Smarter sentencing?

Andrew Ashworth
Monday, 5 October 2020

It is several years since a government put out a White Paper on criminal justice.

Secretaries of State for Justice have come and gone, and political debate has been consumed by Brexit, Covid-19 and other pressing issues. Now we have a White Paper, A Smarter Approach to Sentencing, whose title may even be said to under-state its scope. It does contain proposals for changes to the sentencing system. But it also signals the creation of legally enforceable victims’ rights, some reductions of the rehabilitation periods for criminal records, tightening the requirements for remanding young people into custody, statutory reform of out-of-court disposals, increases in the powers of the National Probation Service, and the announcement of a ‘root-and-branch review’ of the parole system.

As for the proposed changes in the sentencing system, they adopt a bifurcated approach. The White Paper announces several initiatives to replace short prison sentences with community sentences, but on the other hand the imperatives of public protection are invoked to drive the ramping-up of already long sentences. Thus since April this year an offender convicted of a serious sexual or violent offence for which the maximum penalty is life, and who is sentenced to seven years or more, must serve two-thirds in prison before release on licence, instead of a half; the White Paper now proposes to include those sentenced to four years or more in this category, releasing them only at the two-thirds point.

In effect, these may be seen as sentence increases, since they lengthen the custodial element in these sentences. Will they protect the public more than supervised release on licence? This approach is also applied to discretionary life sentences: at present the minimum term is usually calculated at half the notional determinate sentence, whereas the White Paper proposes to raise this to two-thirds, consistently with the release date for longer determinate sentences and extended sentences. The same approach is taken to Offenders of Particular Concern who have committed serious sexual offences, who will become eligible for release after serving two-thirds (not half, as now). The White Paper also proposes to add ‘premeditated murder of a child’ to the murders that have a starting point of a whole life order, although the judge retains a discretion to impose a lesser minimum term (for example, in mercy killing cases).

The government takes the judiciary to task for finding it unjust, in many cases, to impose the minimum custodial sentence for repeat burglary, repeat drug dealing, repeat possession of a knife or offensive weapon etc. The White Paper speaks of changing the ‘unjust to do so’ criterion so as to ‘raise the threshold’ for cases going below the minimum sentence. No details are given of the new wording; nor how this change fits with the Secretary of State’s lament that ‘judges’ hands are too often tied’; indeed, there is no reconsideration of the need for minimum sentences (which inevitably compromise the courts’ approach to normally mitigating factors) rather than incorporating these offences into the sentencing guidelines.

Moving away from the upper track of the government’s bifurcated approach, the White Paper refers to the objectives of reducing reoffending, rehabilitating offenders, reducing the number of victims and protecting communities. Short custodial sentences provide no more than a temporary respite from lower-level offending, whereas community sentences may be more effective in delivering the desired objectives.

‘Those sentenced to short custody (six months or less) have an average of 65 offences, with community sentences having been tried and having failed.’

Although this part of the White Paper retains the language of public protection and ‘robust punishment’, it turns the spotlight on to offenders with vulnerabilities and to responsive community orders, particularly alcohol treatment requirements, drug rehabilitation requirements and mental health treatment requirements. There is a commitment to increased funding for these programmes, and a link to the Sentencing Council’s recent guideline on Sentencing offenders with mental disorders, developmental disorders, or neurological impairments.

However, the White Paper also places considerable emphasis on electronic monitoring and on more flexible (and extended) curfews, and it proposes a ‘house detention order.’ This would be a new order, using GPS tagging technology and severely restricting liberty, available only for offenders who have not previously been to prison and who would otherwise have received custody on this occasion. This renewed emphasis on community sentences would be accompanied by greater use of pre-sentence reports (PSRs): ‘we will invest in additional staff at courts to support more, higher-quality PSRs for more cases’. New approaches to PSR delivery will be piloted.

There are many more proposals in this White Paper. It refers briefly to the objective of ‘relieving demand on prison places’, but the proposals on the upper track will increase demand, not relieve it. Reducing the use of custody for young offenders is described as a success. The fixed lengths of detention and training orders for young offenders are to be abolished, but the release date from longer custodial sentences (7 years plus, for serious violent offences) is to be increased to two-thirds. There are proposals for increasing the starting points for minimum terms in murders committed by young offenders: the White Paper refers to ‘a more gradual shift to adult sentences,’ but sadly there is no separate reference to young adult offenders in this or most other contexts.

This is a White Paper that is full of proposals, but sometimes rather short on supporting reasons.

Andrew Ashworth is an Emeritus Professor of Law at Oxford University, and author of Sentencing and Criminal Justice.