66.We set out in this chapter various explanations for the almost doubling of the prison population over the last 25 years. The Story of the Prison Population 1993–2016, published by the Ministry of Justice in July 2016, described the key changes:
67.The recent fall was attributed by the Minister when he appeared before us in June 2018 to the use of Home Detention Curfew, which he estimated accounted for around half of the reduction, and to a fall in the number of people prosecuted resulting in a fall in the 12- to 24-month prison population.
68.The main trends in the Ministry’s annual criminal justice statistics bulletin, published in November 2018 for the year to June 2018, are:
Figure 6: Change in the average sentence length between 2008 and 2018
Figure 7: Number of community sentences imposed between 2014 and 2018
69.Overall, whilst there has been a fall in the number of individuals being dealt with in the criminal justice system, there is an increasing rate of custodial detention relative to other sentences, increasing sentence lengths and increasing proportion of people being sentenced who have long criminal histories. Transform Justice noted that “the only kind of offence where prison sentences have gone down in length is public order. So, while sentence inflation is not “across the board”, it is pretty widespread and even the ACSL for theft (which includes shoplifting) has gone up by two weeks since 2007.”
70.Our witnesses and the written evidence submitted to us identified a number of reasons, both legislative and non-legislative, for the increase in the prison population. We explore these below.
71.The Secretary of State for Justice recognised in his February 2019 speech that sentence inflation is a significant contributor to the size of the prison population. This was also emphasised by our witnesses, who noted that the greatest growth had occurred for more serious crimes. For example, Crest Advisory observed that between 2006 to 2016, for male offenders, the largest increases in the average prison sentence length were for:
Transform Justice noted that sentences for theft (which includes shoplifting) has gone up by two weeks since 2007 and that public order was the only offence for which prison sentences have gone down.
72.The Sentencing Council identified several legislative changes that led to an increase in sentence length, in particular the Criminal Justice Act 2003. The Council identified that “ … sentences for the vast majority of murder cases increased substantially. A case that may previously have attracted a life sentence with a tariff of 10 years before the change might attract a tariff of double that afterwards.” We heard that this has had a knock-on effect on other sentences, too. The Council suggested that “[w]hen the tariff for the most serious of offences increased so significantly, inevitably over time there has been some recalibration of the sentencing of those offences closest to it in gravity, including manslaughter, for example.” Justice Episteme, a company which provides analytical support to the criminal justice sector, has estimated that the combined measures in this Act and the Offender Rehabilitation Act 2014, increased the prison population by 16,000. Had this not occurred they estimate potential annual savings of £560 million.
73.The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is another example. The legislation aimed to reform how offenders are punished, sentenced and rehabilitated in a way that delivered value for money. The then Government estimated that there would be a net reduction of 2,600 prison places through a combination of tougher sentencing balanced by reforms to remand, recall and foreign national offenders and other policies to divert from custody offenders with mental health problems and potential for longer-term reductions through the abolition of IPPs. This, it was intended, would facilitate cuts to the Ministry of Justice budget which in practice proved challenging to deliver. Rory Stewart referred to this as the ‘Ken Clarke model’, referring to the Secretary of State for Justice at the time. The impact of the sentencing provisions of the Act have not been included in the current post-legislative review so it is not possible to determine the impact they have had on the prison population or wider sentencing trends. Lord McNally, also a Justice Minister at the time the legislation was introduced, recently said that the Bill had been conceived as rehabilitative but had become more punitive as it progressed through Parliament. For example, it introduced a presumption that all community sentences must have an element of punishment. In addition, a key clause related to the release threshold for IPP sentences was never brought into effect. The sentences which replaced IPPs, extended determinate sentences, require prisoners to serve at least two thirds of the term before they can be released.
