From this week, offenders convicted in the magistrates’ courts are less likely to go to prison. That is not because of any change in the sentencing guidelines. But the maximum sentence magistrates can impose is 12 months, and under section 1 of the Sentencing Act 2026, which takes effect on 22 March, sentences of not more than 12 months must be suspended unless there are ‘exceptional circumstances’ – not defined – relating to the offence or the offender. There are limited exceptions.
We can also expect to see more offenders receiving suspended sentences in the Crown court. At present, a sentence of more than two years cannot be suspended. Section 2 of the act, which also applies to those convicted from next week, allows courts to suspend sentences of up to three years.
If the offender commits a further offence during the suspension period or fails to comply with a community requirement, the court must activate the suspended sentence unless it would be unjust to do so. But, for the time being at least, these reforms can be expected to slow the rise in prisoner numbers.
As a result, we shall no doubt be seeing more newspaper reports of offenders ‘walking free’ after being convicted of serious criminal offences. What tends to be overlooked is that they will have to comply with other conditions. Rehabilitative requirements may be more onerous for some offenders than a short spell in prison.
As David Gauke told the government in his sentencing report last May, ‘short custodial sentences often fall short in providing meaningful rehabilitation to offenders, have a limited deterrent effect and come with high costs’. Sentences of less than 12 months, the former justice secretary added, ‘were associated with higher proven reoffending than suspended sentence orders and community orders’. That was why Gauke recommended the changes that will take effect next week.
He also recommended that courts should be allowed to defer sentencing for up to 12 months, twice the current period. Deferred sentences give offenders the opportunity to avoid prison by demonstrating that they are complying with conditions set by the court, such as restorative justice requirements or attending treatment programmes. That reform also takes effect on 22 March.
But the Sentencing Act is not just about keeping criminals out of prison. The most serious offenders will not be released any sooner and some may serve longer.
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At present, the starting point in sentencing an offender for the murder of a police officer or prison officer in the course of their duty is a whole life order. That will now include probation officers. From Sunday, it will also apply to murders of former police, prison or probation officers where the offence was motivated by something done by victims in the course of their duties.
Section 7 extends what are called sentences for offenders of particular concern to offences involving national security. These sentences involve a custodial period followed by a period on licence.
Part 2 of the act deals with the management of sentenced offenders. It introduces what ministers call an ‘earned progression model… that will see prisoners who behave badly spend longer behind bars’. But that will not be brought in before the autumn.
The most controversial change involves the Sentencing Council. Section 20 allows the lord chancellor to withhold consent for draft sentencing guidelines issued by the council if the minister considers that it is necessary to do so in order to maintain public confidence in the criminal justice system.
At her news conference last week, I asked the lady chief justice whether she was worried that giving the justice secretary a veto over sentencing levels for specific offences would politicise the system.
‘I think everything will depend on how the clauses are operated,’ Baroness Carr replied. ‘If they are operated in a constitutionally acceptable way, I do not see a real threat to the independence of the [sentencing] council. There is the potential for it if things are not operated in the right way but, at the moment, I am not troubled by it.’
She continued: ‘I’m on record as saying I regret being in the position we’re in with the new legislation. But that’s a different point because we are now where we are, and I think we’re all determined to make it work.’
She also reminded reporters – and, through them, ministers – of the ‘incredibly important role that these guidelines play’. They enabled barristers and solicitors to advise their clients of the sentences they could expect. An offender who knows the likely penalty is more likely to plead guilty at an early stage and save court time. So there were ‘all sorts of benefits from the guidelines’.
Carr’s message to David Lammy was unspoken but entirely clear: if you want to reduce court backlogs, don’t start meddling with sentencing.
joshua@rozenberg.net
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