The Sentencing Council should be doing more to tackle the crisis in our prisons

Photo by Andy Aitchison (www.prisonimage.org)

It’s almost ten years since the idea of a permanent Sentencing Commission was first proposed as a way of helping to ease the seemingly perpetual prisons crisis in England and Wales. A new report from Transform Justice argues that what became the Sentencing Council for England and Wales has done much less than it should have to control prison numbers and needs urgent reform (download here).

Prisons in England and Wales are currently of course under enormous pressure. Last month the Lord Chief Justice described them as overstretched and the head of NOMS revealed that a quarter of prisoners are held in accommodation that was designed for fewer people than are in it—a situation that won’t be solved in this parliament or the next.

Back in 2007, new Labour’s policy trouble-shooter Lord Carter of Coles proposed that an efficient and sustainable use of custody requires a way of keeping the demand for prison places in line with their supply. Judges and Parliament were alarmed that over prescriptive guidelines might threaten judicial discretion, particularly if they were produced in order to keep prison numbers in check. So, by the time the Council started work in 2010, its remit had been limited to promoting greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary. Still, the Council has been required to take the cost and effectiveness of different sentences into account when setting the going rate for different offences, so there was hope that its guidelines might curb the unnecessary and unproductive use of prison.

Guidelines require courts to take a step by step approach to sentencing, starting at the same point, and taking into account the same kinds of factors in assessing the seriousness of a particular offence. Despite initial reluctance on the part of judges and magistrates, guidelines are now widely accepted –unsurprisingly given the considerable range of discretion that still exists, and the courts’ ability to sentence outside the guidelines if it is in the interest of justice to do so. But what about their impact on prison? Some have suggested that guidelines have contributed to sentence inflation by restricting chances for serious offenders to undertake community penalties and by reducing the weight attached to personal mitigation.

In fact, prison numbers overall have been fairly stable over the last six years, but this is mainly due to large falls in the numbers appearing in court. Those that do are more likely to go to prison, and to stay there longer. Since 2010, 25% fewer people have been sentenced by the courts for serious offences. The proportion of these offenders imprisoned rose from 22.5% to 27.2%. The average length of their sentences went up too, from 16.2 months to 19 months. Sentences have got longer for violent, sexual, theft and drug offences on all of which the Council has produced guidelines.

Guidelines have almost always sought to reflect the existing practice of the courts, rather than reset sentencing levels based on cost effectiveness. However, in the case of assaults and burglary (the guidelines whose impact the Council has evaluated) lengths of prison terms have risen a good deal more than anticipated. This may not have been solely a result of the guidelines, but the key question remains: has the Council done enough to challenge increasing lengths of prison sentences, or to give explicit assistance to courts in deciding when offences are so serious that only prison will do?

The Transform Justice report finds that while the Council may have helped to make sentencing more transparent, consistent and proportionate, it has neglected its potential to curb the ineffective use of imprisonment, adopting too narrow a focus to its work. The report recommends that both the membership of the Council, and its range of responsibilities, are widened.

On the one hand, it could use its current remit to issue guidelines on a wider range of common issues facing sentencers, such as the weight to be attached to previous convictions, and the challenges involved in sentencing women, young adults or people with mental health problems.   On the other, its mandate could be extended so that it advises more broadly on sentencing policy, projects prison numbers, and uses its guidelines to keep them in line with available prison places.

In the late 2000’s the government backtracked on explicitly linking sentencing levels with available resources, but now could be the time to revisit the issue. Prisons are in crisis now as then, and the increasing length of sentences is one of the causes. As Lord Woolf told the House of Lords last week: ‘With the situation in our prisons today, we cannot afford to have further sentencing inflation.’ The Sentencing Council could play a much greater role in ensuring we don’t.