The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 will be debated in the House of Commons on Thursday. This draft Statutory Instrument (SI) proposes a reduction in the proportion of most Standard Determinate Sentences (SDS) to be served in custody from 50% to 40%. The accompanying Impact Assessment paints an alarming picture of the situation if this reform is not made: ‘In the short run, this would mean prisons would shortly run out of places and the justice system would no longer be able to function as intended, e.g. the police would be unable to make arrests and the judiciary may not be able to impose immediate custodial sentences’. Bluntly, after years of tinkering with the sentencing framework to increase sentence lengths for the most serious offences and to ensure that offenders sentenced to these lengthier sentences spend a higher proportion of the sentence in custody, we have run out of prison places.
How did we get here? A number of causes have been identified. One can be traced to 2003, when Parliament legislated to increase sentences for many categories of murder. It did so apparently convinced that murder was sufficiently different to other offences for this not to have a wider impact on the sentencing framework. This has subsequently been proved wrong as, necessarily, sentences for other serious offences had to gradually increase over time to ensure that proportionality underpinned the overall framework. More recently, Parliament’s focus has been on increasing the proportion of custodial sentences that offenders convicted of the most serious offences must serve in custody: this has increased from one-half to two-thirds, or even for some offences, the entirety of the sentence. These piecemeal reforms have had a significant impact on the composition of the prison population which today predominantly consists of people serving long sentences.
In the case of ‘less’ serious offences, this SI proposes that some offenders will serve 40% of their sentence in custody. In some cases, it may be much less than this: some people eligible for Home Detention Curfew could serve as little as 20% of their sentence in custody. The reforms will apply to most offenders serving an SDS where automatic release is currently at the halfway stage of the sentence. Therefore this excludes those serving a life sentence, Extended Determinate Sentence or a Sentence for Offenders of Particular Concern and also those serving an SDS for certain violent or sexual offences where release is currently at the two-thirds stage (offences with a maximum penalty of life imprisonment, where the sentence is at least four years). Also excluded on policy grounds are those serving an SDS for sexual offences irrespective of sentence length, serious violent offences with a sentence of at least four years, specified offences linked to domestic abuse, including stalking, irrespective of sentence length, or offences concerning national security. The changes will be introduced in a staggered manner, with an initial commencement date of 10 September 2024 for those serving a sentence of less than five years and a commencement date of 22 October 2024 for those serving a sentence of five years or more. The change will be reviewed in 18 months’ time.
While necessary in the short term, reducing the proportion of time served in prison will likely have adverse longer-term consequences. First, research by the House of Commons Justice Committee has demonstrated widespread public dissatisfaction with sentencing. Research by the Sentencing Academy (and other organisations) has shown that media reporting of sentencing leads to inaccurate public perceptions of sentencing trends. The public have for decades under-estimated the severity of current sentencing practices. Beyond levels of knowledge, allowing prisoners to serve less than half their custodial sentence in prison will lead to even greater public criticism.
Victims too are likely to be demoralised when they learn that an offender sentenced to, say, four years’ imprisonment will actually spend less than half the sentence in prison. Of course, the sentence will continue to run for the full four years when the offender is serving the balance in the community, but the public will not regard this arrangement as constituting a four year prison sentence. In short, the reform will be seen to undermine ‘truth in sentencing’. It is neither wise nor effective to require a prisoner to serve every day of a custodial sentence inside prison, yet a 60:40 ratio will be considered inappropriate by many victims and members of the public.
There is also the question of complexity and arbitrariness. It is unclear why an offender sentenced to an SDS of four years for one offence is suitable for release after serving 40% of the sentence whereas another offender sentenced to an SDS of four years for a different offence must serve two-thirds. In practice, one offender will serve just over 19 months in custody whilst the other serves 32 months. Such a disparity in outcome is difficult to justify. The Sentencing Academy has been cautioning against such arbitrary distinctions as successive legislative reforms in recent years have moved around the release points for certain offences and for certain sentence lengths. At some point, greater coherence needs to be pursued through a simplification of the sentencing framework.
In the medium term, building more prisons is one effective (but costly) answer to running out of prison places. Certainly, replacing many of the dilapidated existing prisons will be beneficial for those offenders whose offending does require a custodial sentence. But beyond this, making the experience of imprisonment more ‘effective’ should be a priority for the new Government. People should come out of prison less, rather than more, likely to commit further offences. At present this is not the case. Re-offending rates are high, and research by the Ministry of Justice (among others) demonstrates that short prison sentences are less effective than community-based punishments in reducing re-offending.
However, adding additional prison capacity simply to stay on top of an increasingly incoherent – and often ineffective – sentencing framework is not the answer. The accompanying Impact Assessment to the SI is a reminder of the extremely high cost of imprisonment: the best estimate of the savings over a 10-year period of this reform is £4 billion (spread roughly equally between savings in prison running costs and a reduction in the number of additional prison places that will need to be constructed). Each prison place currently costs just over £50,000 per annum; consideration of this high cost is largely absent from the debate around increasing sentence lengths and increasing the proportion of sentences to be spent in custody.
If running out of prison places, to the extent that it is mooted that the police may no longer be able to make arrests, does not prompt a wider debate about the sentencing framework then it is hard to imagine what will. At the very least there is a pressing need to determine the extent to which non-custodial sanctions could replace some admissions to custody. There appears to be a consensus that some of the current prison caseload could have been punished adequately by a Community Order or a Suspended Sentence Order. A ‘Penal Audit’ would be one way of determining the percentage of prisoners who could have been diverted to a non-custodial order. An exercise of this kind would involve a review of a sample of prison admissions to determine how many, if any, could have received a non-custodial sentence. At present it is unclear whether 2% or 20% (or something in between) of the prison population could have been sentenced to a community-based disposal.
At the start of the new Parliament, with this prison capacity crisis as the backdrop, we urge the new Government to instigate a full review into a sentencing framework that at present is expensive, often ineffective, and increasingly incoherent. A review would identify ways in which the use of imprisonment, and indeed out-of-court disposals and community-based sentences more generally, could be used more effectively. Whilst the reform proposed by the SI may be unavoidable in the short-term to alleviate a crisis situation, it is not the solution beyond that.
By Dr Jonathan Bild and Professor Julian Roberts
