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31 October 2023

Prison sentencing: a new approach from the Lord Chancellor?

7 mins

The prison population is double the level it was in the 1990s. This isn’t because we live in a more dangerous society but because successive governments have courted voters by being ‘tough on crime’.

Sentences have increased, new criminal offences have been created, ancillary orders have criminal penalties when breached and defendants are spending longer on remand due to delays in the criminal justice system. Such delays are not purely due to Covid or strikes (as some commentators want us to believe) but because of chronic under funding, decade after decade, which has seen court closures, a shortage of Judges and barristers, and drastic cuts to both Crown Prosecution Service (CPS) and defence legal aid budgets. When this is coupled with austerity measures which saw so many community support projects having their funding withdrawn and the probation service decimated by ill thought-out attempted privatisation, it is no wonder that the prison estate is overwhelmed. Studies have repeatedly shown that those incarcerated, rather than those who are supported in the community after a conviction, are more likely to re-offend.

The Lord Chancellor, Alex Chalk KC MP, garnered a lot of publicity on 16 October when he announced his plans to try and reduce chronic overcrowding in prisons by allowing non-violent offenders to be released early.

He stated: ‘We must reform the justice system so it keeps the worst of society behind bars, rehabilitates offenders who will be let out, and gives the least serious, lowest risk offenders a path away from a life of crime. And that matters because intelligent reform means less crime.’

This is a welcome change in tone, but how will it be achieved and isn’t it too little too late? In fact, David Gauke MP, ex-Lord Chancellor, and Rory Stewart MP, Minister for Prisons, both presented a comprehensive review of sentencing in 2019 with similar measures. This was too politically contentious to be adopted by Theresa May’s Conservative Government and was shelved.

It is no surprise that the prison estate is suffering from even worse overcrowding as it rises year on year. On Saturday, Max Hill KC, the Director of Public Prosecutions (DPP), who is soon ending his five-year tenure, spoke on Radio 4 despairing of the delays in the Criminal Justice Funding and the 65,000 cases awaiting trial in the Crown Court. He complained that the CPS was struggling to find enough barristers ‘physically available’ to prosecute trials and had little optimism that this would be resolved in the near future.

It is notable that the Lord Chancellor’s announcement was not accompanied by any additional funding for the CPS or the defence legal aid budget or new funding for existing probation workloads, community projects or the courts, or any measures to reduce the court backlog. The only new funding announced was for additional prison places ‘for 800 new cells’ and for the probation service to oversee ‘early release’. However, some new short-term proposals were announced but whether or not they have a significant impact on the current prison numbers is questionable.

The proposals:

The powers under s248 of the Criminal Justice Act 2003 (CJA 2003) will be used, for a limited period and in target areas, to allow lower-level offenders to be released 18 days early.

Those convicted of serious violent or sexual offences or terrorism will be excluded from this scheme. In fact, legislation is being introduced that those convicted of rape will serve the entire term of their prison sentence as opposed to half or two-thirds which is currently the case. This is likely to put far more pressure on the prison system when introduced as it will add years onto a sentence. Rape convictions are increasing year on year.

Those released early will have to wear an electronic tag and will have conditions imposed on their release. The probation service will be responsible for overseeing this. New funding has been announced to support this, but will this new funding also be available for more community penalties and better supervision in the community as part of a sentence and also once released from prison?

Legislation will be introduced for a presumption that custodial sentences of less than 12 months will be suspended meaning offenders will be punished in the community instead. This is a welcome change as currently suspended sentences require an exceptional element. The current Lord Chancellor has recognised the harm that short term sentences cause and that they do little to protect the public, when 50% of those who leave prison having served less than 12 months go on to re-offend, as opposed to only 22% of those on suspended sentences with conditions.

In practice, courts are currently reluctant to sentence individuals to short term sentences as they are fully aware of the overcrowding problems (see the recent Bernie Ecclestone fraud case where he admitted failing to declare £400m in a trust to HMRC and received a two year suspended sentence of 17 months) and, although the presumption to suspend sentences of under 12 months is a positive development, it may not have a significant impact on the prison population. The biggest burden is longer sentences for violent and sexual offences and more individuals on remand waiting for trial.

Foreign nationals will be removed up to 18 months before they are due to be released (it is currently 12 months). Presumably this requires international agreement and reciprocity, and will therefore do little to actually reduce the prison population. It also requires the Home Office to be more efficient. They currently have an unedifying backlog on their current workload, apparently being incapable of efficiently processing immigration and asylum claims or IPPs, so fundamental reform within that department will be required.

Consideration will be given to extending the discount for an early guilty plea to encourage defendants to plead guilty early. At the moment, defendants will be given a one third reduction from their sentence for a guilty plea at the first opportunity. This all sounds well and good but legislators are not aware of what happens in reality at a first appearance which is the first opportunity. A defendant may only have notice of the charges and a broad summary of the case at this first appearance. The summary may not always be accurate, but will generally reflect the prosecution case at its highest. The charges may not have been properly reviewed and may well be reduced at a later stage. A defendant may not understand that they have a defence (such as self-defence).

A criminal conviction can be life changing and not just in terms of possible deprivation of liberty but also loss of employment, profession, home, family, reputation, and ability to travel. A defendant needs time, careful consideration of the evidence and good quality advice before deciding on any plea. If large incentives are given to early guilty pleas, there is a risk that, especially for those who are unrepresented, defendants plead guilty when they have not committed the act, or the evidence does not exist to convict them. The burden is on the prosecution to prove the case against a defendant, and this can be lost when so much pressure is placed on individuals to plead guilty early in proceedings.

In short, the announcement of the Lord Chancellor is welcome in terms of a change in tone as he is one of the very few MPs in this current Government who is trying to engage with the overcrowding in prisons (probably spurred on by the high-profile escape of a prisoner in Wandsworth HMP accused of terrorist offences, and the German Government’s refusal to extradite to the UK due to concerns that UK prisons are not complying with International Human Rights standards) but it is little more than a sticking plaster to fill the gaping wound in the criminal justice system caused by repeated chronic underfunding, while prison sentences are longer and more criminal offences are introduced. The consequences are inevitable.

The Lord Chancellor, Alex Chalk KC MP’s full announcement can be found here:

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