Seasoned observers of Ministry of Justice White Papers since 2010 could be forgiven for thinking that the latest one has been written by a singularly dim and unsophisticated algorithm.
Despite its title, A Smarter Approach to Sentencing, both the gist and detail of its proposals are predictable and formulaic. Like all its recent predecessors it claims the immediate and self-evident cause for public concern about crime and criminal justice is a) insufficient punishment, and b) inattention to victim’s needs and rights.
That this is exactly what the last one said, and the one before that, goes unmentioned, as if punitiveness had not been steadily intensifying since 2010, and that only this new one will finally make a generational difference.
Empty superlatives like that abound. Introducing the White Paper, Justice Minister Robert Buckland stated that once and for all Electronic Monitoring (EM) would now be 'fully capitalised' on, although what that means in practice proves somewhat unexpected and remains vague.
Aptly enough for a White Paper written during the pandemic lockdown, it sees lockdowns as the answer to everything, systematically increasing the length of both custodial and community sentences and reducing early release for both young and adult offenders.
Significant increases in custodial populations are expected, and collateral damage indifferently acknowledged, 'Serving longer periods in custody may mean family breakdown is more likely, affecting prisoner mental health and subsequent reoffending risk'.
Pointedly, the term 'proportionality' figures nowhere in the White Paper’s 115 pages. No justification, beyond getting tough and giving the public what politicians claim they want, is offered for this and no evidence at all for the upcoming changes to EM. To understand what’s new - and what’s old – in respect of EM in 2020 we need to glance back.
Chris Grayling's 'New World'
In 2012, the then Justice Secretary Chris Grayling launched an initially covert plan, dubbed 'New World', to revolutionise the faltering use of EM in Britain by shifting away from radio frequency (RF) based curfews towards 'mass monitoring', using global positioning system (GPS) based tracking technologies.
As the National Audit Office (NAO) was later to show, the project was a shambles, but the silver bullet of GPS technology, so much more versatile than existing RF, with potential to monitor movement in real-time, and to enforce exclusion zones, retained its allure even after his departure. Eight well-run pilot schemes preceded a national roll-out of GPS in 2018, with the modest expectation that more versatile forms of EM would, as sentencers gained confidence in them, find their place alongside the still extant RF EM-curfews.
The new White Paper departs significantly from this expectation, and restores the primacy of curfews, albeit more onerous and widely used than before, especially in youth justice. GPS remains the technology of choice, but gone is any interest in more versatile forms of monitoring. All it will be used to enforce is home confinement, for longer, more deliberately punitive periods, a spurious form of incapacitation that notionally effects public protection.
This is largely how GPS EM is used in the USA – its tracking capability serving primarily to deter absconding from a designated place of confinement and to monitor movement during authorised absences. This is the one penal advantage GPS has over RF for monitoring curfews.
Why the resurgent enthusiasm for curfews?
Why has this reversion to curfews occurred? One suspects that sentencers in England and Wales, who never mustered any great enthusiasm for the experimental GPS tracking schemes, struck a bargain with an already receptive populist government to stick with curfews, in return for which they would use curfews much more.
When Buckland spoke of 'fully capitalising' on EM he clearly did not mean making the most of GPS, but making it as ubiquitous in community supervision as Grayling had wanted in “New World” remains on the the MoJ agenda. Certainly MoJ payment to the Electronic Monitoring Service will rise from £1.3m to £2.4m, 'for increasing the caseload who will be monitored'.
In respect of community orders and suspended sentences, the White Paper proposes increasing the maximum period of a curfew requirement from one to two years, and raising the current maximum of daily hours raised from 16 to 20 in some instances.
Sentencers will be enabled, within a fixed limit of 112 weekly curfew hours, to set flexible schedules for offenders, with, say, 20 hours indoors on leisure days and fewer or none on work days. Probation officers may be required to advise on this, taking account of victim’s views on what an offender’s monitoring schedule should be.
The revival of the Supervision and Surveillance Order
The White Paper further proposes a new standalone House Detention Order will be piloted, 'for offenders who have not responded to existing community sentences….based on a lengthy and restrictive curfew, which would be accompanied by other measures to address rehabilitation and prevent further offending as needed'.
This derives from an idea recently canvassed by the Centre for Social Justice but essentially reinvents the intensive Supervision and Surveillance Order. In the White Paper’s accompanying Impact Statement, the House Detention Order is mysteriously expected to improve the efficiency of the newly reformed National Probation Service.
Even the relatively new sobriety tagging schemes are deemed in need of re-alignment with the ethos of the White Paper. Legislation has already enabled their national roll-out, but even before they bed in, the MoJ is considering, '...making it possible to impose this for longer'.
This is cynically presented as having 'potential...to support longer rehabilitation goals', as if rehabilitation could not occur within the existing 120 day time-span, and continue afterwards. In addition, sobriety tagging is deemed incomplete without an accompanying curfew, so that will be rectified 'using a single tag'.
A faulty calculus of compliance
Zero thought is given in the White Paper to the vital questions of compliance, legitimacy and proportionality. Altering the duration of a community sentence alters the calculus of compliance; what is bearable punishment for a year may not be for twice that.
For lengthened EM curfews, in particular, the calculus crucially alters for the other members of an offender’s household – either the burden increases for them too, or they become more likely to refuse the offender’s residence with them, or both.
For these moral and practical reasons – and in honest opposition to the MoJ’s vindictive intent – all these new proposals on EM should be resisted. What we have now in EM is far from perfect but it would be better left as it is if these terrible reforms are all that the MoJ can come up with.
Mike Nellis is Emeritus Professor of Criminal and Community Justice in the Law School, University of Strathclyde