More Council of Despair ?

All’s not well at the Sentencing Council. Chairman Lord Justice Treacy has had to remind judges and magistrates to use suspended prison sentences only in the most serious cases which would otherwise result in custody – and not simply as a way of giving lower level community penalties more teeth.

Treacy – and no doubt the Ministry of Justice- fear that if courts continue to ignore last year’s guideline on the imposition of custody but do pay heed to a forthcoming one on breach, the result will be “a high volume of activated suspended sentences”.  That means more pressure on the beleaguered prison system which has reported record levels of violence and self-harm in 2017.

More than one in ten suspended sentences are terminated early for a failure to comply with requirements and 18% for a further offence. While it’s not known how many of these cases currently go to jail, the new guideline is expected to urge activation of the custodial sentence unless it would be unjust in all the circumstances. The draft of the breach guideline tells courts to remember “that the court imposing the original sentence determined that a custodial sentence was appropriate in the original case”.  The problem is that in many cases they haven’t and it wasn’t.

The Council and Probation service have cooked up a plan to stop suspended sentences being recommended in Pre-Sentence Reports.(PSRs)  They’re proposed in about a third of PSRs and courts  accept two thirds of the proposals. What will happen now?  While the hope is that most suspended sentences will be replaced by community orders, there’s a risk that some additional custody may be imposed or even proposed.    

Such unintended consequences would be nothing new for the Council. An independent review of its work by eminent criminologist Sir Anthony Bottoms has confirmed that two major guidelines – on assaults and burglary - have led to unexpected increases in the severity of sentencing,  "which is bound to create anxiety among civil liberties groups”. The review is also critical of the Council’s failure, when drafting guidelines, to consider the relative cost and effectiveness of prison and other sentences in reducing re-offending.

The review makes largely technical recommendations about how the Council should both undertake and communicate its work in the future. There are good ideas here - a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?" because sentencers may forget to do so. 

Not surprisingly the Council has rejected the idea of opening itself up to a television documentary but it has promised to foster better links with academics, review research on the effectiveness of sentencing and engage more with stakeholders other than sentencers. An external agency will be appointed to examine issues of public confidence in sentencing. 

Bottoms echoes several of the findings in the report I wrote for Transform Justice in 2016 -The Sentencing Council for England and Wales- Brake or Accelerator on the Use of Prison. He argues that a preoccupation with the prison population has blunted the impact of the Transform Justice report because “the current reality is that it would be politically very difficult for the Council, even if it wished to do so, to argue for a step change in the use of prison.” That may be true but does not excuse the fact that a body which could have curbed the unnecessary use of prison has largely failed to do so. 

Actually, noises coming from the Ministry of Justice are more promising than for some time. Prisons minister Rory Stewart told Parliament this week that he will be looking at what more the Government  can do to emphasise ​that a custodial sentence in the short term should be a final resort. He accepted there is a lot to learn from Scotland which has introduced a presumption against short prison sentences. Maybe the tide is finally turning?