Spotlight on sentencing

Letting out some prisoners in England and Wales after they have served just 40 per cent of their sentences has given the government a few months’ breathing space. But the long-term solution to the prisons crisis in England and Wales depends on a review of sentencing policy that the Ministry of Justice will announce in the coming weeks.

To find out what reforms it might recommend, I have been talking to Andrea Coomber KC (hon), who as chief executive of the Howard League for Penal Reform is one of the UK’s best informed commentators on prisons and sentencing.

The Howard League, founded in 1866, is the world’s oldest prison charity. It supported an important report last month in which — as I reported at the time — four former chief justices of England and Wales and a former head of criminal justice called on the government to initiate a planned release of selected prisoners.

“Over the half-century that we have been involved in the law,” the former judges wrote, “custodial sentence lengths have approximately doubled and the same is true of prison numbers.” As well as offering some remedies, their report looks at the causes of what they call “sentence inflation”.

One that they identify is schedule 21 of the Criminal Justice Act 2003, which greatly increased the minimum terms that murderers in England and Wales must serve before being considered for release. For an offender aged 18 or over, the starting point is 15 years. But many murders qualify for a starting point of 30 years or more.

By itself, that would not have led to a doubling of the prison population over such a short period. In 1991, the prison population of England and Wales was just nudging 40,000. Last week, after recent early releases, it was 86,526.

But as Lord Woolf and his successors point out in their report, raising the minimum term for murder has driven up the sentences for other serious crimes. A rising tide lifts all boats in the harbour.

After the former judges’ report came out, some people claimed that an increase in other sentences had not been inevitable. On the Law and Disorder podcast last month, Lord Burnett of Maldon, the former lord chief justice, asked whether politicians understood, when the Criminal Justice Act 2003 was going through parliament, that “its effect would be to drag up sentences for everything else behind it”.

In reply, the podcast’s co-presenter Charlie Falconer insisted that the politicians “most certainly did understand that — and it was done deliberately”.¹ He should know: Lord Falconer of Thornton became lord chancellor and secretary of state for constitutional affairs on 12 June 2003, just before the legislation had its main debate in the House of Lords.

The judges certainly realised the knock-on effects of increasing the minimum period that murderers would serve. As chief justice, Woolf spoke at the bill’s second reading in the Lords on 16 June 2003. He had lodged a paper in the Lords library on behalf of all the judges who heard criminal appeals.

Referring to the proposed minimum terms, it said:

The figures are out of proportion with other sentences for serious crimes, for example, crimes involving importation of drugs which can cause huge damage to the public. If these figures are enacted, then they are bound to result in substantial increase in sentencing in relation to crimes overall and distort the task of the Sentencing Council before it is established.

But that view was not understood — or, at least, not accepted — by the politicians to whom Burnett referred. On 15 October 2003, Baroness Scotland of Asthal, then a junior minister in the Home Office, responded for the government in the House of Lords. Referring to Woolf’s fears, she said:

We do not believe that the ratcheting up to which he refers will occur.

We have examined the history of the way in which sentencing in relation to murder and other generic sentences takes place, I hope that members of the committee will accept that one does not tend to pollute the other.

Therefore, the ratcheting up that is described is not evidenced by the empirical data that we have at present.

In a slighting reference to the then chief justice, Scotland added:

On this occasion perhaps the noble and learned lord does not have as comprehensive a view of the system as do we. We beg to differ with him.

You can hear what Coomber makes of all this on the latest episode of A Lawyer Talks. She also brings us up to date on the latest reforms to IPP sentences, which take effect in just a month from today.