With prison populations at crisis levels, Jon Scott considers the role of community sentences

The propulsion of community sentences into the media glare was inevitable given the over-population crisis currently afflicting prisons in England and Wales and the Lord Chief Justice’s recent, well-publicised undercover stint to test the system.


In many ways, it is about time. Community sentences may excite far less debate than prisons, and constant exhortations to both judges and magistrates to use them more often might suggest they are relatively rare. But in reality, they form a far larger, if paler, silhouette on the criminal justice landscape than their custodial counterparts. Whereas prison sentences accounted for 7% of all sentences handed down in 2004 (some 106,000 in total), community sentences totalled 13% (202,000).


Indeed, the use of community sentences has increased by more than half since 1996 – the figure is more like 70% for women, as fewer female offenders pose a great threat to the public – and today’s criminal justice climate is conducive to further growth.


The Home Office insists that ‘community sentencing is much more likely to rehabilitate offenders’ and has set a target of ten million unpaid work hours to be completed annually by 2011 as part of its five-year strategy to reduce re-offending. That is double the figure for 2003, and would not be feasible without heavy use of electronic tagging and voice recognition.


Then there are the compelling arguments to support such growth: the claim by the Howard League for Penal Reform that community sentences are up to 12 times cheaper per day than a prison sentence, for example, or that two-thirds of offenders sentenced to prison lose their jobs, and one-third their homes – collateral damage which inevitably boosts reoffending rates.


Enhancing the appeal still further, at least for judges and magistrates, is the flexibility and greater control community sentences offer. Sentencers have no say in how individual prison sentences are spent, but they have complete control with community sentences. Under the Criminal Justice Act 2003, they can choose from a list of 12 different requirements, ranging from supervision by the Probation Service or exclusion from a specified area, to as many as 300 hours’ unpaid work.


They can also address the root cause of a crime, stipulating treatment for mental health, alcohol or drugs – albeit only with the offender’s consent. Advice recommends that the more serious the offence, the more requirements should be imposed. Of convicted offenders sentenced in the spring or summer of last year, 51% had one requirement, 32% had two, 14% had three and only 2% had four or five.


There is no doubt that community sentences can be complex. But the strict sentencing guidelines of the 2003 Act, accompanied by extensive training, mean that magistrates are comfortable imposing them, says Cindy Barnett, chairwoman of the Magistrates’ Association. ‘All agree prison is a last resort and that a community sentence should be considered for any type of offence dealt with in magistrates’ courts,’ she says.


‘So while there can be regional variations in the disposal of community sentences, this is more often due to a lack of provision in a specific area for the kind of sentence envisaged. Treatment for a woman with mental health problems, for example, might simply not be available in one area. So the magistrate must find some other solution.’


There is also anecdotal evidence that some elements of community sentences, such as unpaid work, have been carried out either late or not at all, thereby blunting magistrates’ enthusiasm. ‘Yes, that is a concern,’ says leading criminal law solicitor Anthony Edwards, senior partner of east London law firm TV Edwards and a member of the Sentencing Guidelines Council. ‘Unfortunately we’re in a Catch-22, because we’re having to spend money on prison places – and now on police cells – and that is draining money away from community sentences.’


Blunted enthusiasm may also explain the odd reluctance by the judiciary to use a community sentence. One solicitor recalls that mere days after the Lord Chief Justice’s speech at Mansion House in July – in which Lord Phillips extolled the virtues of community sentences – his client’s appeal against a 28-day custodial sentence for one breach of bail was upheld.


Yet these are the exceptions. A broad consensus that community sentences deserve their place in the criminal justice toolbox clearly does exist, and it includes criminal lawyers. ‘Any punishment must be proportionate to the crime, and a significant number of crimes just do not merit a custodial sentence,’ says Andrew Keogh, a partner at national criminal law firm Tuckers. ‘And as long as the person does not have an atrocious record with 15 previous convictions, a community sentence may be suitable – irrespective of whether the person is likely to reoffend or not,’ he says.


As for the charge that community sentences are soft, Mr Keogh believes that most of his clients would disagree. ‘They certainly do take them seriously these days, and that’s because there has been a fundamental shift in the way the Probation Service runs them’, he says. ‘Five years ago, your first breach of a community sentence would incur little response. Now, though, you are returned straight to court.’ He adds drily: ‘But it’s still not going to make a person with a severe drug habit bounce out of bed at seven o’clock.’ Sure enough, the highest incidence of breaches is among those on drug treatment and testing orders.


The clients of Rodney Warren, founding partner of the eponymous Eastbourne-based criminal law firm, share a wariness of community sentences: ‘Faced with a choice in court between prison and a community sentence, the latter is almost always perceived to be more pleasant,’ says Mr Warren, who is also director of the Criminal Law Solicitors Association. ‘This opinion only changes a few days later when my clients report to their supervisor, and it dawns on them that complying with the order may actually be quite difficult. Indeed, the failure rate is high because people just cannot cope with the pressure of doing work.’


Indeed, Mr Warren adds that discussions with clients who have breached an order often reveal a new-found fondness for custodial sentences. ‘Many decide they just want to get the sentence out of the way,’ he says.


Short custodial sentences may do this, but they are notorious for achieving little else. Yet we should not regard community sentences


as the holy grail either, says Mr Keogh. ‘If you look at the reoffending rates, community sentences are no more effective than prison sentences in terms of recidivism,’ he says. ‘Do I have clients who have served a community sentence ring me up saying they are now going on the straight and narrow? No, I don’t.’


Indeed, straight comparisons between reoffending rates for community and prison sentences are not only difficult to find but also ‘a bit simplistic’, according to Mr Edwards. So the Home Office study of offenders in 2002 which found that those serving community sentences were 14% more likely to reoffend within two years compared to those sentenced to prison should be treated with caution, due to disparities in the types of offence and number of previous convictions.


Similarly, the fabled nine out of ten persistent young offenders on the government’s £98 million flagship Intensive Supervision and Surveillance Programme who reoffended within two years (on average committing seven crimes) do not necessarily signal the scheme’s failure, argues the Youth Justice Board, because the youngsters were committing fewer and less serious crimes. A Home Office research programme is investigating this area further.


For Mr Keogh, though, simple scrutiny of either custodial or community sentences’ reoffending rates misses the fundamental point. The real way to stop reoffending, he suggests, is to stop the miserable cycle involving people who live in communities that have been failed. ‘We are now into the second or third generation of people who are totally disenfranchised from the rest of society, with no education, decent housing or proper role models,’ he says.


He adds: ‘Yes, it is easy to condemn criminals, especially those who commit the more acquisitive crimes, which call for some sort of planning. But ask the vast majority whether they would swap their life for mine, and I suspect almost all of them would.’


Jon Scott is a freelance journalist