Swifter justice relies on radical reforms

Government legislation to deal with the prisons crisis is to be introduced in July, according to David Gauke. That date, mentioned by the former justice secretary to Tim Owen and Ken Macdonald on their Double Jeopardy podcast, ties in with my own information. I was told to expect two bills in the summer – one to implement Gauke’s recommendations on sentencing and a second that will give effect to Sir Brian Leveson’s proposals for reforming the criminal courts of England and Wales.

Nobody is suggesting that what are intended to be ‘once-in-a-generation’ changes should be rushed through parliament and I would not expect the reforms to become law before next year. But the government is already well aware of its options and is relying on Gauke and Leveson to provide the necessary cover for measures that might otherwise be seen as too challenging.

That is clear from Gauke’s recent paper on history and trends in sentencing. Over the past 30 years, he observed, successive governments had lengthened prison sentences substantially.

‘It is an approach that has emphasised the importance of punishment understood primarily as incarceration – an important aspect of sentencing policy – but has been insufficiently focused on the most effective ways to reduce crime,’ the former Conservative minister wrote in a foreword. ‘The rise in the prison population, for example, has meant that resources have been diverted away from activities that could reduce reoffending.’

Gauke’s paper also explains how Texas managed to reduce its prison population from more than 152,000 in 2007 to around 129,000 in 2023, allowing the state to close 16 prisons. Non-violent offenders received lower sentences or alternatives to custody. And increased funding allowed probation services to provide non-custodial sentences instead of a return to prison for technical violations, such as late attendance at parole meetings.

After publishing his paper, Gauke visited a Texan prison with the justice secretary Shabana Mahmood. Correspondents from The Times and the Telegraph, who travelled with them, were enthusiastic. The Mail, which did not join the trip, found a criminologist who said the government could not simply copy across elements of the Texan scheme.

Mahmood’s big idea, it seems, is to end automatic early release. Instead, offenders will have to earn their freedom through ‘good behaviour credits’. At present, according to The Times, up to 70% of prisoners are released on licence after serving 40%, 50% or 66% of a fixed-term sentence. They have no incentive to use their time productively. By contrast, prisoners in Texas can serve as little as 25% of their sentence behind bars if they stay out of trouble and enrol in education, vocational programmes or rehabilitative courses.

The idea of prisoners tackling their addictions in prison and working to earn their release is politically attractive. But the flaws are obvious.

First, it will take some years before our own prisons can provide sufficient work and training. Resources will not be available unless the prison population is slimmed down.

More importantly, ministers cannot run the risk of those now in prison being detained for a day longer than they are currently scheduled to serve behind bars. It was only by allowing automatic release after offenders had served just 40% of their sentences that prisons could continue accepting those sent to them by the courts. More than doubling the period to be served by those unwilling or unable to comply with new requirements would be unthinkable.

A dose of reality was offered by Gauke, who told the Telegraph that the Texan good-behaviour model could tackle overcrowding if applied to longer-term prisoners.

This makes much more sense. Some prisoners who were sentenced to life imprisonment as teenagers for murdering other young men have completed all

the available prison courses by the time they reach their late 20s or early 30s. They should surely be given the chance to demonstrate that they can safely be released on licence.

A report this week from the Commons public accounts committee about the backlog of cases in the Crown court – more than 73,000 at the end of last year – criticises Mahmood over her decision to wait for Leveson’s report before implementing fundamental reforms. ‘The Ministry of Justice seems over-reliant on the future report of the Leveson review,’ it says, ‘which will delay the implementation of reforms by many months.’

This seems a little unfair. MPs based their findings on what they had been told in early January by senior civil servants, who naturally gave nothing away about the government’s plan to introduce legislation before the summer recess. And the committee complained about a lack of accurate caseload data – not knowing that obtaining reliable information is one of the key challenges Leveson has set himself.

Mahmood has come up with increased funding for the courts. But, as she acknowledged this week, swifter justice depends on radical reforms.

joshua@rozenberg.net