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5 Feb 2009 : Column 323WH—continued
There are certain answers that we can come up with for what works. If one talks to the Youth Justice Board or to others—as it has, indeed, pointed out to me in a meeting today—housing, family ties and having a job
help. Those three factors have a massive impact on someone when they have been released from prison. All too often, there is a lack of not just one, but all three of those factors in relation to helping drive down crime. We need to consider sentencing in relation to not only the process of what happens in court and the sentence that is handed down, but the effect of the sentence and how it is enforced both in custody and in a non-custodial setting. Crucially, we also need to consider what happens in the time after a sentence and ensure that the investment in trying to ensure that the offender does not reoffend is properly made out and given true value by resettlement.
That is why we have produced the document “Prisons with a Purpose”—if you will forgive me, Mr. Key, for advertising it. I have not got a signed copy here, but I certainly recommend that all hon. Members read it. We would say that a key part of providing effective sentencing is to improve accountability, which is so lacking throughout the system. In terms of the adult prison estates, we must ensure that a prison governor, through a prison rehabilitation trust, has that accountability. Indeed, payment by results would ensure that rehabilitation programmes in prison drove down the risks of reoffending, that there was involvement outside on resettlement and that there was housing, a family connection and a job. That would very much help to reduce high reoffending rates.
The hon. Member for Southampton, Test (Dr. Whitehead) focused particularly on the prison population, which is an issue of concern to all. The Government and everyone no doubt want to ensure that we reduce the high prison population. Various explanations for it have been given and, indeed, debated. The hon. Member for Hazel Grove (Andrew Stunell) mentioned the matter in relation to extending climate factors. Indeed, I visited the Youth Justice Board today at the office where it places offenders in various institutes, and it made particular reference to the key impact of climate. Indeed, on Monday, the snow had an effect: not only did it stop many people from going to work and the buses, but it had a distinct impact by preventing criminals from committing crime. They were disinclined to do so in the cold, and custodial pressures were therefore reduced because of the bad weather—although I am not sure how we can respond to that impact in policy terms. People do not know about the factors that reduce crime, because the evidence is not out there, but one factor is climate. I shall not, however, press that point at any policy level.
Beyond climate, there are three factors that we should take seriously. They provide an explanation for the prison population crisis—and it is a crisis. First, there is the rise in serious and violent crime, which inevitably means that judges and magistrates send violent criminals to prison for longer. Reference was made to the imprisonment for public protection sentence and its effect on the prison population. Secondly, and crucially, Government failure has put us in our current position, and that was made clear in the Justice Committee’s report. The Government ignored the trend and consequences of their legislation and failed to provide sufficient capacity, which was significant. Thirdly, Government policy has had an impact on implementation. Inappropriate top-down targets and bureaucratic experiments have paralysed the system affecting prison governors, probation officers and the whole mission of end-to-end offender management, because they have
not allowed the reoffending reduction drive, which we all want, to have its true impact.
We should unite and find the consensus that the Justice Committee hoped for in the optimistic note at the end of its report. We can unite on the issue of reducing the prison population. We have committed ourselves in the long term to do so, but it will happen only by designing community punishments that are successful in reducing reoffending, and in ensuring that the flow of people into the custodial system is reduced and the focus in prisons is on reducing offending once prisoners are released.
The Committee’s report is entitled “Towards Effective Sentencing”, but the public demand not only effective sentencing but honest sentencing. Sentencing is a real concern and public confidence in it is a real issue. Someone sitting at the back of a court today may feel that sentences being imposed are dishonest, because they do not understand how long a sentence will be served. They hear a sentence of two or three years imposed, and they expect it to be served, but automatic release halfway through a sentence means that the sentence imposed bears little relation to reality.
We say that there must be greater honesty: an honesty that impacts on reoffending reduction and relates to the sentence’s conditions. Sentences should state the minimum time that will be served, and the maximum that will be served unless the offender complies with certain conditions. They should be focused on reducing reoffending and on rehabilitation to make them responsible for getting out earlier, rather than it just happening, as it often does now, by the back door—by executive order through early release schemes that ensure sentences bear little relation to those imposed in court.
