No time to lose on sentencing reform

There was only one new policy announcement in Shabana Mahmood’s party conference speech last week. The justice secretary will be setting up a Women’s Justice Board ‘to reduce the number of women going to prison’.

We can expect a strategy in the spring. ‘The strategy will… focus on enhancing alternatives to prison, such as community sentences and residential women’s centres,’ the Ministry of Justice said.

‘Only around one-third of female offenders sentenced to custody have committed a violent offence and prisons are not working to rehabilitate this group,’ the government added, ‘with women serving short custodial sentences significantly more likely to reoffend than those serving community sentences.’

But Mahmood seems to recognise the limits of boards and strategies. So her department has been flying a number of kites over the past few days to see which, if any, take off. Virtually all offences apply equally to male and female offenders. But there are a couple that are more likely to be committed by women.

So the government is thinking of decriminalising non-payment of the television licence fee. Fines are currently issued under the single justice procedure and failure to pay them can lead to imprisonment.

Another idea floated in the press is to send fewer shoplifters to prison. But that seems inconsistent with the home secretary’s promise to reverse legislation enacted a decade ago that has led to fewer prosecutions for theft from stores. Unless a defendant elects trial by jury, shoplifting of goods worth less than £200 is triable only in the magistrates’ courts.

It is encouraging to see ministers talking about reducing the number of women in prison. But why stop there? We would make a much bigger dent in the prison population by rehabilitating male prisoners too.

That seems to be the thinking behind a review of sentencing policy that ‘will commence as soon as it can’, a justice minister promised MPs on 10 September. The names of two former MPs were floated as potential chairs of the review: Lord Blunkett (Tony Blair’s home secretary from 2001 to 2004) and David Gauke (Theresa May’s justice secretary from 2018 to 2019).

Blunkett has long repented for his sin in introducing imprisonment for public protection – the indefinite IPP sentences that are still causing problems 12 years after the courts stopped passing them. But I have not heard him express any regret for raising the minimum terms to be served by murderers, thereby driving up sentences for other serious crimes.

So Gauke, a much more liberal figure than Blunkett, is tipped for the job. ‘There is a very strong case,’ Gauke said in 2019, ‘to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place a robust community order regime.’

He believed we were ‘nearing a time when a combination of technology and radical thinking will make it possible for much more intensive and restrictive conditions to be applied in more creative and fundamental ways outside of prison’ – and that was five years ago.

‘Why,’ he asked, ‘would we spend taxpayer money doing what we know doesn’t work and, indeed, that makes us less safe?’

That view is widely shared. Last month, we saw radical proposals from five former judges who have more experience in this topic than anyone else.

Lord Woolf, Lord Phillips of Worth Matravers, Lord Thomas of Cwmgiedd, Lord Burnett of Maldon and Sir Brian Leveson called on the government to initiate a planned release of selected prisoners. During the half-century or more that they had been involved in the law, sentences had approximately doubled in length and so had the prison population.

That ‘sentence inflation’ could not be justified, they argued. Instead, we should be exploring ‘accelerated routes out of custody’.

And that’s just what Mahmood appears to be doing. Press reports last week said she and her prisons minister might visit Texas to see a scheme under which prisoners can earn time off their sentences if they behave well and take part in rehabilitation schemes. Texas, we are told, began reducing its prison population in 2007 when it had no room for new inmates.

Stories such as these are used by ministers to test the water. If there is a public outcry, they can be dismissed as uninformed speculation. But if newspapers such as the Mail and the Telegraph decide not to campaign against a review led by a former Conservative – even one who left his party rather than vote for a no-deal Brexit – then the prime minister may be emboldened to support reforms that are as inevitable as they are unpopular.

Before the general election, I argued here that reducing the prison population would unlock the funding needed to repair our broken criminal justice system. There is now no time to lose.