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The sentencing white paper: tough on crime but tough enough on the causes?

Penelope Gibbs
18 Sep 2020

The sentencing white paper – actually called “A Smarter Approach to Sentencing” is a curious ragbag of disparate ideas, good and bad. It seems to have been influenced by two key drivers – the desire to court public opinion, and the desire to create a more effective system. There is an inherent tension between these, hence the veering between punitive and rehabilitative. Though the government would say they are complementary.

There are tons of policies in the paper. But there isn’t over-riding strategy – a theory of change. Does the government think punishment will reduce crime? How does that work? I’m not even sure about this statement from an MoJ tweet: “#Sentencing is the way victims, the public and offenders see justice being done”. I think most victims want a crime to be resolved, to get authorities and the person who caused the harm to acknowledge the damage and pain caused, and for no one (including themselves) to be harmed similarly in the future. This may involve prosecution, getting a conviction and a punitive sentence, but justice for victims doesn’t always mean that, even in the case of very serious crimes like rape.

The best evidence suggests that the means to prevent crime lie mainly outside the criminal justice system. We could stop many crimes by designing it out and by improving the support given to those at risk through difficulties in housing, health, employment, education and family relationships. This was acknowledged by the Lord Chancellor when he launched his proposals: “The drivers are clear – it’s a lack of prospects, chaotic lifestyles, ill-health and addiction. All these underlying causes of crime can so often be addressed much more effectively by looking beyond custody, to the right interventions that really will support offenders to change their ways”.

Unfortunately, the most powerful interventions often have nothing to do with sentencing. If people have no home on leaving prison, they are more likely to commit crime. This white paper can do nothing to resolve that problem. It refers to housing, but the interventions put forward are all formal criminal justice measures. Only when we can force or incentivise social housing providers to help those who have committed crime can we hope to reduce offending. The most straightforward way to do this would be to delegate criminal justice budgets to local authorities or PCCs. But I see little enthusiasm in this government for localisation.

There are some good things in the white paper, some of which we have campaigned on for years – proposals to promote diversion from prosecution, to reduce the number of children unnecessarily remanded and changes to criminal records disclosure law.

The government’s commitment to the greater use of out of court disposals and approaches is to be applauded. We have been banging this drum for a while because court does not always deliver justice, and diverting from court can lead to better outcomes. Most of those convicted in magistrates’ courts are sentenced to pay a fine, which they may not be able to pay. The victim may not even be told the result of the case. Government research suggests that victims are just as, or often more satisfied by, the police taking positive action but not prosecuting. Police can refer those who commit crime to services and/or give them an out of court disposal – a caution or community resolution. These sanctions are formal, but don’t involve going to court and, in the case of community resolutions, don’t involve getting a criminal record. Police demand that those who accept an OOCD make amends, or undertake a programme or pay compensation. Such sanctions are much more likely to make a difference than a sentence of paying a fine.

They may also be a route to people getting the help they need from non CJS agencies. Some police forces have hired staff dedicated to managing out of court disposals. One manager told us of someone with severe mental illness who accepted a deferred prosecution for criminal damage. The manager spent most of their time helping him get the medication they needed, advocating for him to get housing and helping him with his finances. This help is what she judged would make the most difference.

I’m not convinced the measures the government have brought in are quite the right ones to promote the use of out of court disposals. They enforce consistency, but may suppress local innovation and limit the choice available to police officers. But its a big step in the right direction. Its a pity that there is no public consultation process for all these ideas. Transform Justice will batter down the doors of the MoJ to give our views, but the MoJ will not benefit from the wisdom of crowds or of random individuals. Unfortunately, this government prefers to gather public views on policy through focus groups than through traditional public consultation.