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The first King’s Speech of the Carolean era has seen the Conservative Government announce legislation designed to establish a tougher sentencing regime on serious and dangerous criminals with the introduction of whole life sentences for those convicted of a murder involving rape or an act of sadism, and ‘whole time terms’ for those convicted of rape – which means that rather than being released under licence after either half or two-thirds of their sentence, those convicted of rape will serve the entire duration of their sentence behind bars.
The political subtext of these announcements is clear: this Government wants to portray itself as being uncompromising on crime and put as much ‘clear blue water’ between itself and the Labour opposition as it can.
For those who actually work in the criminal justice system, the announcement of these supposedly ‘muscular’ sentencing proposals will provoke a reaction ranging from a weary déjà vu to actual terror at the potential repercussions of treating dangerous offenders in a way that could see them released from prison sooner and without adequate supervision.
The existing sentence regime was set out relatively recently in the Sentencing Act 2020. For a government not renowned for its skill in enacting good and lasting statute, it was without doubt a legislative highlight.
The Act codifies sentencing in a way that has never been achieved in the UK before and acknowledges the role of the existing sentencing framework, the Sentencing Council’s guidance, and the autonomy of the Judiciary. The Sentencing Code, as it is known, has established a sentencing framework where lawyers, defendants and victims of crime can be confident in the way in which the process will be conducted and the likely punishment for those convicted of a crime. Its transparent and logical approach to sentencing has been lauded by most of those involved in the criminal justice system.
These new proposals could not be further removed from that Act’s sensible and articulate approach; where the Sentencing Act recognised the complex nature of offending and the need for care, these new proposals are a return to the gut wrench populism that has blighted rather than enhanced our system of justice for a generation.
For most people violent and sexual crime is, thankfully, an abstract concept, something that is experienced via the media; we only hear about the most horrific examples of these crimes, and never in the type of detail that is set out in courtroom before a sentencing judge or jury. We hear the lurid details rather than the often mundane or tragic realities of such crimes. And, understandably, hearing about a horrible violent rape or murder evokes an instant feeling of revulsion which demands the sugar rush of a hard retributive sentence. It’s why calls for ‘life should mean life’ and the challenge to early release for prisoners are always met with populist approval. It’s an easy vote winner.
But is it good policy?
For those of us who have immersed ourselves in the world of crime as part of the criminal justice system, it is clear that an immediate and instinctive response to criminal acts is unhelpful. Of course, no one wants to treat rape or paedophilia or murder lightly, but the journey that an individual has gone on before they have committed such an act is a vital consideration when setting a sentence that will adequately and fairly punish them, whilst protecting the public by going as far as possible towards ensuring that they don’t commit the offence again.
At present, every judge has the power to sentence a rapist or murderer to life imprisonment – and there are times when such a sentence is inevitable and correct. In addition, since 2003, courts have also been able to impose extended sentences for public protection; and although it is right that courts have those powers, there is little evidence to suggest that lengthy and draconian sentences lead to a reduction in sexual or violent offending.
At present, judges sentencing those convicted of rape or serious violence do so with the assistance of the Sentencing Council guidance for those specific offences. The Sentencing Council is an austere and respected group of academics, criminal lawyers, and judges with a wealth of experience in criminology, the law and sentencing. They set out parameters which a sentencing judge will consider when determining a sentence and in particular the harm caused by the defendant and his culpability. They will then consider other relevant elements before setting the sentence.
Most sexual offenders will currently serve two thirds of that sentence in prison before being released upon licence. If this system is to work, then the time spent behind bars must coincide with rigorous programmes of rehabilitation and reform, whilst any release must be to a place where their progress can be monitored by the probation service and specially assigned police officers. This ensures that a dangerous offender is punished, rehabilitated, and then monitored for the well-being of the community.
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Sadly, the massive cuts to the budgets of the probation service, police, and local authorities, means that upon release, prisoners are often placed in unsuitable accommodation with little effective supervision or help, and it is this, rather than the imposition of soft or lenient prison sentences that leads to increased rates of recidivism.
The implications of ‘whole time’ sentencing for sexual offenders is more complicated than the headline suggests.
In law, a judge must take into account the principle of totality when sentencing while the Court of Appeal, if considering whether a sentence is correct, will consider if the sentence passed is manifestly excessive. Under the new proposals, criminal barristers in every court in the land will be submitting on behalf of their client that the judge should take into account, as part of the principal of totality, the release date when passing the sentence of imprisonment; and that because of new proposals a sentence that would have once seen a defendant serve eight years, for example, jump to 12 years, is manifestly excessive.
Time will tell whether this will be an effective submission and whether the Court of Appeal would allow judges to take into account the likely release date from the prison sentence, but there is a very real prospect that the actual impact of making a defendant serve every day of the sentence passed by a court will actually lead to judge’s passing shorter sentences for the same offences than was previously the case.
Under the proposals unveiled in the King’s Speech rather than pass the 12-year sentence, most judges will, because of the principle of totality, pass a sentence which is less than that – but of course, the difference will be that at the end of the sentence, the prisoner, rather than be released upon licence with supervision and control, will just be set free into the community where they can simply disappear.
In addition, such a change to the way serious offenders are sentenced will put even more pressure on the criminal justice system. The prisons, which are already heaving under the weight of previous attempts by governments to appear ‘tough of crime’, will be bursting; whilst the courts, which are already dealing with a massive backlog of undetermined criminal cases, will be unable to cope with the weight of trials being run by defendants who would rather take their chance in front of a jury than plead guilty and be sentenced to years of prison time. Inevitably, the strain on funding will lead to further cuts to the probation service and the rehabilitative courses that are available to prisoners – which will mean that those prisoners being set free without supervision will be less likely to have engaged in serious rehabilitative work during their sentence.
As such, what this seemingly robust policy will achieve is a further diminution of our criminal justice system and the real possibility that dangerous offenders will actually end up being released from prison sooner and without any system in place to keep them under supervision.
If the Conservative Party really wants to address crime, then it is the chronic underfunding of the Criminal Justice System rather than knee-jerk policies that are designed as red meat for their party members and the readers of right-wing newspapers, that they should be addressing.