We have had a useful and wide-ranging debate that has touched on many aspects of the report. The hon. Member for Cardiff, North (Julie Morgan) referred to the issue of vulnerable people in the criminal justice system. Indeed, she was present when we debated women in the criminal justice system and the Government’s response to the vulnerabilities of women in prison. The reality, which has been highlighted today and in the report, is that most women receive shorter prison sentences than men, and the issue of the prison custodial estate is brought to the fore when we deal with women, because women on remand consistently represent about 25 per cent. of the total female prison population. The Committee’s report also referred to research that highlights the often troubled lives that women prisoners lead prior to incarceration. Before entering prison, almost half of all female prisoners report a measure of drug dependency. Sadly, many women suffer a history of violence and abuse, and they are over-represented in the criminal justice system, as up to 50 per cent. of women in prison report having experienced violence at home, compared with only one quarter of men. Furthermore, one in three women in prison has suffered sexual abuse, compared with just under one in 10 men.
The majority of women in prison are relatively young, because only 16 per cent. are aged 40 years old or more, but, more than 60 per cent. of women in prison are mothers, and 45 per cent. had children living with them at the time of imprisonment. The Prison Reform Trust, which gave evidence to the Committee, estimates that
more than 17,000 children are separated from their mothers by imprisonment each year. Home Office research has found that 66 per cent. of female prisoners are mothers, and they are no doubt affected.
We must consider how the Government have followed up Baroness Corston’s good report, which we debated some months ago. The Government are particularly weak—not least because the elephant in the room is Lord Carter’s titan prison proposal—on Baroness Corston’s recommendation whereby she said:
“The Government should announce within six months a clear strategy to replace existing women’s prisons with suitable, geographically dispersed, small, multi-functional custodial centres within 10 years.”
There have been many discussions about reviews, but there has been no reassurance that the Government are wholly committed to go down that route. It would have a dramatic effect on the conditions of women’s prisons, and we must go beyond the consideration of putting them in different units to the underlying causes—not least drug dependency—that require other settings.
Julie Morgan: The Government have given us their view that such small custodial units are too small, and my emphasis has been on working from the bottom up by trying to secure community resources to stop women going to prison, but does the hon. Gentleman want his party to implement the small units that Baroness Corston recommended?
Mr. Burrowes: I would not want to engage in the detail of the design and diameters of any unit, but we have endorsed the principle of smaller, localised units. Indeed, we did so in our “Prisons With A Purpose” document. There is a price tag attached to that approach, but we must go down that route, see how we can make it practically possible and do more to address the high cost of incarcerating such vulnerable women, and the appalling life consequences for them and their families, because that has a price tag, too. More should be done to ensure that we go down that route.
I commend the Committee on highlighting the failings of the Government’s sentencing approach. They include, the plethora of ill-considered and reactive legislation; the failure to plan for the introduction of indeterminate sentences; the inappropriate warehousing of mentally ill prisoners, whom we have not had the opportunity to discuss, but who are a key concern; the lack of judicial and public confidence in community penalties; the massive overcrowding; and the almost 50,000 criminals who are released early. They represent a damning verdict on the Government, particularly in terms of providing sufficient prison capacity—despite numerous warnings that their building programme was inadequate.
The Government have responded to the Committee inadequately in many ways. One area where they perhaps had an excuse not to be particularly comprehensive in their response was the recommendations on longer-term mechanisms to provide structure in sentencing. The Committee referred to that, but the Government said that they were waiting for the report of the Sentencing Commission Working Group, and that it would be part of their response. That was understandable but no longer applies. The Government have received the report and we now see that it has its own form within the Coroners and Justice Bill. I wish to spend the next few
minutes concentrating on that, because while the context of the Committee’s deliberations was the Criminal Justice Act 2003 and how it has affected legislation, we should also have a mind to the future, which is where we are now.
It is important that amidst the background of overcrowding and sky-high reoffending rates, the Government have sought to deal with inadequate prison capacity by seeking ways to link the overall sentencing framework to prison capacity, and to devise a formal mechanism for structured sentencing framework by which the Executive could exert managerial control over both sentencing and the judiciary.
