunctional relationship between those elements that are essential to the criminal justice system, stated government policy, legislation (including subsidiary legislation rules and guidance) and sentencing practice (in terms of decision taken by sentencers). This is not a new problem but it is now essential for the nettle to be grasped.

20. The sentencing regime has been complicated by both the pace and the volume of constantly changing legislation. In addition to dealing with new or short-lived criminal offences, sentencers are faced with Acts intended to simplify and clarify sentencing regimes that are themselves swiftly amended. The Government should undertake much more effective policy appraisal in advance of legislation, rather than implement hasty legislation which has previously resulted in unplanned but predictable consequences.

21. The Criminal Justice Act 2003 is a particular example of legislation which was not thought through and had inadequate provision for its implementation.

The Government's response: The Carter Review

22. The Government's response to the ever increasing prison population has been twofold. Firstly, through the Criminal Justice and Immigration Act 2008 the Government is seeking to amend some of the most troublesome aspects of the Criminal Justice Act 2003, and to reduce the demand for prison places.[47] Secondly, the Government has looked at the most cost-effective means to meet the current and future demands for additional prison places, including building new prisons. In June 2007, the Government commissioned Lord Carter of Coles to undertake a review of the use of custody in England and Wales. On 24 October 2007, Jack Straw told Parliament that "a major review conducted by Lord Carter of Coles is currently considering sentencing policy as part of a wider examination of prison and Probation Services".[48] Lord Carter was asked "to consider options for improving the balance between the supply of prison places and demand for them and to make recommendations on how this could be achieved".[49] This was a much narrower request than the review of all sentencing provision, both custodial and non-custodial, which had been recommended by John Halliday, a former senior civil servant in the Home Office, five years previously but which is yet to take place.[50]

Primary findings of the Carter Review

Demand for prison places will outstrip the rate of supply of prison places in the short, medium and long-term unless immediate action is taken;
An effective, integrated and transparent planning mechanism which reconciles penal capacity with criminal justice policy is needed. Without this, there is very little transparency or predictability in the effect of sentencing decisions on penal resources;
Elements of the current capacity programme offer poor value for money and build further strategic and operational inefficiencies into an already inefficient prison system, principally because it has had to proceed on an emergency basis to keep pace with demand; and
There is significant scope for increasing the efficiency and value for money of the prison system in the medium and long-term, both in respect of the services that are delivered and the way in which they are delivered.[51]

23. In December 2007, Lord Carter published his report Securing the Future: Proposals for the efficient and sustainable use of custody in England and Wales.[52] Lord Carter summarised the primary findings of his review as follows:

Key recommendations in the Carter Review

A significant expansion of the current prison building programme should begin immediately so that up to 6,500 additional new places, on top of the significant expansion already planned, can be provided by the end of 2012;
Larger, state of the art prisons should be planned and developed now so that from 2012 there can be approximately 5,000 new places that will allow for a programme of closures of old, inefficient, and ineffective prisons offering better value for money and much improved chances of reducing re-offending and crime;
That a structured sentencing framework and permanent Sentencing Commission should be developed, with judicial leadership, to improve the transparency, predictability and consistency of sentencing and the criminal justice system; and
There are grounds for a more efficient approach to the way operations and headquarters' overheads are structured and managed.

24. Lord Carter subsequently made several key recommendations, including the following:

25. HM Chief Inspectors of Prisons and Probation, the President of the Prison Governors' Association and the Director of the Prison Reform Trust unequivocally criticised Lord Carter's review as disappointing in its lack of vision, breadth and depth. Anne Owers, the Chief Inspector of Prisons, described the report as a "missed opportunity" in that it focused on efficiency rather than effectiveness in terms of rehabilitation and resettlement of offenders. She compared this "belated and narrow response" unfavourably with Lord Woolf's 1991 Strangeways Report and its broad approach.[53] She told us:

"My fear is that what we will get is more prisoners and worse prisons, a focus on efficiency rather than effectiveness, and also a moving away of resources from those things which are currently leading to the rise in prisoner numbers, in other words things like the over-stretched Probation Service, the under-funded mental health services, the kind of things that Baroness Corston thinks are necessary for women and the kinds of support that are needed for those with complex needs coming out of prison. I would have preferred to see a more transparent and broader inquiry. I think it is a missed opportunity to do something like Lord Woolf did 15 years ago which would have allowed all these issues to be fed in and a public debate about what kind of penal policy we want..".[54]