74.In exploring the question of why the legislative trend was for longer sentences, there was a consensus amongst our witnesses including the Prisons Minister, and Chair of the Sentencing Council, that there is constant pressure from the public, victims, and parliamentarians to increase sentences resulting in an upward drift in sentencing, including for example, introducing minimum sentences, increasing maximum sentences and creating new crimes. Professor Julian V. Roberts, Lyndon Harris and Dr. Jonathan Bild and the Sentencing Council highlighted the large volume of sentencing legislation enacted by Parliament over the past 30 years. The Prisons Minister told us that “Members of Parliament are coming forward with more pressure for new laws and sentences for that, and for things such as attacks on service dogs and attacks on police officers. The pressure for sentences is rising.” On the other hand, the Centre for Crime and Justice Studies listed a number of senior Parliamentarians who had advocated for a reduction in the prison population. The Justice Secretary stressed that he did not wish to reverse tougher legislation for serious crimes, but urged caution in continuing to increase sentence length as a response to concerns over crime. He also believed that there was support in Parliament for a change of approach.
75.The Sentencing Council for England and Wales “is an independent non-departmental public body of the Ministry of Justice and was set up under the Coroners and Justice Act 2009 to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary. The primary role of the Council is to issue guidelines on sentencing, which courts must follow unless it is in the interests of justice not to do so.”
76.We heard that the guidelines issued by the Council may have contributed to sentence inflation. The Council’s evaluations on its earliest guidelines, including assault, burglary and environmental offences, concluded that “… in some areas the guidelines appear to have had an impact on sentencing both in terms of increasing some sentence lengths and decreasing others.” In some cases the guideline had increased sentences more than expected. The former Chair of the Council said “[a]t the top end of our assault guideline, for section 18 offences, sentences have been heavier than we expected. There have been more domestic burglaries falling into the top category than we expected. Those are two examples, but generally sentence outcomes have been within the ranges we expected they would be after our guidelines.” Rob Allen, Independent Researcher and former Director of the International Centre for Prison Studies at King’s College London, did not consider that the Council had done enough to “challenge increasing sentence lengths, nor to give more explicit assistance to courts in determining when offences are so serious that only a prison sentence will do”.
77.The Council gave examples of when it had ensured that the imposition of sentences was in line with statutory requirements. For example, in relation to the custody thresholds in the ‘Imposition’ guideline and the Sentencing Children and Young People guideline. The former states that passing the custody threshold, which the Council notes is not defined, does not mean that a custodial sentence is inevitable. Some witnesses were also of the view that the Council could play a greater role in educating the public on sentencing. It has recently commissioned research on public attitudes to sentencing. We consider further in the final chapter the question of public and political pressure on sentencing.
78.Another element of the Council’s role is to have regard, among other things, to the need to promote public confidence in the criminal justice system and the cost of different sentences and their relative effectiveness in preventing reoffending. A recent independent review of the Council concluded that financial constraints mean that the Council does not have the means to fulfil adequately all its statutory duties and tends to focus on backwards-looking aspects of sentencing i.e. harm and culpability, rather than rehabilitative aspects, for example. Rob Allen recalled that when the Council was conceived one rationale, which was not reflected in legislation, was the potential for sentencing levels to be recalibrated based on effectiveness and cost. He proposed that this be revisited in the light of the prison population crisis, noting that it was explored by a previous Justice Committee. The Council does take note of the scarcity of resources in its guidance to sentencers on access to mental health assessments, for example, but has not adopted a broader approach to considering the availability of drug, alcohol and mental health treatment or prison spaces, for example.
79.Most prisoners will be released on licence before their sentence ends, either automatically or when they receive parole. Prisoners released on licence have to comply with certain conditions and if they break these conditions they can be taken back to prison. The number of recalled offenders in prison has increased substantially, from roughly 150 in 1995 to 6,000 in June 2016. The Ministry attributed this rise to “legislative changes which increased or created licence periods including the Crime and Disorder Act 1998, Criminal Justice Act 2003 and the Offender Rehabilitation Act 2014. Under the latter, for the first time, offenders sentenced to less than 12 months receive statutory supervision in the community and are liable to be recalled.”
