I tread incredibly warily in this space. Greater minds than mine turned on Andrew Adonis this week for suggesting that judges bear (some) responsibility for the rise in the prison population in the the last twenty years. The legal twittersphere exploded with outrage against Lord Adonis pointing out that

1. Government proposes new criminal laws, which parliament passes, and successive governments have introduced new offences and more punitive sanctions eg mandatory imprisonment for being caught with a knife twice
2. Judges simply abide by the laws passed by parliament. Using only the discretion afforded them by parliament.
3. The Sentencing Council which produces guidelines for sentencers (which the twittersphere acknowledged do have an influence on the prison population) is a body set up, run by and scrutinised by government

Jeremy Wright, Attorney General, on Unreliable Evidence this week claimed that the rise in prison population was partly due to offences becoming more serious in general and due to a rise in sex offences.

Andrew Adonis’s tweets prompted legal ire, but also some interesting critiques of the contention that judges have no responsibility for the rise in the prison population.  My colleague Rob Allen (like myself not a lawyer) pointed to a seminal study by Professor Mike Hough that suggested the rise in the prison population up to 2003 “came about through the interplay of an increasingly punitive climate of political and media debate about punishment; legislative changes and new guideline judgements; and sentencers’ perceptions of changes in patterns of offending. So everyone’s to blame” (quote from Rob Allen’s blog).

I am an outsider, but have read about and discussed sentencing a lot (and sat as a magistrate). I, like Professor Hough, Lord Adonis and Rob Allen, think its too simplistic to lay the blame for the rise in the prison population solely at the door of successive governments.

There is no evidence (either way) that the kind of offences now in front of the courts are more serious than they used to be. The people convicted may have more serious records, but that is different and, if so, maybe points to a failure in rehabilitation services. Instead there is good evidence (from the MoJ itself) that people are being punished more severely for the same crimes – sentences are getting more punitive across the board, and it is sentence inflation, not more people being imprisoned, which is causing the prison population to rise.

So who or what is is to blame for sentence inflation? Government rhetoric and the media have an influence on judges (as Professor Hough pointed out) and a body run by judges also has a profound influence – the Sentencing Council. This produces guidelines which its own research says have proved to be inflationary. There was a bit of discussion on twitter this week about the Council along the lines that since government set it up and it was subject to parliamentary scrutiny, it was a government controlled body, for which the government was responsible. This is not quite the case, as a long twitter thread by Blair Gibbs, former policy advisor to Michael Gove, explained:

“The row between the UK legal community and Andrew Adonis must be the first to involve the Sentencing Council – an aloof and curious outfit…Created to promote “consistency” in sentencing behaviour, it was never clear who the SC answered to, and what impact they were having…They set their own work plan, met privately and seemed ambivalent about whether the guidelines they set out were actually necessary…Their consultations were to show they’d “listened” & they treated the Justice Secretary as just another consultee. Wrote to him as such!…They used [the Ministry of Justice’s] own analysts to calculate the impact of the guidelines they wanted – incl. one shocker requiring 000s more prison places!…Research on the Sentencing Council by Rob Allen suggests their goal of ‘consistency’ may have led to a levelling up of avg. prison terms…When a steadfastly ‘independent’ body plans changes that incur major public cost, they must be accountable – and the Sentencing Council isn’t…Since 2015 all Ministers worked hard to avoid sentencing changes that drove up the prison population – the Sentencing Council was no help here…An independent review of whether the Sentencing Council has worked, and whether it should stay, is sorely needed. With new data please!”

Blair says the Sentencing Council was not accountable to government and did not help in trying to prevent sentence inflation. So is it accountable otherwise? It does formally consult on all its proposed guidelines. But as an organisation, it is not accountable. The Chair has appeared only twice (I think) in front of the Commons Justice Committee in seven years. More importantly, the body itself has not been subject to review. As an arm’s length body, the Sentencing Council would normally have been subject to a formal evaluation, a so-called triennial review-along the lines of that carried out on the Parole Board, and many other organisations.  But the government exempted it from this process “due to its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”. Does the government thinks it cannot scrutinise a body “run by” judges? So who should it be accountable to? It is not clear, but this confusion means that the Council has not been subject to official scrutiny since it started work in 2010. Given strong indications that it is playing some (unwitting) role in sentence inflation, that is a pity.

To his credit Jeremy Wright did admit on Unreliable Evidence that government policy was partly responsible for the rise in the prison population. But judges have discretion, and when they use that discretion to sentence at the top end of the guidelines (as the Sentencing Council research suggests they often do), this has an inevitable effect on the prison population.