Independent Sentencing Review

This is a lightly edited version of our submission, adjusted for purposes of clarity and ease of reading.

1. Sentencing trends and what needs to be done

This section covers three areas:

1. Rebuilding the share of community sentences
2. Tackling sentence inflation
3. A new political consensus

Rebuilding the share of community sentences

The long-term decline in the use of community sentences, against the backdrop of a long-term decline in the number of criminal sentences issued by the courts in England and Wales, is one of the most striking changes in sentences over recent years.

In the 12 months to June 2024, 1,147,774 sentences were handed out by magistrates’ courts and the Crown Court for all offence types (indictable, triable either way and summary). This is a fall of more than one-third of a million, or 24 per cent, compared with the 1,507,797 issued in the 12 months to June 2005.

The number of immediate custodial sentences imposed fell broadly in line with the general decline in criminal sentences: from 102,864 to 75,342 between 2005 and 2024; a fall of 27 per cent. The fall in the imposition of community sentences was far more significant: down by 64 per cent (from 202,958 to 73,425).

Put another way, in the twelve months to June 2005, twice as many community sentences as prison sentences were imposed by the courts. By June 2024, the courts were issuing more prison sentences than community sentences.

Recommendation

The Independent Sentencing Review should make it priority to recommend ways of rebuilding the share of community sentences, and rebalance sentencing away from an overuse of imprisonment and towards a greater use of community sentences.

Tackling sentence inflation

Increasing the share of community sentences will not, in and of itself, deliver a more proportionate use of imprisonment, as research by the Centre for Crime and Justice Studies demonstrated some years ago. Nor will increased use of community sentences, on their own, address the prison capacity crisis.

Addressing the increase in sentence lengths is also important. As the Chair of the Independent Sentencing Review points out in his Foreword to the call for evidence, “the fact that the average custodial sentence length stands at nearly 21 months, up from about 13 months 20 years ago, has undoubtedly had a profound impact” on the capacity crisis affecting prisons.

The increase in average custodial length is a relatively recent development. As a Ministry of Justice review pointed out in 2020:

The Average Custodial Sentence Length (ACSL) for prisoners sentenced to immediate determinate custody for all indictable offences was relatively stable between 1993 and 2010… However, it has risen annually since 2010

The rise in the ACSL is an expression of a shift in sentencing from shorter to longer sentences. The number of shorter prison sentences for all offences – both those up to 12 months, and those over 12 months and up to two years – fell between 2010 and 2024, by 33 and 28 per cent respectively.

The number of all sentences over two years increased, particularly at the higher end. The number of sentences for between 10 and 15 years increased by 188 per cent; those over 15 years, excluding life sentences, increased by 425 per cent.

Recommendation

The Independent Sentencing Review should recommend ways to lower the average sentence length in general, and longer sentences in particular.

A new political consensus

The reasons for these sentencing changes are varied. The Independent Sentencing Review may wish to consider commissioning, or proposing, research into the relationship between changes in crime rates and/or crime severity and sentencing changes.

Our view is that any relationship is likely to be weak. There may also be a relationship between public attitudes and public campaigns and sentencing changes. In its 2023 report, Public opinion and understanding of sentencing, the House of Commons Justice Committee argued that “a series of campaigns to increase the statutory maximum sentence in respect of particular offences have led to legislative changes”.

The reference to “legislative changes” is important. The Independent Sentencing Review call for evidence makes reference to the impact of Schedule 21 of the Criminal Justice Act 2003 in driving up sentence lengths, and it is far from alone in making this link. More recently, and as the Justice Committee pointed out in its 2023 report mentioned above:

the Police, Crime, Sentencing and Courts Act 2022 increased the maximum sentences for causing death by dangerous driving and causing death by careless driving when under the influence of alcohol or drugs from 14 years to life. Parliament has also legislated to create the Unduly Lenient Sentence Scheme.

Sentencing policy is, rightly, a political issue, which is not to say that persistent party-political argument and contestation over sentencing, often featuring demands for ever tougher sentences, is helpful. Our first and second recommendations, on community sentences and sentence length, are only likely to be delivered if a political consensus can be established, among the main parties, on the nature of necessary and desirable sentencing reforms.

Recommendation

The Independent Sentencing Review should recommend cross-party dialogue on sentencing policy, with a view to agreeing a way forward.

2. Reducing unnecessary imprisonment

Section 230(2) of the Sentencing Code states that custodial sentences should not be imposed unless the offence or offences are “so serious that neither a fine alone nor a community sentence can be justified for the offence”.

Recommendation

The Independent Sentencing Review should propose ways in which this principle can be more effectively applied, to reduce the unnecessary resort to imprisonment and to increase the share of community sentences, both in relation to custodial sentences and as a proportion of all sentences imposed.

3. Better use of electronic monitoring

Despite political enthusiasm for the greater use of tagging technologies as part of a criminal sanction, the number being tagged each year has remained around 7,500 to 8,500 for several years. The number of those serving a community sentence with a tag has fallen over recent years. The number of those being tagged in the community, following release from prison, has grown.

