Sentencing reform may be about to shake up the criminal justice system. As Scotland will extend its presumption against short sentences from three to six months this year, England could introduce a presumption of its own.
Three weeks ago, prisons minister Rory Stewart said that short sentences were only ‘long enough to damage you and not long enough to heal you’ and that community sentences were more appropriate.
Over half of offenders sentenced in 2018 received a sentence of six months or less, so this move would have major consequences. The vacuum left by a presumption against short sentences would have to be filled by community sentences, reversing ten years of their declining use.
Analysis by the Ministry of Justice has made a case for community sentences.
Data from 2016 showed that prisoners serving a sentence of fewer than 12 months had a reoffending rate of 64.5%. For the same period, offenders given a community sentence had a reoffending rate of 34%. Though some are highly critical of the message that would be sent by not imprisoning criminals, it is clear that short sentences are not deterring many offenders from crime.
Community sentences are also far cheaper. The most expensive community order (at most £5,000) is half the cost of imprisoning someone for six months (around £11,000). A presumption against short sentences could bring cost savings and lower prison populations that have increased by 77% in the last 30 years.
The number of community sentences has fallen every year for the last decade.
A recent survey of nearly 600 magistrates found that 37% were not confident that community sentences were a suitable alternative to custody. This is compounded by the public often viewing community sentences as ‘soft justice’, and not trusting probation services to supervise offenders in the community.
‘Sentencer confidence in community sentences must increase. Magistrates must be better trained to understand the range of interventions, sanctions and punitive measures a community sentence can include.’
Sentencer confidence in community sentences must increase. Magistrates must be better trained to understand the range of interventions, sanctions and punitive measures a community sentence can include.
Underpinning this issue is poor communication between sentencers and probation providers. Magistrates report feeling that they have insufficient knowledge of what probation services can deliver for a community sentence.
This has been exacerbated by the 2014 Transforming Rehabilitation reforms. Community Rehabilitation Companies that deliver probation services are not permitted in the courts because they are private companies.
The National Probation Service, which assesses the risk of all offenders who are sentenced by the courts, must be able to advise sentencers on behalf of CRCs. Communication with sentencers is crucial to build trust, but the exclusion of CRCs from the courts, and separate NPS and CRC IT systems, make this difficult to achieve.
CRCs must establish closer relationships with sentencers. Sentencer forums - both real and virtual – can play a role in bringing both together. Most importantly, the Ministry of Justice must explore how to overcome barriers to CRCs working with the courts.
Probation services face huge challenges, and public attitudes will be slow to change.
If a presumption against sentences of six months is introduced, sentencers will need clarity.
If short sentences will remain a ‘last resort’ (to be determined by the sentencer) under the terms of the presumption, this may result in continued overuse of short sentences, as has been the case in Scotland.
It must be made clear where the ‘custody threshold’ will lie.
Increasing sentencer confidence in community sentences must be the first step to building public confidence in their use.
