LCJs unite on prisons
Four former chief justices say we must let more prisoners out early
Four former chief justices of England and Wales and a former head of criminal justice have called on the government to initiate a planned release of selected prisoners who are seen as having been punished enough.
Lord Woolf CH, Lord Phillips of Worth Matravers KG, Lord Thomas of Cwmgiedd, Lord Burnett of Maldon and Sir Brian Leveson say that, during the half-century they have been involved in the law, prison sentences have approximately doubled in length and so have prison numbers.1
That “sentence inflation” cannot be justified, they argue. Instead, we should be exploring “accelerated routes out of custody”.
These might include:
Urgent and decisive action to safely release all prisoners serving indeterminate sentences for public protection who are over-tariff, with suitable support in the community upon release.
Reviewing the sentences of all prisoners serving longer than 10 years at the half-way stage and then at regular intervals, resulting in earlier release on licence or sentence reduction.
Reviewing the needs and risk levels of older prisoners who have reached a specified age, followed by a managed move to a more appropriate secure location if required. Those who are very elderly, dying or suffering dementia should be removed from prison.
Reinstating release at the halfway point for prisoners who must currently serve two-thirds of their sentences.
Regular sentence reviews or parole for offenders whose main offence was committed before they turned 25.
Regular reviews of minimum terms for people serving indefinite sentences.
More places in open prisons to facilitate return to work, education and family community for those serving long sentences.
Allowing prisoners serving life sentences to apply for a move to open conditions more than three years before their potential release.
The former judges’ recommendations are made in a paper called Sentence inflation: a judicial critique, published today by the Howard League for Penal Reform.2 It coincides with a disturbing BBC report from inside an inner-city prison.
Andrea Coomber KC (hon), chief executive of the Howard League, said:
It is extremely rare for our most senior former judges to come together to recommend action on a specific issue of public concern.
With decades between them at the coalface of criminal justice and sentencing, their analysis is essential. It indicates how serious the prisons crisis, and the sentence inflation that caused it, have become.
The former judges point out that the decision by the last Labour government to raise the statutory starting points for the minimum term that judges must set in murder cases has not only driven up sentences for other offences but pushed England and Wales out of line with the rest of the United Kingdom:
For example, life sentences with a minimum term of over 30 years are very rare in Scotland and are unheard of in Northern Ireland. Our friends in the law in other parts of the kingdom follow with some concern the frequency with which extremely lengthy sentences are imposed by our courts.
The report’s authors welcome the review of sentencing promised in Labour’s election manifesto but accept that reversing the current trend of sentence inflation will not be easy. “The public will need to be persuaded of the benefits of doing this,” they say, “but the benefits are very much in the public’s interest.”
In response, the Ministry of Justice said it would launch a comprehensive review of sentencing alongside a 10-year strategy on prison supply by the end of this year.
Above all, the four surviving former lords chief justices of England and Wales and the only surviving president of the Queen’s Bench division who also served as head of criminal justice argue that imprisoning more people for longer is something that we simply cannot afford.
“The country’s limited resources should be spent in areas that produce a positive benefit,” they say. “In the case of crime, they should be spent on keeping people out of prison rather than locking them up for ever longer for no gain.”
Funding cut
Meanwhile, research commissioned by the Bar Council has found that public funding for justice in England and Wales has fallen by more than a fifth over the 13 years to 2022.
The report’s authors, Professor Martin Chalkley and Alice Chalkley, conclude:
By any measure there has been a very substantial reduction in the public funding of justice in England and Wales. That can be expected to have had a substantial impact on both the volume and quality of service that the system delivers.
Their key findings are:
Public funding for justice in England and Wales declined by 22.4% in real per person terms from 2009/10 to 2022/23
Over this period the UK economy grew by 11.5% and overall government spending increase ed by 10.1% in real per person terms
Funding for justice is 30.4% below where it would be if it had kept pace with UK inflation, population growth and the economy
Funding for justice in 2022/23 was £181 per person – around 0.5% of GDP; it was less than the spend on defence (£820 per person), education (£1,550 per person) or transport (£640 per person). It is on a par with spending on overseas aid
In order for justice spending to have been constant in real per person terms, an additional £2bn would have been needed to be spent in 2022/23. Within this period, total government spending was £1,154.9bn
For justice to have kept pace with the economy, an additional £3.5bn would have needed to be spent in 2022/23.
The barristers’ leader Sam Townend KC commented:
We know the scale of the problem and that, without a change in direction, things will only get worse. With the spending review coming up we are asking the government to rethink the approach to justice spending. The system needs investment now and a restoration of funding for long term sustainability.
What will ministers do?
My latest column for the Law Society Gazette — written before either of these reports reached me — brings their two themes together: if the Ministry of Justice can cut spending on prisons then it can spend more on courts. It starts with an “I told you so” from 2010, when the current funding crisis began, and includes my own modest suggestion for reform.
The number of people in prison has risen from about 40,000 in 1991, the year in which Lord Woolf report into the Strangeways riot was published, to more than 88,000 today.
With the support of Mishcon de Reya.
Where to start? I suppose by remarking that I find Robert Zara’s -certainly- “radical” , if tentative, proposal seductive. So very many of us, notably Joshua for one, have been going on-and on!- along strikingly similar lines to these esteemed former Judges for DECADES. As a very senior figure long ago demanded to know:”If not now, then when?”. Andrea Comber and the Howard League are to be commended, as are Mischon de Reya for their sponsorship. And how right and important it is to include the significant point that, lamentably, this has for so long ceased to be a drive towards ever longer incarceration on the part merely of Conservative or coalition governments.
As to the -frankly dangerous- underfunding of legally aided advocacy and practitioner services, as Pauli Murray had it :”Hope is a song from a [decidedly!!!] weary throat.” And again the finger needs in all stark fairness to pointed at all governments of whichever complexion also these several decades. Again,”If not now……?”
Thank you!