The Future Of Sentencing – Blog By Lucie Taylor

Published on 15/03/2021

A Smarter Approach to Sentencing’ or a return to ‘prison works’? The Future of Sentencing

Michael Howard’s first articulation of the notion that ‘prison works’ in 1993 has been dubbed as demonstrative of ‘a perceptible shift in emphasis in favour of a tougher, more populist policy.’[1] What followed was a doubling of the prison population from approximately 42,000 in 1993 to almost 85,000 in 2010 and a 45% fall in the rate of crime over the same period. The extent of the correlation between these statistics was and continue to be debated by politicians and criminologists alike. A Pandora’s Box of theories to be left firmly untouched by this article. Robert Buckland, speaking in the House of Commons in September 2020, announced an overhaul of sentencing laws contained within the White Paper ‘A Smarter Approach to Sentencing.’

Mr Buckland was clear the new measures announced would ‘keep offenders who pose a risk to the public off our streets for longer’ thereby ‘restoring public confidence that robust sentences are executed in a way that better reflects the gravity of the crimes committed [2].’ Is this an indication of a shift in government attitude to criminal justice soon to infiltrate the courts? Are we soon to see exponential growth in the imposition of custodial sentences or will this be reserved to the most serious of crimes?

What truly is the populist view?

The Paper makes a clear distinction been ‘serious’ and ‘low level’ offenders and acknowledges that custodial sentences are not the only way a sentencing regime can ensure public protection. The Paper specifically addressed community disposals and includes a whole chapter entitled ‘Empowering Probation’. However, the clear message in respect of ‘serious’ offenders is that they should be spending longer in prison. Some of the measures proposed were moving the automatic release point from halfway to two-thirds for certain offenders, extending the criteria for the imposition of Whole Life Orders and the introduction of powers to halt automatic release of offenders posing a danger to the public. The need for public protection is repeatedly emphasised.

Protection of the public is again mentioned, this time alongside the need for effective rehabilitation in the context of community-based sentences. An increase in the use of Community Sentence Treatment Requirements is discussed together with the desirability of deferred sentences for vulnerable individuals. The well-known relationship between vulnerabilities such as mental health deterioration and offending is acknowledged together with the need for sentences which effectively manage and address an offender’s particular vulnerability.

The role played by the National Probation Service in delivering community-based sentences nationwide is discussed and an increase in the powers and resources of probation officers is identified as necessary to ensure effectiveness. The overarching need for ‘tailored interventions’, facilitated by the collaboration of multiple agencies including the probation service is recognition of the complexity behind much offending behaviour. However, despite these complexities being far from absent in the most serious of offenders, it is not clear how or indeed if these are to be increased within the context of increased time spent in custody.

The Prison Reform Trust (PRT) in their critique of the Paper in December 2020 [3] welcomes the proposed treatment of less serious offending. There is certainly a recognition that time in custody is often not effective in preventing reoffending. This is evidenced daily in the criminal courts when lengthy lists of previous custodial sentences are read aloud like shopping lists. However, by contrast, the PRT describes that ‘the sections of the White Paper dealing with the treatment of more serious offending appear to have been written a completely different author.’ There certainly appears to be a start contrast between the two. Is the suggestion that those who commit the most serious crimes are not capable of rehabilitation, regardless of the circumstances which lead to their offending? If so, where does one draw that arbitrary line?

Many of the proposals relating to less serious offending require resources and government funding. In the economic aftermath of the Covid-19 pandemic, is continued funding at the level required likely to be forthcoming? If the only discernible movement is in the treatment of the most serious offenders, is it a matter of time before that approach filters through the entirety of the sentencing regime?

The final question is one of popular opinion and how this will shape the future of sentencing. This remains to be seen but there are perhaps indicators to be found in the reaction to recent events. This week marks the immediate aftermath of Sarah Everard’s disappearance and death. The initial narrative of sadness quickly turned into calls for far tougher judicial treatment of individuals who commit crimes against women. These calls related not just to the most serious of crimes such as rape but also to harassment and stalking, offences which at present can attract the lowest level of sentence. Is this, perhaps, a sign of change to come?

Lucie Taylor

12CP Barristers

[1] Garland D, (2001) The Culture of Crime Control: Crime and Social Order in Contemporary Society, Oxford University Press. P113