By Ellie Cumbo
Last week, the Independent Sentencing Review published its interim report. Although its scope is limited to just the first of seven themes that were set out in last year’s Call for Evidence, this encompasses the recent history of sentencing, including the key drivers of change during that time, and whether or not these have met the five statutory purposes. As a result, the interim report is an important act of scene-setting as we await the final findings and recommendations.
Few punches are pulled. The system came ‘dangerously close to collapse’ in summer 2024 and is heading that way again. The reasons for this are similarly starkly presented: ‘decisions made by successive governments and a “tough on crime” narrative that has focused primarily on punishment – understood as incarceration and longer sentences – on occasion responding to embedded misunderstandings about sentencing and high-profile individual cases. In tandem, there has been an underinvestment in probation and other alternatives that can provide rehabilitation and reduce reoffending’.
The chair of the review, former Justice Secretary David Gauke, used his occasional column in the New Statesman to give an even blunter view, taking square aim at ‘penal populism’. The overarching reason for the current prison capacity crisis is, he argues, that ‘[s]entencing policy has become more punitive as political parties have competed to lengthen prison sentences’ – an approach he succinctly concludes is ‘not sustainable’.
Although Gauke does not speak for the Government, and it remains open to Justice Secretary Shabana Mahmood not to adopt either his analysis or any of his recommendations, these are all signs that he and his panel of experts are gearing up to propose significant change. Gauke himself was explicit in his address to the joint seminar held by the Sentencing Council, City Law School and the Sentencing Academy in January that he expected legislation to follow swiftly on the heels of his final report, as early as July.
Those with a longstanding interest in reforming sentencing policy to be more evidence-based and sustainable will be forgiven for feeling some deja-vu, after various past promises that have never quite materialised. The question this time around is whether the combination of a large electoral mandate, and the wish not to relive the political trauma of early prisoner releases, is enough to push this government further than its predecessors.
In any event, the proposed reforms will be carefully scrutinised, not only in terms of their likely effect on prison capacity, reoffending rates and costs to the public purse, but also on less tangible criteria such as whether they undermine justice for victims and the wider public. Gauke’s assessment is that punishment has for too long been allowed to take precedence over the other purposes of sentencing – but he and Mahmood have been clear that its place as one of the key policy drivers in is not in doubt. The work ahead is therefore not simply a numerical exercise, in which demand for prison places is brought into line with supply: it will be a Herculean political challenge in which evidence, resources and public opinion must all somehow be made to align.
A key test of this new vision will be not only whether such a delicate balance can be found, but whether and how it can possibly last. How will the seemingly irresistible political demands that stand accused of having led to the current situation be avoided in future? The Sentencing Academy is one of many voices to have called for the reassertion of the role of evidence in the public debate. It has proposed the creation of a separate body to advise Parliament and provide independent advice for the sector. This proposal was echoed in the Justice Select Committee’s 2023 recommendation, that ‘The [Ministry of Justice] should establish an independent advisory panel on sentencing to consider proposed changes to sentencing policy and to provide advice to ministers’.
This Sentencing Advisory Group could play a similar role to that of the Office for Budget Responsibility (OBR) in other areas of public spending. As we noted in our review submission, if it were not established by the Ministry of Justice, it could instead be accountable to the Justice Select Committee, just as the OBR is to the Treasury Select Committee. In this way it would clearly differ from the Sentencing Council in that it would be independent of the judiciary, and would have no role in deciding policy: it would simply ‘alert Parliamentarians about any likely adverse unintended consequences of legislative proposals’. These analyses would be public, and so available to the media and other stakeholders, promoting greater transparency and discussion about the impact of any policy change.
The Academy is far from alone in having called for such a step. The Prison Reform Trust has suggested that Government should either introduce the new panel or reform the Sentencing Council, but in any case should be required to respond to such advice and give reasons for departing from it. This would be quite a different model from the OBR, but whatever model is preferred, there is apparently a consensus emerging that a more independent and formal champion of evidence-based sentencing policy is much needed.
And this seems especially timely in the context that the legislation will itself have to navigate: a Parliament of which over 50% were elected for the first time in 2024, including all but two members of the Justice Committee. Campaigns for longer sentences often start with MPs, perhaps where a particularly serious offence has taken place in their constituency, and for entirely understandable reasons. But as every MP now knows, having had to vote on early prison release just three weeks after the last election, it is ultimately MPs themselves who will be asked to deal with the consequences if sentencing spirals out of control.
Submissions to the review indicate many other areas of general agreement among justice stakeholders, despite our different mandates and areas of focus. These include not only truisms such as the need to support the Probation Service and use technology more widely and creatively, but also innovations such as the expansion of deferred sentencing.
However, if the final proposals are as bold as the interim report seems to indicate, in that they aim not only to relieve the unsustainable pressure on prisons but to change the nature of the debate for good, then we may be on the cusp of perhaps the most significant piece of sentencing legislation for a generation.