26. Echoing this criticism, Juliet Lyon condemned the Carter report as "the most narrow of narrow reports".[55] Andrew Bridges, HM Chief Inspector of Probation, stressed that there was no point in looking at a 'one size fits all' panacea, as he said Lord Carter did in his review.[56] Paul Tidball said that he missed any thinking "outside the box" in Lord Carter's report.[57]

27. We are also very concerned that Lord Carter's review does not explain in any detail the evidence or the reasoning behind his conclusions. For example, although there is a table showing changes in rates of imprisonment in different countries, there is no discussion of how countries like France and Canada (which Lord Carter shows as having a stable or reduced prison population over the period in which that of England and Wales has starkly increased) have been able to manage their prison populations. All the international examples in the report are drawn from the United States. There is similarly no explanation as to how he determined that his package of short to medium term measures would reduce the projected need for prison places by 3,500-4000 places—for example the contribution of individual measures to the overall projected saving. Nor is it clear what other measures, if any, he considered and rejected and on what grounds. When we asked Lord Carter about the evidence base for his review he was vague. We asked about the estimated saving of 3,500-4,000 places and were told: "There are always movements at the margin in these things, but I think we believe we have got it pretty right".[58]We also asked how confident he was in the prison population projections much of his work was based on, and were told: "A key issue in our working group was how good these forecasts were and if we could rely upon them because we are basing a lot on it. I think our conclusion was that these were as good as we could get".[59] We were told that Lord Carter had access to more data and analysis from the Ministry of Justice than was published with the report. Nevertheless because so little evidence is apparent in the report itself it is impossible to scrutinize the basis of his conclusions. It is clear that the substantial investment now being made on the basis of those conclusions is not based on solid foundations.

28. These key witnesses also identified a lack of consultation on Lord Carter's part during the process of producing his report. For example, when we asked Anne Owers, she said: "at my request I had coffee with Lord Carter on one occasion in the Treasury in July".[60] She was not asked to submit written evidence.[61] The Prisoner Governors' Association had a "formalish hour" with Lord Carter.[62] They were not asked to submit written evidence.[63] In defending Lord Carter's review, Jack Straw acknowledged: "I am not suggesting that this was an inquiry with extensive and formal consultation…"[64], he continued, "it is for Lord Carter and for those to whom he talked to make judgements about whether […] the discussions that were held were adequate".[65] Despite substantial correspondence with Lord Carter to ascertain with whom and on what basis he conducted consultation,[66] we remain unconvinced that his conclusions were informed by sufficient levels of consultation.

29. Lord Carter's review was a missed opportunity for a fundamental consideration of problems with sentencing and provision of custodial and non-custodial facilities in England and Wales. We share the concerns expressed to us that Lord Carter's review was based on wholly inadequate consultation and a highly selective evidence base.

30. In an interview with The Times on 12 July 2007, Jack Straw said that "the Government would not be able to build its way out of the prisons crisis".[67] The paper reported him as indicating that the only way pressure could be relieved was by sending fewer people to jail and using more non-custodial sentences. Even if he could click his fingers "and magic an extra 10,000 places" they would still have to have the same debate about the use of prison.[68] In the interview, Mr Straw called for a "national conversation" about the use of prison. The Committee agrees that this is needed and is actively encouraging such a conversation in its reports and evidence sessions.

31. However, in his oral statement on the Carter report on 5 December 2007, Mr Straw told the House of Commons that "there is no doubt that the prison population will continue to rise in the next few years, given the increasing effectiveness of the system in bringing more offenders to justice". He announced the provision from the Treasury of a further £1.2 billion to deliver an additional 10,500 prison places, 7,500 of those in three new 'Titan' prisons, bringing the net prisons capacity to roughly 96,000 by 2014. As interim measures, he announced, inter alia, the conversion of a former MoD site into a Category C prison and the Ministry of Justice's intention to secure a prison ship.[69] In his evidence to the Committee he denied any inconsistency between these two positions.[70]

32. Andrew Bridges called Lord Carter's prison building proposals and their endorsement by the Government a "high-risk option" where a small incapacitating effect could be achieved at very high cost. Juliet Lyon criticised the rapid decision to invest £1.2bn [which is more than half the current Legal Aid budget for England and Wales] into a prison building programme, "I think the greatest fear of the Prison Reform Trust is that expenditure on this scale without proper public consultation and without proper parliamentary debate will totally eclipse any real advances in rehabilitation, any real effort to solve a very long-standing problem".[71] It became apparent during our inquiry that the Government had not conducted their own cost benefit analysis prior to endorsing the recommendations in Lord Carter's Report.[72]

33. The Government's focus on a huge public investment in building more prison places is a risky strategy. Building new prisons will not solve the fundamental and long-term issues that need to be addressed in order to manage the escalating prison population and move towards an effective sentencing strategy. Moreover, this approach was initiated without sufficient investigation into the costs and benefits and in spite of the Government's own statements that the provision of new places does not present a long-term solution to the current prison crisis.

