Sentence construction

What is the point of the Ministry of Justice? Announcing its creation in 2007, Tony Blair said he had decided to transfer responsibility for criminal law and sentencing policy – together with prisons and probation – from the home secretary to the lord chancellor, whose department was already responsible for the judiciary.

‘It will help to bring together management of the criminal justice system,’ the prime minister explained, ‘meaning that once a suspect has been charged their journey through the courts, and if necessary prison and probation, can be managed seamlessly.’

The judges immediately smelled a rat. Lord Phillips of Worth Matravers, lord chief justice at the time, was concerned that judges might come under pressure to impose inappropriate sentences because of ‘the continuing problems of prison overcrowding and the availability of resources to provide the sentences imposed by the courts’.

Those fears seem to have been borne out by recent events, with judges reportedly told to delay sentencing hearings because the prisons are full. Last month, the justice secretary promised to legislate ‘for a presumption that custodial sentences of less than 12 months in prison will be suspended and offenders will be punished in the community instead’.

In the meantime, Alex Chalk added, some lower-level offenders would be released up to 18 days early and foreign offenders would be removed from the UK up to 18 months before they were due to be freed. Rapists, on the other hand, would serve their sentences in full.

From the justice secretary’s perspective, this makes sense. Send fewer people to prison for less serious offences. Let short-term prisoners out early. Increase the length of time every rapist will serve, knowing you’ll be long gone before the demand for additional prison capacity becomes a problem. And distract your critics with an undeliverable promise that British prisoners – not just foreign offenders – will serve their sentences in a country where prison staff don’t speak English.

Above all, Chalk might argue, this shows the advantage of letting a single ministry set  criminal justice policy as well as managing prisons: when they are full, you can simply tell judges to stop generating more prisoners. But it’s not so simple – as we see from a report on sentencing and public opinion published last week by the House of Commons justice committee.

The cross-party group usually agrees its reports unanimously and this one is no exception. But its internal contradictions are not buried far beneath the surface. The committee finds that public understanding of sentencing is low but most people support higher sentences. But if people don’t understand how sentencing works, why should we take any notice of what they think?

Research conducted for the committee found that most people thought the average prison sentence in England and Wales had stayed the same or become even shorter since 2012. In fact, says the report, the average custodial sentence length has increased from 14.5 months in 2012 to 21.9 months in 2021.

People thought they understood what a life sentence was. But very few knew that lifers released from prison remained on licence for the rest of their lives. Some thought a licence was some sort of reward, like a licence to drive.

The committee said it was ‘concerning’ that much of the public was unaware of sentencing trends. ‘Low levels of understanding of sentencing has an effect on the quality of public debate on sentencing, which in turn can have an influence on sentencing policy.’

And yet at the same time the committee seemed willing to go along with public ignorance. ‘Our own polling indicates that the majority of the public support further increases to the severity of sentences for the gravest criminal offences,’ the MPs said. ‘We should not assume that these views are based on mistaken assumptions or lack of knowledge of current sentencing practice.’

What’s to be done? There were a few half-hearted kicks at the media. News outlets were misleading the public by reporting that offenders sentenced to life imprisonment were ‘jailed for life’. Weren’t they? Not unless they had received whole-life orders.

There were other suggestions. Judges should publish written sentencing remarks more often. We could even appoint ‘press judges’ to explain other judges’ sentences to the media. Good ideas, but the judiciary is already over-stretched. And do we really need a new advisory panel on sentencing policy?

Ministers must decide how far to go along with public pressure, the MPs concluded. ‘This government, and its successors, need to think carefully about how to engage with public opinion on sentencing.’

But if you control both policy and prisons then it’s really not that difficult. Just keep reminding people of what the former Conservative home secretary Douglas Hurd said more than 30 years ago: ‘prison is an expensive way of making bad people worse’.

joshua@rozenberg.net