Only in our mad, mad criminal justice system would you punish someone more severely for not turning up for meetings, than for their original crime. But that is what our courts sometimes do, and what the latest (draft) guidance from the Sentencing Council endorses.
Compliance is criminal justice jargon – it means that someone serving a community sentence abides by the rules and conditions set down by the court. Many feel the credibility and viability of the system depends on strict enforcement of sentences – forcing people to pay their fines, to do the community service hours they committed to do, and to turn up to meetings with their probation officer. Unfortunately many people who have committed crimes find it hard to “comply”. They lead chaotic lives, in which they are not used to turning up anywhere at a particular time. Drug and alcohol addiction, mental health problems, learning difficulties and homelessness are prevalent in this population. These lead to crime, to detection by the police (the organised ones are seldom caught), and to failing to “comply” with sentences.
People who have committed crimes sometimes refuse to accept a community sentence – they would rather go to prison for a short period than try to do a community sentence which they know they will fail.
The criminal justice system grapples with what to do with these chaotic people who miss appointments. Individual probation officers and judges know that many people are fundamentally unsuited to the kind of sentences available, but they are forced to punish the “rule” breakers. Those who breach their community orders are given longer community sentences, or imprisoned or, if the bench is truly enlightened, the conditions of their sentence are made less onorous.
The Sentencing Council for England and Wales is consulting on guidelines for how to sentence breach (non compliance) of community sentences. Our recent report suggests that the Sentencing Council errs in producing guidelines which are not based on evidence of what works. But Council guidelines do usually include an analysis of how the offence is currently sanctioned, and their prediction of the effect of new guidelines on prison numbers. Both these could be better done, but at least they provide an evidence base. The draft guidelines on breach are based on no data at all. There is no information on what happens to defendants who are prosecuted for breach, and thus it is impossible to predict what impact the new guidelines will have on prison places. Partly because of this, the guidelines have not gone down well with penal reformers.
The Howard League is concerned by the focus in the draft guidelines on punishment, and the licence they give to imprison someone for breach even if the original offence was not serious enough to merit custody: “The focus is on the level of sanctions imposed. It is not until page 10 of the guideline that it states that ‘the primary objective of the court is to achieve compliance with a community order’. Throughout the guidelines, there is no consideration at all of the reasons why people are failing to comply with orders”. The Howard League calls for the guidelines to be redrafted. I’d go further. I don’t think its possible to draft sensible guidelines in the absence of any data. Judges may at the moment be confused as to how to sanction someone for breach, but I think I’d rather they used their humanity and their judgement, than that they slavishly follow guidance based on an absence of information, and of insight into why people breach.
Transform Justice’s response to the consultation on sentencing guidelines for breach is here