The current review of sentencing led by former Lord Chancellor and Justice Secretary, the Rt Hon David Gauke, offers a valuable opportunity to change the way we think about punishment in our criminal justice.
While there is hope for genuine reform, there is concern that the review will merely aim to ease prison overcrowding rather than deliver a meaningful shift in how we understand and apply punishment.
A key driver of rising sentence lengths has been the relationship between public opinion, media influence, and political reaction. The escalation in the length of sentences imposed for more serious offences and the lack of confidence in non-custodial sentences for less serious offences are driven by this dynamic. Furthermore, the increases seen do not appear to have any discernible impact on overall crime rates which have been falling in line with those in many western jurisdictions over the same period.
The 2003 Criminal Justice Act’s Schedule 21, which increased minimum terms for murder, has had a ‘knock-on effect’ across sentencing practices, with life sentences of 30 years or more now relatively commonplace. There is no longer public discourse around whether prison sentences of such length are survivable.
The prison population surge that began in the 1990s was not due to rising crime, but rather the increasing ‘tough on crime’ political stance. Meanwhile, other western European countries with falling crime rates have not mirrored this trend. Compounding the issue is the changing purpose of post-custodial supervision, which, instead of aiding reintegration, often imposes overly strict licence conditions, resulting in a growing number of recalls to prison.
The public view that crime is rising and that sentences are reducing is heavily shaped by media and social media, often diverging from reality due to lack of accessible information. Media-driven responses to individual crimes can prompt policy changes without due regard for cost or effectiveness. Despite a lack of evidence that harsher sentences deter crime, retributive rhetoric continues to influence sentencing decisions, driving up sentence lengths. This is not, in our view, a sensible way to decide the country’s sentencing policy.
The need to have a body to consider these campaigns, as a part of the totality of the available evidence and consider both the desirability and effectiveness of change in sentencing policy, but also the cost to the public of such a policy change, would seem to be a way of effectively managing these competing pressures.
The Judiciary must be confident in the effectiveness of sentencing options. Providing data on cost, effectiveness and availability at the point of sentence would support more informed decisions. Where public protection is not a concern, offences could be dealt with outside court through reparation. Fines should be used where affordable, with asset seizure considered where appropriate. Community services, including supported accommodation, should be available as alternatives to custody. Drug, alcohol, and mental health issues should be addressed pre-sentence where possible, with courts able to divert offenders into services rather than prison.
On passing sentence, the sentencer should clearly state its purpose, based on the five statutory aims: punishment, crime reduction, reform and rehabilitation, public protection, and reparation. This clarity allows professionals to deliver the sentence accordingly, with minimum terms set for the purposes of punishment and deterrence, or extended periods for the purposes of rehabilitation and public protection.
Prison sentences under 12 months are ineffective for rehabilitation and should only be used for punishment where no harm is caused to others, such as dependents. Sentence progression should be predictable to support planning. Presumptive recategorisation, like the Temporary Presumptive Recategorisation Scheme (TPRS), should apply more broadly to reduce unnecessary risk assessments and guide offenders clearly.
Clear goals help prisoners engage and use their time productively. Currently, prisoners serving long sentences complete Offending Behaviour Programmes long before release, not for rehabilitation, but to support recategorisation—diverting resources from pre-release support. These resources could be better used closer to the release point.
Sentences with a minimum and maximum term, allowing time in custody to vary based on compliance, should be considered. Open conditions should be a sentencing option, informed by Pre-Sentence Reports.
At the point of sentencing, it should be clear what the sentence is, how much time will be spent in custody (if any), the purpose of that time, and whether a licence period is imposed. Victims should be informed of the reasons for the sentence and any key dates, particularly where reparation is involved. Sentencing should be individualised, based on the best available data to deliver the best value for the public in terms of the balance between cost and the stated purpose of the sentence imposed. It should not be driven by party politics. The recent political debate over Sentencing Council guidance highlights the risk of politicisation.
We support increased use of pre-sentence reports that are more likely to serve the purposes of sentencing; punishment of the offender, reducing crime, reform and rehabilitation of offenders, protection of the public and reparation by offenders.