So we had Lord Carter’s review of prisons in December 2007, which recommended a sentencing commission to replace the Sentencing Guidelines Council. It is important to note that the council had been in existence for only a few short years, and evidence of its success or failure was thin on the ground. Lord Carter nevertheless proceeded to recommend one model in particular, that of a “pioneering” Minnesota-like grid system of sentencing guidelines, which would restrict judges’ independence and ability to sentence, as was historically done, on the facts of the case before them, thereby fettering discretion and compelling judges to treat every case the same. With that model—indeed, the model that Lord Carter originally wanted—the Government would have ensured certainty of outcome; theoretically, the managerial approach that Lord Carter seemed to suggest would predict, as in Minnesota, exactly how many prison places would be required for any given period.
The response bordered on the contemptuous. Sir Igor Judge stated:
“The point about the judicial discretion is that a judge is trying to do justice in the individual case and that is what he must be allowed to do. If I may say so, it does not matter what guidance is offered, what framework comes up, if that is interfered with, then we are going down a very strange route.”
The Magistrates Association followed that up by stating:
“Sentencing is a discrete art that requires the careful application of judicial discretion and common sense in every case to address the seriousness of the particular offence and the circumstances of the individual offender. Restriction of sentencing discretion would be a retrograde step.”
The Justice Secretary pressed on, and we had the working group led by Lord Justice Gage to assess the feasibility of the proposed sentencing commission for England and Wales. The response to Lord Carter’s so-called pioneering proposal was aptly summed up by Michael Zander, QC:
“Carter’s main idea that a Minnesota-type sentencing grid system should be adopted in to make it possible to fit sentencing to available prison places has been comprehensively rejected. Not one of the bodies or academic experts who responded supported it. In fact, they rubbished it. The idea is dead in the water. That reflects little credit either on Lord Carter or, it has to be said, on his team of civil servants. They got it massively wrong.”
We then move on to the Justice Secretary’s contention that
“some method must be found of linking resources to the setting of the sentencing framework”.
The working group’s response was that that would be inappropriate and would involve major changes that would end up
“compromising our overarching commitment to justice.”
It added that Carter’s proposal to manage the supply of and demand for prison places was
“overly formulaic and mechanistic to the extent that it is inimical to our tradition of judicial discretion.”
Despite this opposition and the working group’s recommendation that the Government should take an evolutionary approach, rather than set up a new body, the Secretary of State for Justice has gone ahead with the plans for a new sentencing council, under the Coroners and Justice Bill, which will replace the Sentencing Guidelines Council after just a few years of its being in operation. These plans are deeply worrying in respect of justice and proper sentencing, because effective sentencing cannot just be dealt with by way of a managerial approach to ensure that we deal with prison capacity and resources.
I invite the Minister to respond to a number of questions. On the submission that the proposals would severely restrict judicial discretion, the Government are effectively mandating that guidelines must be followed unless it is in the interests of justice not to do so. The proposals on the guidelines will now be so comprehensive and detailed, dealing with every imaginable scenario and level of seriousness, that it will be impossible, in many ways, for a judge or magistrate to justify, in the interests of justice, that he should depart from the guidelines.
Where is the evidence that judges and magistrates are not following sentencing guidelines? We have talked a lot in the Justice Committee about evidence and what works. Where is the evidence base for this significant departure, which many are concerned about? Can the Minister rebut the concern about the reality, which is that the Ministry of Justice does not collect any data on this issue and does not have any real idea how compliant the judiciary is with the guidelines?
The working group, which was charged with the task of trying to come up with a model, must have looked high and low for some data and evidence that could form the basis of its recommendations. However, it found none, so it had to create its own evidence base. Over a month-long survey timed to coincide with the publication of the report it looked at 222 sentences in the Crown court for just four offences and found 71 that were above the guideline ranges for the relevant level of seriousness. Given that hundreds of thousands of sentences are handed down each year, can the Minister properly justify that the Government’s effectively stripping away the discretion and independence of our judiciary, based on the so-called evidence of just 71 sentences, is an appropriate course of action? The Government’s response, even today, may be that the new council will bring consistency to sentencing, but that is a canard—a lame one. However, Lord Carter based his review not on the existence of geographical sentencing disparity and not on any real evidence, as the Committee Chairman has highlighted, but on the urgent policy needs to manage the prison population. That is not an effective motivation—it is not wholly understandable—on which to seek to formulate a policy on sentencing guidance.