80.Recall rates have been affected by the Offender Rehabilitation Act 2014. As of 30 September 2017, 1,088 prisoners were recorded as being in custody following a recall under the Act, representing 18 per cent of the total recall population. Women have been particularly affected by this legislation; their recall rate rose 20% between 2016 and 2017. Sonia Crozer, Executive Director of Probation and Women in HMPPS, attributed this to the fact that women typically receive short custodial sentences. , There is also concern around high recall rates for those serving indeterminate sentences of imprisonment for public protection. The number of IPP prisoners who had been recalled has reached nearly 1,000. As of 30 September 2018, there were 2,598 IPP prisoners in total. HM Inspectorate of Prisons examined this issue in 2015 and found that most recalls were not related to reoffending per se, but rather to ‘risky’ behaviour such as the use of alcohol and drugs. HM Chief Inspector of Probation reviewed recall more broadly and found that 90% of decisions were justified.
81.We heard that there is a balance to be struck in making recall decisions between having levers to ensure that people adhere to the conditions of their release, protecting the public from serious harm, and pressure on the prison population. The Minister explained that recall rates are driven by a strong sense that people should comply with their terms of release. He stated that there had been a time when very little happened when there was non-compliance, which was not desirable. On the other hand, he said that putting someone back in prison for a short period for breaching the terms of their release does not have much impact on their behaviour, but puts a “huge amount of stress on the system”.
82.The Parole Board considered that the volume of recalls being referred to the Board for re-release decisions was worthy of focus, whilst acknowledging that there are situations where recall may be absolutely essential to protect the public from serious harm. They noted that the decision to recall is ultimately a judgement call made by the National Probation Service on behalf of the Secretary of State and no independent body assesses the circumstances leading to this action being taken prior to a prisoner being returned to custody.
83.The Ministry has an action plan to ensure that recall is used only where necessary to protect the public and reinforce the integrity of post-release supervision and that alternatives to recall are pursued wherever possible. In relation to the progress made on this, Ms Crozier explained that there had been a marginal drop in the recall population in the context of an increase in the number of people subject to post-release licences. She saw this as an indication that some of the actions put in place under the plan were working in providing senior probation managers other options to consider such as alternatives or warnings.
84.As set out above, whilst the absolute number of offenders convicted has fallen, sentence lengths have continued to rise and there has been an increase in the proportion of offenders convicted for more serious offences, attracting longer sentences. The Ministry attributes this in part to a more serious mix of offences coming before the courts. While overall crime is falling, Crest Advisory observed that recorded crime statistics show rises in reported violent offences and sexual offences, some of which reflects better recording and reporting, but some of which (e.g. knife crime) reflect an underlying change in crime. Lord Justice Treacy agreed, surmising that “The number of cases being dealt with in the Crown court has fallen since 2010, but there has not been a corresponding fall in the level of the prison population. It has remained broadly stable. That is a very good reflection of the fact that the case mix before the Crown court in particular, which passes the longer sentences, is becoming more serious. Fewer people are being sentenced, but those who are spend more time in custody, so the level of the prison population remains relatively high.” For example, drug offences of supply and importation, which are at the very top end of the range of offences, involve larger quantities and a higher purity of drugs, which lead to higher levels of sentencing.
85.Nevertheless, Transform Justice does not consider that there is firm evidence that the offences which are currently given sentences of imprisonment are in nature more serious than previously. The Crime Survey for England and Wales shows no change in the level of violence although the Office for National Statistics, which publishes the Survey, states that police recorded crime is a better indication of higher-harm but less common types of violence. ONS state that the increase in some types of violent offences recorded by the police is unlikely to indicate real increases in crime, particularly for sexual offences and for violent crime without injury. They note that while weapons offences and homicides are rising, these occur in low volume. The rise in people being sentenced for sexual offences is attributed largely to a rise in reporting of, and prosecutions for, offences, stemming from greater publicity about such offences, including the #Metoo movement.