REDUCING SHORT-TERM DEMAND

34. Recognising that the prison building programme advocated by his report would not be effective before 2010 at the earliest, Lord Carter strongly recommended taking short to medium-term measures to reduce demand for prison capacity. He said: "in addition to the expansion of prison capacity, I believe that you should make immediate changes to existing sentencing legislation to modify the use of custody for certain types of low-risk offenders and offences and encourage use of alternative remedies, in accordance with your strategy for reserving custody for the most serious and dangerous offenders".[73]

35. Lord Carter told the Committee that, in order to reduce demand by 3,500-4,500 places, all of his medium-term measures would have to be implemented, "otherwise there will be a gap".

Lord Carter's proposed measures to manage the use of custody in the short to medium-term were:

Reform of Indeterminate and Extended Sentences for Public Protection to allow for greater flexibility in the usage of these sentences;
Reform of Bail Act Legislation to ensure that custody is reserved for serious and dangerous defendants;
Allowing defendants who comply with the terms of their curfew to be credited for doing so;
Aligning release mechanisms for prisoners serving sentences under the 1991 Criminal Justice Act with those serving sentences under the 2003 Criminal Justice Act; and,
Endorsing and supporting resources being provided for the implementation of provisions of suspended sentence orders and fixed-term recall already in Criminal Justice and Immigration Bill.

The Review also supports the proposal in the Making Sentencing Clearer consultation paper to legislate to remove the option of a community order from the sentencing menu available to the courts for certain offences. This proposal could apply to all low level, non-imprisonable offences (removing some 6,000 community orders per year).[74] […]
Lord Carter estimated that:
The package of recommended measures will […] manage the use of custody so that the projected increase in the need for prison places will reduce by between 3,500 and 4,500 places.

36. In reaction to Lord Carter's report, Jack Straw announced on 5 December 2007 that the Criminal Justice Act 2003 would be amended so that Imprisonment for Public Protection (IPP) sentences could only be imposed by a court with a minimum tariff of two years, being the equivalent of a notional four year determinate sentence. This, and Lord Carter's further recommendations, were then taken forward through the Criminal Justice and Immigration Act 2008.

CHANGING DEMAND IN THE LONG-TERM

37. The only advice Lord Carter could offer to change the balance between supply and demand of prison places in the long-term was for a working group to be set up to consider the feasibility and desirability of a Sentencing Commission and structured sentencing framework. Lord Carter described two American states—Minnesota and North Carolina—which had implemented structured sentencing frameworks and been able to predict the demand for prison places to within a hundred offenders. Whilst offering a structured sentencing framework as a long-term solution to prison overcrowding he did not detail how this might work-except to provide assurances that individual sentencers would not be required to take account of resources in sentencing. His proposed working group was set up in February 2008 and worked to an extraordinary timescale. It produced a consultation document in April and reported on 10 July 2008.[75] The draft legislative programme announced in May 2008, before the consultation on the value of structure sentencing framework closed, included a Bill with room to take forward the structured sentencing framework proposals.[76]

38. Lord Carter's recommendation for the consideration of potential longer-term mechanisms to provide structure to sentencing are welcome. Nevertheless, we are concerned that an ambitious timetable was set for the working group tasked with this consideration. The Government should not seek to implement major changes in this area without effective evaluation of the potential consequences and the resources required to make such changes effective. We will continue to monitor developments in this area.

8 John Halliday, Making Punishments Work: A Report of a Review of the Sentencing Framework for England and Wales, July 2001.Hereafter referred to as The Halliday Review. Back

9 Home Office, Making Sentencing Clearer, 2006, p.3 Back

10 Ibid. Back

11 The Halliday Review, para 0.2 Back

12 The Halliday Review, para 0.3 Back

13 The Halliday Review, chapter 2 Back

14 Ev 54 Back

15 Ev 54 Back

16 Criminal Justice Act 2003, S 152 (2) Back

17 Home Office, Making Sentencing Clearer, p. 6, para 1.14 Back

18 Ev 53 Back

19 Criminal Justice Act 2003, S 142 (1) Back