Gauke holds the key

Can a former justice secretary solve the prison crisis?

David Gauke’s appointment to head the government’s sentencing review was heavily trailed and comes as no surprise. But it’s not often that a Labour lord chancellor appoints a former Conservative predecessor to advise her on such a sensitive issue. The irony is that Gauke’s proposed reforms are more likely to be adopted now than when he first recommended them.

According to the Ministry of Justice, “the review will examine the tough alternatives to custody, such as using technology to place criminals in a ‘prison outside prison’.”

The justice secretary Shabana Mahmood told The Times that this would be “like a modern version of house arrest”.

She explained:

People have a tag, sensors in the home, we can track their movements. I think that’s a really effective sort of method that we have available to us. A prison environment, but outside of prison, is essentially what you’re seeking to recreate. I think that home detention curfew has a bigger role to play.

Home detention curfew currently allows for the early release of offenders serving sentences of imprisonment of at least 12 weeks.¹ Those released can be ordered to remain at home from, say, 7pm to 7am — effectively placing them under house arrest.

Mahmood suggested to The Times that a restriction of this sort could replace prison sentences for some offenders, meaning that courts would order home detention at the outset.

“I’m interested in what punishment outside of a prison looks like,” she told The Times. “It still has to be punishment: they still have to have their liberty curtailed. People have to know and believe there are consequences to breaking our laws.”

The Telegraph reports that Mahmood is expected to announce an immediate expansion of home detention curfew from six to 12 months. This would mean a prisoner could be released a quarter of the way through a sentence to serve up to a year of their remaining time tagged at home rather than in jail.

Does prison work?

Announcing her review at the same time as she is releasing more than 1,100 prisoners early, Mahmood said:

I believe in punishment. I believe in prison, but I also believe that we must increase the range of punishments we use. And that those prisoners who earn the right to turn their lives around should be encouraged to do so.

The sentencing review will make sure prison and punishment work — and that there is always a cell waiting for dangerous offenders.

But Gauke, who was justice secretary from January 2018 to July 2019, said:

Clearly, our prisons are not working. The prison population is increasing by around 4,500 every year, and nearly 90% of those sentenced to custody are reoffenders.

This review will explore what punishment and rehabilitation should look like in the 21st century and how we can move our justice system out of crisis and towards a long-term, sustainable future.

Long-term solutions

The Ministry of Justice said Gauke’s review would provide long-term solutions by:

• examining the use and composition of non-custodial sentences, including robust community alternatives to prison and the use of fines;

• looking at the role of incentives in sentence management and the powers of the probation service in the administration of sentences in the community;

• exploring the use and impact of short custodial sentences;

• reviewing the framework around longer custodial sentences, including the use of minimum sentences, and the range of sentences and maximum penalties available for different offences;

• looking at the administration of sentences, including the point at which offenders are released from prison, how long they are supervised in the community on licence, recall to prison and how technology can support this;

• considering whether the sentencing framework should be amended to take into account the specific needs or vulnerabilities of specific cohorts such as young adult offenders, older offenders, and women;

• considering the approach to sentencing in cases of prolific offenders; and

• considering specifically sentencing for offences primarily committed against women and girls.

Excluded from the terms of reference are:

• the sentence of imprisonment for public protection;

• the use of remand;

• the youth sentencing framework;

• wholesale reform of the murder sentencing framework; and

• out-of-court resolutions.

The terms of reference refer to an “independent chair and panel” but its members have not yet been named.

Backstory

As I reported earlier this month, Gauke launched what he hoped would be a national debate about punishment in February 2019.

He said then:

In the last five years, just over a quarter of a million custodial sentences have been given to offenders for six months or less; over 300,000 sentences were for 12 months or less.

But nearly two-thirds of those offenders go on to commit a further crime within a year of being released. Twenty-seven per cent of all reoffending is committed by people who have served short sentences of 12 months or less.

For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working.

The most common offence for which offenders are sentenced to less six months — some 11,500 offenders — is shoplifting. We know that offenders who commit this kind of crime often have drug or alcohol problems, and many are women. Almost half of women sentenced to a short custodial sentence are there for shop theft.

The impact of short custodial sentences on women generally is particularly significant. Many are victims, as well as offenders, with almost 60% reporting experience of domestic abuse and many have mental health issues.

For women, going into custody often causes huge disruption to the lives of their families, especially dependent children, increasing the risk they will also fall into offending.

And for many offenders, both men and women, who may not have a stable job or home, and who are likely to have alcohol or drug problems, a short stay in prison can result in them losing access to benefits and drug or alcohol support services and treatment. Coming out of prison, they find themselves back at the start of the process and feeling like they have even less to lose.

That’s why there is a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place a robust community order regime.

