New “radical” sentencing overhaul fails to deliver

In September, the Ministry of Justice (MoJ) published a white paper, outlining the government’s proposals around sentencing reform.

Contained within it, Lord Chancellor and Justice Secretary, Robert Buckland QC, promised to make good on the Conservative’s manifesto pledge of “tougher justice”.

However, upon closer inspection, the paper’s predominant focus on retribution over rehabilitation, seems to lean on sound bites and old cliches, to distract from the fundamental issues that lie within the justice system.

Overcrowded, understaffed, dirty, and quickly running out of space, the UK’s prison situation is only likely to worsen under this “radical sentencing overhaul,” intended to “cut crime”.

Clamp down on “soft justice”

Back in 2019, Boris Johnson, and the Conservative Party pledged to clamp down on what they called “soft justice,” claiming that the Labour Party had a “determination to be soft on crime”.

Subsequently, in their manifesto, the party vowed to introduce tougher sentencing for the “worst offenders”. It also outlined that the party would bring an end to the automatic halfway release of prisoners who have committed the most serious violent and sexual crimes.

This pledge was made even though offenders who pose a significant risk of serious harm to the public, already typically receive either a life sentence or an Extended Determinate Sentence (EDS).

The party also promised to introduce life imprisonment without parole for murderers of children. However, whole-life orders already exist for this crime in some cases under the Criminal Justice Act 2003. This piece of legislation was also brought in under a Labour government.

Yet, this “tough on crime” stance is a Conservative agenda that has been publicly pushed for years, including by Prime Minister Boris Johnson. Back in 2011, when the PM was serving as the Mayor of London, he outlined his apparent hardline approach to sentencing: “Soft is the perfect way to enjoy French cheese but not how we should approach punishing criminals,” Johnson wrote: “It’s time to stop offering shorter sentences and get-out clauses”.

However, this outward projection of course overlooks the fact that a Conservative government passed the Criminal Justice Act 1991, that introduced eligibility for early release at the halfway point of a sentence. It also ignores the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), brought in under the Conservatives, which also preserved early release at the half-way point of a sentence. Certainly, it was also a Conservative administration that scrapped the heavily criticised Imprisonment for Public Protection (IPP) sentences.

Many have also criticised this divisive and misinformed approach of “tough” versus “soft” justice. The Centre for Justice Innovation, for example, has suggested moving away from old “cliches” and focusing instead on reforming community sentences. This, the think tank says, will help to significantly reduce reoffending.

Meanwhile, back in January, a Prison Reform Trust report, warned the government against implementing longer sentences for criminals, arguing that it was not the way to restore faith in the justice system. Moreover, the report claimed such punitive policies would just add pressure to prisons that are already overcrowded and overstretched.

A “smarter approach to sentencing”

On 16 September, outlining its proposals to make significant changes to the sentence and release framework in England and Wales, the government published its policy paper, namely “A Smarter Approach to Sentencing”.

According to the Lord Chancellor, the justice system is currently beset by “complex and confusing laws,” which the public apparently perceive as failing in “their most essential aims”. The white paper has subsequently been described as the first step in a “fundamental shift” in the approach to sentencing, and an “opportunity” to grow “trust and confidence” in the sentencing system.

As part of its plan to “protect the public from serious offenders,” the paper proposes a number of measures. This includes:

• The increased use of whole-life orders
• Longer tariffs for discretionary life sentences
• Longer sentences for serious offenders
• The alteration in the the minimum term starting points for murder committed as a child
• Fewer opportunities for over 18s who committed murder as a child, to have their minimum term reviewed

Accompanying these tougher measures, the white paper focuses on rehabilitation through

the implementation of more community sentences. A focus on prevention, early intervention and diversion is also highlighted. Additionally, the paper outlines plans to pilot Problem Solving Court models, which will be targeted at repeat offenders, as an alternative to them being taken into custody.

However, these more optimistic elements of the white paper have been met with criticism by some. This includes the Standing Committee for Youth Justice, an alliance, which is made up from a number of organisations including, the Criminal Justice Alliance, the Howard League for Penal Reform and the Prison Reform Trust.

The alliance argues that while some elements are promising, the paper has a significant lack of detail around how the rehabilitation reforms will be developed and financed. The alliance outlined: “Of particularly significant concern is the lack of detail of how racial disparity at each stage of the justice system will be tackled – recognising the need to improve the situation is not the same as taking immediate action”.

It added: “Overall, these reforms pay little attention to the underlying causes of crime, summed up by Robert Buckland’s assertion that “to commit a crime is a choice”.

A distraction from collapse

A number of organisations within the legal sector, and charities focused on prison reform, have responded to the proposals made within the sentencing white paper.

Peter Dawson, Director of the Prison Reform Trust, stated that the proposals set forward are merely a reheated version of the failed policies of previous governments. He argued that despite sentencing getting “tougher” for three decades, there has been no positive change on either crime or public confidence.

Further to this, he said: “Talking tough is a good way to distract attention from a criminal justice system in collapse, failing both victims and offenders. People wait months, even years, for cases to be heard, then at the end of a jail term prisoners leave prison with nowhere to live. There’s nothing smart about rehashing punitive rhetoric and hoping for a different outcome. It’s a missed opportunity”.

Moreover, he also outlined that proposals would just lead to further overcrowding in prisons. These fears have also been echoed by the Public Accounts Committee, which forecast that prison spaces could run out by 2023. Already, the UK has the highest prison population in Western Europe, a trend which is unlikely to waver if these new proposals are implemented.

Meanwhile, Frances Crook, Chief Executive of the Howard League for Penal Reform, commented that the proposals lacked “proper testing of the evidence” on what works to reduce reoffending.

She added: “This is tinkering around to throw red meat to the tabloids, without any evidence that it stands a chance of working. None of the proposals are likely to protect victims. Indeed, by pushing more men into prisons for longer, it is likely that more victims will be created”. This is a statement which is backed up by shocking statistics. According to figures published by the MoJ, assaults on prison staff are up 29%, an all time high.

Responding to the proposals made within the white paper, James Mulholland QC, Chair of the Criminal Bar Association, outlined: ‘A Government that concentrates on sentencing the back-end of justice, whilst failing to pay up and invest significantly more and swiftly into policing, CPS and courts, fails in its core duty to keep the public from harm”.

The overarching impact assessment of the white paper, also highlighted significant flaws. It stated that increased population and longer times spent in custody for some offenders may compound “prison instability, self-harm, violence and overcrowding”.

The impact assessment also stressed that longer periods in custody can lead to family breakdown. It stated that this could have a significantly detrimental impact on the prisoner’s mental health and chance of re-offending.

Moreover, it warned that longer sentences could mean an “increased risk” that prisoners could become radicalised or more dangerous due to the greater time in custody.

Unfortunately, it appears that this white paper introduces many more problems than it solves, and contains policy proposals that are not based on evidence. The criminal justice system is at breaking point, and without reforms that promise real, effective change, it will remain not fit for purpose.