86.There has been a decline in the number of appeals being made, the reasons for which are unclear. In 2017, 5,411 applications were made to the criminal division of the Court of Appeal, a 6% decrease on the prior year of 5,726. By comparison, in 1995 the number of applications made was 8,187. The rate at which such appeals have been successful has remained broadly consistent. This means that in absolute terms the number of sentences being overturned has fallen. The Centre for Criminal Appeals expressed concern about the referral rate of the Criminal Cases Review Commission (CCRC) to the Court of Appeal, which they cited as having fallen below the historic average. The CCRC’s referral rate for 2017–18 was 1.24% below its long-term referral rate of 2.9%. Transforming Justice raised the broader effect of a decline in appeals, explaining that “[t]he effect of individual successful sentence appeals on the size of the prison population is negligible, but appeals should have an effect of modulating the tariff for all sentences.”
87.The Sentencing Council noted the expansion of the offences eligible for the Unduly Lenient Sentence (ULS) scheme, which allows the Attorney General to refer to the Court of Appeal to reconsider sentences handed down which he or she considers to be unduly lenient. The Sentencing Council said that “ … [t]here is a clear impact on those individual sentences that may be uplifted (press reports cited ‘record numbers’ of sentences increased via the ULS in the last reporting year) but the effect is likely broader than this given that, in appropriate cases, the Court of Appeal may well use a case brought to them under the ULS scheme to set a precedent for future cases.”
88.We raised the issue of the decline in the use of community sentences in our report Transforming Rehabilitation, concluding that sentencer confidence in such disposals was a significant issue. As set out above, the decline of community sentences has continued, with the number falling 6% in the year to June 2018, potentially increasing pressure on the prison population. The nature of the link between the decline in community sentences and the prison population is not clear. Clinks noted that there has been a decline in the use of short prison sentences alongside the decline in the use of community sentences, although at a slower rate, and that the use of suspended sentences, which can result in imprisonment if their conditions are not met, has increased. This may therefore reflect less serious offences being diverted from courts. We consider this further in the following chapter.
89.The latest statistics published on proven reoffending indicate that reoffending rates have remained stable between April 2005 and March 2016, ranging between 29% and 32%. The Ministry of Justice has acknowledged that reoffending is a large source of demand on the criminal justice system, including on the prison population. The Government’s White Paper on Prison Safety and Reform estimated the cost of reoffending by former prisoners to be up to £15 billion a year.
90.As we noted above, several witnesses believed wider social policies could be partially responsible for the fact that prisons are now, as described in the previous chapter, holding people with more complex needs. NHS Treatment Providers Alliance felt that any attempt to address the rising prison population should recognise that “until the social determinates are addressed, it will merely act as a sticking plaster on complex (yet preventable) social problems.” A Clinks survey of voluntary sector organisations working in the criminal justice system found that many organisations think the needs of their service users are becoming “more complex and more immediate”. They explained that changes in other public services “combined with a greater tendency to send people to prison may mean that many people are ending up in prison as a result of the failure of other public services to meet their needs.”
91.The rise in the prison population has resulted from a greater proportion of those convicted being given a custodial sentence and from custodial sentences becoming longer. This has been driven by a complex set of factors, including more minor offending being diverted from the courts. The most significant contributor has been legislative factors created by a series of political and policy choices by successive Governments and parliaments. The fact that a greater proportion of those who are being sentenced by the courts are convicted of violent and sexual offences, who will tend to get longer sentences, contributes to the increase in the size of the prison population. However, this can only partially be attributed to changes in underlying crime patterns and leads us to look at the impact of legislation, the Sentencing Council and the question of how we should be using imprisonment.
92.The extent to which sentencing guidelines have collectively influenced sentencing practice is not clear. We welcome the Sentencing Council’s efforts to predict the impact of changes to the guidelines on Ministry of Justice resources and we consistently note the limitations of these (owing to a lack of data and resources and through no fault of the Council) in the responses we make to the guidelines in our role as a statutory consultee. In making such assessments, the Council needs to have better quality data, which in turn Ministry of Justice needs to resolve as part of its drive for better data. There will be opportunity for the Ministry to collect better data through its court reform programme. The Ministry must also increase the resources it provides to the Sentencing Council to conduct explanatory research on sentencing practice and trends.