“Offenders are less likely to reoffend if they are given a community order,” he added. These orders were much more effective at tackling the root causes of criminality. But if a shift from from prison to community sentences was to be successful, it had to command the confidence of the courts and the public.

“I believe in the end there is a strong case for switching resource away from ineffective prison sentences and into probation,” Gauke concluded in 2019. “This is more likely to reduce reoffending and, ultimately, reduce pressures on our criminal justice system.”

Reaction

Andrea Coomber KC (hon), chief executive of the Howard League for Penal Reform, said yesterday:

The trend of imposing ever longer sentences has brought the criminal justice system to the brink. An independent review presents a once-in-a-generation opportunity to deliver a more humane and effective response to crime and a lasting solution to the capacity crisis in prisons.

Sam Townend KC, chair of the Bar Council, said:

One of the real drags on seeking to get the Crown Court backlogs down has been the mismatch of ever heavier prison sentences with inadequate prison places. Addressing sentences and the capacity of prisons is a necessary prerequisite to turning around the criminal justice system.

Mahmood’s announcement was also welcomed by the Law Society. Richard Atkinson, the solicitors’ leader, said:

It is high time for an examination of alternatives to the use of custody, which is an expensive and often counterproductive form of punishment. However, prison overcrowding is just one part of the wider crisis. For the government’s plans to work, the whole criminal justice system needs to be appropriately funded, including defence solicitors.

Chalk and Gauke

Gauke is not the only former Conservative lord chancellor to have suggested ways of reducing the prison population. Alex Chalk KC, Mahmood’s immediate predecessor, put forward a five-point plan in the Telegraph last week.

1. Resist Treasury cuts: the Ministry of Justice has a relatively tiny budget and it needs cash to recruit and retain prison and probation officers.

2. Withdraw the right to jury trial in some cases: “it’s no longer reasonable, for example, that someone accused of possession of codeine, a class C drug, has the unfettered right to refuse trial in the magistrates’ court and instead choose a lengthy trial by jury, at vast additional cost in time, money and prison capacity. Ditto a shoplifter facing his tenth allegation of theft of toiletries worth £50, or the prisoner accused of scratching a police officer on arrest.”

3. Create an intermediate non-jury court: “comprising a judge and two lay magistrates rather than a full jury, it would hear cases too serious for the magistrates’ court but where the maximum sentence is two years’ imprisonment — like assault with intent to resist arrest, or racially aggravated criminal damage.

4. Allow the full discount for guilty pleas at the Crown Court: offenders are allowed one-third off their sentence only if they plead guilty at the first stage of the proceedings. A plea of guilty on the first day of a jury trial will attract a reduction of as little as one-tenth. Giving judges a discretion to allow the maximum discount when it is fair to do so would encourage more guilty defendants to do the decent thing and plead guilty.

5. Introduce new technology: “vastly improved tagging tech enables real-time trail monitoring to ensure that tough community work can be enforced for non-dangerous offenders, with strict curfews and robust rehabilitation requirements.”

Comment

Gauke’s suggestion in 2019 that short sentences should be replaced by tough community punishments has clearly found favour with the present government. He believed we were “nearing a time when a combination of technology and radical thinking will make it possible for much more intensive and restrictive conditions to be applied in more creative and fundamental ways outside of prison” — and that was five years ago.

Tagging technology has improved from the days when it relied on offenders having a landline phone — and a home to keep it in. But proper support for offenders and enforcement of community sentences still depend on having well-trained probation officers — and they need to be paid.

We can only hope that Mahmood’s department does not fare too badly in next week’s budget. But that’s one of the reasons for the sentencing review: community punishments — even with ankle tags and “nudge” watches — are much cheaper than prisons.

Removing the right to jury trial for less serious cases has been suggested by no less a person than the lady chief justice of England and Wales. But that idea — and Sir Robin Auld’s recommendation in 2001 of a unified criminal court consisting of three divisions — has never found favour with ministers. Both these suggestions are controversial and are unlikely to be accepted without much stronger support than Gauke will be able to provide.

In my view, a defendant who pleads guilty on the first day of a trial should not receive the same discount as someone who pleads guilty before prosecution and defence lawyers have prepared for a contested hearing and witnesses have made arrangements to attend court.

But there may be an argument for allowing a greater discount than the guidelines currently suggest. Incentives in sentence management is one of the topics that Gauke will examine.

Early release

Today’s announcement is timed to draw attention from from the second phase of the government’s early release provisions. But Mahmood should not be blamed for a short-term fix that was clearly inevitable.

We can now better understand a crucial passage in the Labour party’s election manifesto:

We will no longer tolerate the violence against women and girls that stains our society. And we will reform the justice system to put the needs of victims first, tackle the prisons crisis and cut reoffending.

The second sentence in that extract was meant to sound tough, to give the impression that sentences would be going up. In practice, it meant the opposite — even though Gauke has now been told to consider “whether current sentencing for crimes committed against women and girls fits the severity of the act”.