The majority of those tagged as part of a criminal sanction are monitored through the established radio frequency tags. In March 2024, 3,310 individuals were tagged in this way. The use of radio frequency tagging has, though, been in decline. In March 2017, 8,344 were tagged with radio frequency technology as part of a community sentence or on release from prison.

The newer, location monitoring tags, are used less frequently. In March 2024, 1,427 were tagged in this manner. Part of the reason for this slower uptake relates to their troubled roll-out. The ‘New World’ strategy for electronic monitoring, launched in 2012, envisaged GPS-enabled location monitoring tags replacing the supposedly ‘obsolete’ radio frequency tags, anticipating between 160,000 and 220,000 being tagged by location monitoring technology by 2016-2017. As Professor Mike Nellis pointed out in a 2017 Centre for Crime and Justice Studies briefing, this strategy ended up being “an utter fiasco”.

Unrealistic ambition aside, a key reason for the failure of the earlier roll-out, Professor Nellis argued, was the failure to integrate tagging with routine probation work. Tagging technologies, he wrote “will never be used wisely and well anywhere unless they are embedded in decent and properly resourced pre-trial, community supervision and resettlement services”. Research published by HM Prison and Probation Service in 2018 backs up this point. It found that tagged individuals tended to regard compliance and change as due to the quality of support, not simply the use of the device.

Sentencers should be made fully aware of how the tag is likely to impact an individual and how human support can improve the experience for them and their families.

In our evidence to the 2022 inquiry into electronic monitoring by the House of Commons Public Accounts Committee, we highlighted the lack of independent regulation and oversight of tagging. We also expressed concerns that the “unregulated expansion of EM risks squeezing and thinning the stock of human supervision, programmes and support necessary for any rehabilitation to occur”.

Recommendation

The Independent Sentencing Review should consider ways in which a realistic approach to tagging, properly integrated with probation, might make a useful, if modest, contribution to a reshaping the overall approach to sentencing.

4. Reforming the use of short prison sentences

This section covers three areas:

1. The long history of attempted reform
2. The presumption against, or bar on, short sentences
3. The custody threshold
4. Underlying principles

A long history of attempted reform

The rationale for a shift from short prison sentences to community sentences is a familiar one. Numerous arguments were made around the 2020 Sentencing White paper to the effect that short prison sentences: (1) do not work to encourage desistance; (2) are fuelled by a use of prison for less serious/harmful lawbreaking for which there are better responses in the community; and (3) create chaos and churn in the prison estate.

A long history of attempts to foster alternatives to short-term immediate custody in England and Wales suggests that individual reforms, no matter what their progressive intentions, can be disappointing in practice, or indeed can increase prison demands.

Reforming custodial sentences with the intention of reducing short prison sentence demands can result in:

1. up-tariffing from community based sentences, rather than down-tariffing from prison sentences;
2. net-widening rather than straightforwardly diverting from immediate custody; and
3. increasing prison demand via the backdoor through breach. The use of the Suspended Sentence Order, for example, have exemplified this.

Presumption against, or bar on, short sentences

This has made us cautious about the approach of a presumption against, or bar on, short prison sentences.

We explored these options in work assessing the sentencing options for reducing short prison sentences, including here, here and here.

Presumptions against short sentences set out a clear intended direction of travel but have been disappointing in practice. The Scottish presumption against short sentences of less than three months, failed to affect significantly sentencer decision-making or sentencing outcomes.

Bars can backfire. In Western Australia, for instance, a bar on prison sentences of up to six months had no overall effect on prison numbers. Down-tariffing as a result of the bar was balanced out by up-tariffing to longer prison sentences.

Though we appreciate there is an element of ‘chicken and egg’ about this, in the prevailing climate of sentence escalation, we think it likely such measures could have an up-tariffing effect in England and Wales.

The custody threshold

The current custody threshold means, in statutory terms at least, prison is already only used if the offence or offences are ‘so serious that neither a fine alone nor a community sentence can be justified for the offence’. The lack of clarity about what ‘so serious’ means in practice, beyond being a matter for sentence discretion, has been a key criticism of this legislation and its failure to have a significant impact in practice.

The existing threshold is an unsatisfactory test because it can be interpreted so as to allow a custodial sentence when an individual has experienced all other possible forms of sentence (even though the offence is not serious), and as a backstop for non-compliance. The current system leaves sentencers few options in terms of responding to repeated low-risk law-breaking, driven by underlying social needs (for example repeated shoplifting), other than sentence escalation and a wasteful cycle of short-term imprisonment.

Germany reduced the use of short-term imprisonment in favour of community-based sentences over a long-term period from the late 1960s. It amended its custody threshold as one part of a wider programme of reform (see https://link.springer.com/article/10.1007/s10609-017-9331-x). Sentencers were required to make two assessments when considering a custodial sentence: (1) that a community-based sentence is not appropriate, and (2) that a short prison sentence must better achieve the intended sentencing outcome.

Recommendation

We recommend focusing on the existing law, and in particular strengthening the current custody threshold by clarifying the principles for imposing imprisonment (including suspended sentences). We think this is potentially a more impactful formulation and one that avoids the risk of up-tariffing.