93.We welcome the Government’s acknowledgement that there are choices to be made over the future sustainability of the prison population, and to ask questions about how as a society we should use imprisonment. We support the Secretary of State’s commitment to look at the sentencing of both short- and longer-term prisoners. As changes to the prison population have largely stemmed from legislative change, it stands to reason that legislative change should be a primary consideration when examining these choices. In the short-term, we recommend that when changes to sentencing legislation are being debated in Parliament, the Ministry considers what more it might do to make Parliamentarians aware of the likely impact on exceedingly constrained resources. Any strategy for improving the sustainability of the prison population will require a review of sentencing legislation which should include the role of the Sentencing Council. We may return to the question of the role of the Sentencing Council, which is coming up to its 10th anniversary, in a future inquiry.
119 Ministry of Justice, , July 2016
121 Ministry of Justice November 2018
122 Community resolution is an informal non-statutory disposal used for dealing with less serious crime and anti-social behaviour where the offender accepts responsibility. The views of the victim (where there is one) are taken into account in reaching an informal agreement between the parties, which can involve restorative justice techniques.
123 Indictable offences include offences which may only be tried in the Crown court and either way offences which may be tried either in the magistrates’ court (summary trial) or in the Crown Court (trial on Indictment).
124 Offenders with a long criminal career are those with 15 or more previous cautions or convictions.
125 Transform Justice ()
126 Transforming Justice , Page 1
127 Prison Reform Trust (), para 21; Crest Advisory , para 24; Transforming Justice , The Sentencing Council of England and Wales ()
128 Crest Advisory (); See also Transform Justice ()
129 Sentencing Council of England and Wales , para 12
130 Sentencing Council of England and Wales , para 13; See also Professor Julian V. Roberts, Lyndon Harris and Dr. Jonathan Bild () and [Harvey Redgrave]
131 Prison Reform Trust ()
132 Ministry of Justice, , MoJ 119, November 2011, page 17
133 [R Stewart]
134 , The Guardian, 30 January 2019
137 Professor Julian V. Roberts, Lyndon Harris and Dr. Jonathan Bild ) catalogued legislative changes that are likely to have had an inflationary effect.
139 Centre for Crime and Justice Studies ()
140 Ministry of Justice, , 18 February 2019
141 Sentencing Council of England and Wales
142 Sentencing Council of England and Wales , para 44. The Council stated that ‘It is important to be clear that this analysis is still not able fully to isolate the effect of other, non-guideline, related factors on the prison population’.
143 Section 18 offences are otherwise known as Grievous Bodily Harm (GBH). Under UK law, section 18 assault is the most serious form of assault that can be committed.
144 Rob Allen , para 10
145 Rob Allen ()
147 , Section 120(11)
148 Rob Allen ().
149 Justice Committee, First Report of Session 2009–10, , HC94-I, January 2010. A previous Justice Committee examined the desirability of linking guidelines to resources.
150 ; ; See also
151 If an offender is sentenced to a community order or suspended sentence and breach the conditions of those orders they may also be subject to a custodial sentence.
152 Ministry of Justice (), para 13
153 Ministry of Justice (), para 13
154 The Howard League for Penal Reform ()
155 See also Criminal Justice Alliance
158 Dr Harry Annison (), para 12
159 Ministry of Justice, , October 2018, page 4;
160 HM Inspectorate of Prisons, , November 2016
161 [Rory Stewart MP]
163 The Parole Board
164 The Parole Board
165 Letter from Sam Gyimah, Former Parliamentary Under-Secretary of State for Justice to Chair, Justice Committee, , 20 November 2017
167 Crest Advisory
168 . See also the Minister’s comments in
170 Transform Justice ()
172 Ministry of Justice, , June 2018
174 Centre for Criminal Appeals (), para 15
175 Criminal Cases Review Commission, , HC1083, July 2018, page 19
176 Transforming Justice (), para 4
177 Sentencing Council (), para 26
178 , page 50
179 Clinks , para 21.
180 Ministry of Justice, , October 2018
181 Ministry of Justice ()
182 Ministry of Justice, Prison Safety and Reform, , November 2016, page 5
183 ); INQUEST ()
184 NHS Substance Misuse Providers Alliance ()
185 Clinks ()
Published: 3 April 2019