Increasing magistrates’ powers

Last Thursday, Mahmood told MPs why she would be restoring the power of magistrates to pass sentences of up to 12 months’ imprisonment.

She said:

Because of the historical backlog in our Crown Courts… the remand population in prisons has soared. Today, it stands at a record 17,000, which is nearly one in every five prisoners.

As some members will know, remand prisoners are an especially acute problem as they are placed in so-called reception or category B prisons. Until they are tried and sentenced, they cannot be moved elsewhere in the estate.

It is in our reception prisons that we face the most acute capacity pressure in the country. Unless we address our remand population, we could still see a collapse of the system, not because of a lack of cells, but because we do not have those cells in the places we need them…

This measure will, in total, see a slight increase in the overall prison population, but by bearing down on the remand population in our reception prisons, we will create capacity where we need it most.

Yesterday, Mary Prior KC, chair of the Criminal Bar Association, pointed to inconsistencies between that policy and today’s announcement:

Criminal barristers have read with disbelief and sadness another headline- grabbing, knee-jerk “solution” to the crisis in the criminal justice system. From mid-November, magistrates will be able to sentence offenders for a single either-way offence (one where the defendant can elect trial by jury) to a maximum of 12 months’ imprisonment. The previous maximum was six months.

Bear in mind that 12 months does not mean 12 months. Now — even without any credit for a guilty plea — it means 20 weeks’ imprisonment and the rest on licence, supervised by an already overstretched probation service whose numbers cannot increase sufficiently quickly to manage all these extra people.

Sentences of 12 months and under usually apply in cases of theft, possession of drugs, driving offences and minor public order offences where violence is threatened, not used.

The Ministry of Justice are trumpeting this “solution” as a means to enable victims to get swifter justice. They fail to mention that this scheme has already been tried and failed.

Why? Well we know from statistical research that short sentences of imprisonment do not work. They fill up the already full prisons with short-term prisoners who can receive no rehabilitation work and who are released without a place to live, a job to go to or any skills to change their habits.

The rate of re-offending following short prison sentences is over 58%. The rate of re-offending if community orders are imposed is about 24%. The cost of imprisoning each of these offenders is about £26,000. “Swifter justice” is not in the public interest if it leads to further re-offending.

Justice delayed

Also in the Commons last Thursday, the justice secretary explained — for the first time, I think — how the current cap on sitting days in the Crown Court had been set. As I observed earlier this month, this is a topic that is little reported and little understood.

Every year, said Mahmood, “the government and the judiciary agree a number of sitting days, and an overall budget to fund those sitting days, in what is known as the concordat process. In June, the judiciary reached an agreement with the former lord chancellor to sit 106,000 days in the Crown Court.”

That was less than a week before the general election. Since then, she added, the Labour government had increased the number of sitting days by 500. But that did not mean, as had been reported, that 5,000 sitting days were being cancelled. The justice secretary understood the true number to be more like 1,600 sitting days.

“Although misleading reports have abounded,” Mahmood said, “one thing is clear: the concordat process has not worked as it should.”

It was not clear what she meant by that. Were the judges complaining about something they had agreed to? Or had they been left with no choice? Mahmood seemed to be blaming judges or the court service for “over-listing against that budget, with more trials scheduled than the funding allowed for”. As a result, she said, some cases had had to be delisted.

In a letter sent yesterday to criminal barristers, the bar chairman and other bar leaders said they had been given similar figures:

A total of around 1,660 sitting days which might have been devoted to trials which have been already listed and other work are to be cancelled in the period to end of March 2025.

We are told that these adjustments are to ensure that HM Courts and Tribunals Service remains within the funding allocated to it. We have not been told how many trials will need to be postponed and which court centres will be affected…

Each lost sitting day represents a reduction in the capacity of the Crown Courts to bear down on the record high case backlog. A worse impact is obviously felt for complainants/victims, their families and of course defendants, as well as barristers and other legal professionals, in relation to the approximately 1,660 sitting days which can now not be used to hear already listed trials which will need to be postponed…

We have been arguing with the government, and continue to argue, that among other matters the forthcoming budget and then the spending review should make provision for the equivalent of uncapped sitting days (being the maximum sitting days that the court estate and judicial capacity permit).

It is impossible to see how this cannot be part of what is needed to achieve the prime minister’s stated objective of “swift justice”.

Let’s hope that Gauke’s proposals obviate the need for delayed justice. He is expected to report in the spring.

1. An earlier version of this paragraph referred to an upper limit of four years, as currently indicated on the Ministry of Justice website. Paragraph 4.1.1 of the revised policy framework issued on 17 June confirms that this upper limit has been removed by the Victims and Prisoners Act 2024.

I am grateful to Mark Leech for pointing this out.