Bring on the 'community order roadblock'

Practically – it reduces the prison population. Procedurally – it moves from short-term punishment to long-term rehabilitation. Evidentially – re-offending rates are less if the offender stays in the community.

The big problem is how to realistically make this happen. We have had the same sentiments and the same legal test for over 20 years. This purports to ensure that custody is only imposed when it is necessary. The test is that the ‘custody threshold’ can only be passed if an offence is ‘so serious’ that a community order or fine cannot be ‘justified’.

Yet in the same period, prison sentences and suspended sentences have increased, and community orders have halved, with no correlation to increased crime.

The review will only succeed if the following problems of the existing ‘custody threshold’ criteria are recognised and resolved.

1. The conflicting legislation between the nebulous and discretionary assessment of whether an offence is ‘so serious’, and the duty to follow the relevant offence guideline.
    
2. Sentencers have a primary duty to ‘follow the sentencing guidelines’ unless is it not in the interests of justice to do so. After careful consideration of each listed factor for the specific offence, an ‘answer’ emerges, e.g. 26 weeks custody. This is relatively straightforward to understand. Discretion may be applied to the custody length and possible suspension.
   
   Glaringly missing, is any cross-reference to check whether the ‘custody threshold’ test would enable a community order or fine to be justified instead. Basically, the test is easily ignored and the guidelines prevail.
    
3. Suspended sentences became the sentencer’s dream in 2003, with the power to add the same requirements as a community order. Best of all worlds! However, during 2023, 66.5 per cent of suspended sentences contained two or more requirements, i.e. a potential high community order! Clear leapfrogging over the ‘custody threshold’ test and the fascination with suspension prevails.

The solution – a clear amendment to the statutory custody threshold test when the guideline custody period reaches up to 12 months custody:

The court must impose a high level community order unless it determines, with the benefit of a probation report that:

1. There are insufficient suitable requirements to constitute a high level community order as a direct alternative to custody, or
    
2. There are persistent breaches or re-offending during a current order and there is no realistic prospect of preventing further offending other than by a custodial sentence, or
    
3. The court considers that a different non-custodial penalty is appropriate in the interests of justice.

Mere presumptions do not work. We have had that for over 20 years and it has blatantly not worked in Scotland even with heightened prescription. This is a duty.

It properly places reliance on the probation service to assess suitability for the individual. There are a multitude of criteria, including safeguarding and risk. We need to adopt an overriding aim to ‘prevent further offending’, rather than agitating over different purposes. This provides clear focus for both probation and sentencer.

The order must be at high level and logically needs at least two strong requirements to be commensurate with a custodial sentence. The high level would be clearly designated as a ‘direct alternative to custody’ to distinguish it from less intensive community orders.

‘Persistent’ breach or re-offending may reach the point when the community order can no longer be justified. The ultimate sanction is to re-sentence and the period, e.g. 26 weeks remains available. However, judicial training must convey that a single breach or further offence is likely to form an inevitable part of a desistance journey for this level of offender. Fines or increases in the order are alternative options on breach, and the order can continue. 

The door remains open in the interests of justice to impose a different non-custodial sentence. Sometimes through no fault of the offender, there will simply be insufficient suitable requirements to reach a high level order, e.g. the defendant is pregnant, or has mental health issues. Judicial discretion is preserved and a lower level order, fine or discharge may be imposed.

Creating new options and boosting probation service resources are not enough to achieve the move away from unnecessary custody. The law must change. We need to build a very clear community order roadblock within the legislation. This is it. 

This article is part of our ‘Ideas for sentencing reform’ series, discussing sentencing reforms against the background of the Independent Sentencing Review under the former Lord Chancellor, Rt Hon David Gauke.

If you would like to suggest an article for this series, get in touch.