There is already a duty on the Sentencing Guidelines Council to promote consistency in sentencing. A study in 2007 conducted by the Ministry of Justice found that consistency in sentencing had been greatly improved in the past few years. Have there been any further studies suggesting that that is not so? Will the Minister respond to the work of the Judicial Studies Board, which is, through case studies, trying to ensure that there is
adequate training and education for judges so that consistency is applied? Has that work been rejected as not being worthy of continuing? Why do the Government seem intent on fettering judicial discretion in this way? Are they, as seems to be the case, wholly motivated by an acceptance of a failure to provide adequate capacity in prison accommodation and are they seeking a mechanism by which to manage down the prison population, effectively, by the back door? I pray in aid the argument made by the right hon. Member for Cardiff, South and Penarth, who may wish to make a similar point when this clause is debated by the Bill Committee. The driver of resources in respect of the prison population seems to be to the fore when it comes to the proposal for the sentencing council.
We already have ineffective sentencing in the criminal justice system, because there is much sentencing by the back door. The sentencing working group made the point that, when it comes to early release, that has the potential to bring the criminal justice system into disrepute. In fact, I shall go further and say that it is doing just that. The Government are grasping around in the end times, with their last gasp, trying to find solutions to problems that are, in many ways, of their own making. They want to manage the sentencing, because they have failed to manage the capacity of the prison estate. Without the certainty that the judiciary will follow their prescriptive guidelines to the letter, the Government cannot ensure that this framework will fit the capacity.
As has been said on many occasions, linking the framework to resources is wrong in principle. The sentence should fit the crime, not jail capacity. The Government might respond by saying that individual sentences will not be affected by the availability of prison places, but that is not the charge against them. In fact, the problem is much worse, because every sentence might now be affected by the availability of prison places. If prison populations are under pressure, as indeed they are, the Government might seek to reduce sentencing ranges across the board for a given offence. Will the Minister assure the Chamber that the proposed new sentencing council will never produce a guideline to weaken the sentencing ranges simply to dig the Government out of the hole that they have dug for themselves?
The proposals are particularly worrying given the Justice Secretary’s direction to use community sentences instead of short prison sentences. The Justice Committee referred to the inadequacy of short prison sentences. I understand the argument that the rehabilitation possible during a short period is limited and has a limited impact. However, the answer should not be to direct the provision of community sentences rather than the imposition of prison sentences, as the Justice Secretary has pleaded, time and again. Let us leave aside the fact that magistrates can use custodial sentences only as a last resort and that only one in 10 of those coming before magistrates for short sentences are there for the first time—others will have previous convictions and many will have had community sentences imposed that have not been completed or had their desired effect. Will the Minister recognise that prisoners serving short jail sentences make up a small proportion of the total number of prisoners in our jails?
Is the Government’s prime desire to reduce the prison population? Directing a community sentence approach could reduce the population by 7,000 and water down 60,000 sentences. Surely, however, the problem of short sentencing should be dealt with by ensuring that community sentences work, are much more robust and have the confidence of the judiciary and the public, rather than by seeking to supplant what magistrates should properly be doing. Taken together, in many ways, the report provides the recipe for the dangerous cocktail that the Government have provided within the criminal justice system. It is dangerous to the future and the past, and is raising many concerns; to the traditions of our criminal justice system; to judicial discretion and independence, which would be severely curtailed; and to victims of crime, who want to see justice done, not avoided because the Government have failed in their duty to build adequate capacity.
I wish to end not on a gloomy note, but on the optimism at the end of the report. Such debates require as much cross-party consensus as possible. It is not good for the debate to be dealt with by way of headlines and the tabloid response. We need to move forward and ensure that opinion moves with us. That could be done through drawing on the Justice Committee’s other inquiry on justice reinvestment, which I commend. Communities need greater ownership of the criminal justice system.
In many ways, prison policy is a hidden world; it is hidden away from local communities, which have little involvement in that area. Certainly with regard to youth offending, we need much more consideration of how the local community and the local authority by way of budgets can have greater involvement and a greater incentive to know exactly why people are going into custody and how that can be prevented. In the context of the inquiry and future report on justice reinvestment, there are hopes of a brighter future in which we can unite to ensure that we provide effective sentencing. We await future debates on that.
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