Underlying principles

Whatever the merits of the specific wording, achieving clarity and consensus about the underlying principles and rationale for imposing custody is the more critical matter.

Recommendation

The Independent Sentencing Review could consider the principles it would be helpful to have greater clarity about. For example:

• The role of previous convictions. Imprisonment should not be an option for repeat offences that would not in themselves normally warrant prison. This needs to be part of a joined up approach to address the social needs underlying repeated lawbreaking in the first place.
• A suspended sentence should not be imposed as a more severe form of community order.
• Even if the custody threshold is passed, a custodial sentence is not always appropriate.
• The circumstances and factors that may tip the balance against custody. For example, dependents, pregnancy and lack of maturity.
• The desirability of using short-term imprisonment for non-compliance.

5. Sentence progression

The call for evidence refers to the example of Texas, where “prisoners can earn a reduction in the length of time before they are eligible for release from prison or their licence period by engaging in rehabilitative activities”.

In a recent article on our website, Michele Deitch of the University of Texas at Austin and the former policy director at the Texas sentencing commission notes that the so called ‘good time’ reduction in sentences scheme have been in place for many years in Texas, as in most other US states. The ‘good time’ arrangements are, she argues, a necessary but not sufficient contributor to managing unsustainable prison expansion.

She further argues that the key features of the 2007 reforms in Texas, that contributed to a reduced prison population, were:

1. Investment in community treatment programmes and services and more effective community supervision.
2. Reduced resort to recalls.
3. Investment in resettlement support and provision, both in prison and on release.

Recommendation

Incentivisation through sentence length reduction is an idea worth exploring. We also recommend that the Independent Sentencing Review explores how such innovations might work best when implemented as part of a wider range of reforms, including more take up of community sentences, reduction in the use of recalls, and investment in improved resettlement support.

6. Tackling the problem of recall

A 2020 Ministry of Justice analysis notes:

In 1993, the recall population was estimated to be less than 100 – by 2020 it had increased to over 9,000

By June 2024 the recall population had grown even more, to 12,199. In the twelve months to June 2024, there were nearly 30,000 individual recalls to prison.

The rise in recalls was influenced by various legislative changes, including the Crime and Disorder Act 1998, the Criminal Justice Act 2003, the Criminal Justice and Immigration Act 2008, and the Offender Rehabilitation Act 2014.

The Annual Penal Statistics produced by the Council of Europe contain very partial comparative data on recalls (see Table 23). However, our understanding is that recall to prison is not used to any great extent in comparable jurisdictions. The Council of Europe data, for instance, indicate that there were 247 prisoners on recall in Spain in 2023.

One reason for the lower use of recall in comparable jurisdictions might be the different way that recall decisions are made.

In England and Wales, the Probation Service is responsible for the decision to recall to custody. We recently consulted with partner organisations in the European Prisons Observatory, of which the Centre for Crime and Justice Studies is the UK representative.

Five partner organisations in the Observatory responded, with the following information:

• Germany: recall decisions are taken by a judge.
• Greece: recall decisions are taken by the equivalent of the Parole Board, on application by the police or probation service.
• Hungary: recall decisions are taken by a judge, on application by the police or probation service.
• Italy: recall decisions are made by a judge.
• Spain: recall decisions are made by judge.

Recommendation

The Independent Sentencing Review should consider options for tightening the governance of recall decisions, including the possible involvement of judges or the Parole Board in making the decision. The Independent Sentencing Review may also like to consider seeking international comparative data on recall rates in comparable jurisdictions.

7. Joint enterprise

The Centre for Crime and Justice Studies has ongoing concerns about secondary liability law (those deemed to have assisted, encouraged, or brought about the crime of another person). Specifically, that the current law and its use results in overcharging and over punishment.

The discrepancy between an individual’s culpability and the custodial sentence length they receive are particularly acute for homicide, due to the current lengthy mandatory minimum sentences. These issues have been intensified by:

• The mandatory knife uplift, which can be applied to the person who did not bring the knife and to those who were little more than merely present.
• The reduction of starting points for mandatory sentences to aged 18 in the Police, Crime, Sentencing and the Courts Act 2022.

We would like to draw attention to these long sentence lengths in light of evidence about the young age of those prosecuted (predominantly children and young adults) and the over-prosecution of young non-white people in particular. This includes evidence collated in our report, The Usual Suspects, and a data analysis by the Crown Prosecution Service. The low threshold by which people can be prosecuted and convicted in such cases is also a critical issue.

The recently-announced Law Commission review of murder and manslaughter includes joint enterprise in its remit.

Recommendation

The Independent Sentencing Review should give consideration to signalling the importance of reforming secondary liability laws in favour of a fairer, safer framework for conviction, with less discriminatory outcomes.

Due consideration should also be given to having a separate sentencing levels for those convicted under secondary liability. Currently those convicted of an offence under secondary liability are subject to the same sentence or tariff as a principal offender, which, in the case of a murder involving a knife starts at 25 years for those aged over 18.