In depth: Gauke's sentencing review - what he should recommend

When the government announced a sentencing review in October, led by Conservative former lord chancellor David Gauke (pictured), the prison population was bursting at the seams. Two months later, the government announced a ‘once-in-a-generation’ review of the criminal courts, led by Sir Brian Leveson, to cut the record case backlog.

Recommendations from both will land on justice secretary Shabana Mahmood’s desk this spring. Whatever she pursues, the reviews will need to complement each other. Gauke is expected to present alternatives to custody, but Leveson will present reforms that could see more people currently stuck in the backlog head to prison.

While the government is committed to increasing prison spaces, the National Audit Office says current expansion plans will not meet demand. The shortfall is expected to reach 12,400 places by the end of 2027.

Greater use of non-custodial punishments will have to be part of the solution to end the prison crisis. Gauke, currently sifting through responses to his call for evidence, has received plenty of suggestions.

The Bar Council recommends ‘creative use’ of punishment – a deprivation of liberty that also benefits society. For instance, offenders could be required to complete short apprenticeships or trade qualifications that go beyond the hours currently available for unpaid work but can be remunerated at a basic level. Offenders could be excluded from pubs or sporting events, which ‘may constitute a significant deprivation of liberty in the short term when paired with others’.

'A greater use of 20-hour curfews as a direct alternative to custody would have a variety of benefits, including the cost of a prison place'

Bar Council

Suspended sentence orders should have an education requirement attached to them, the Bar Council says. ‘This will mean that more convicted defendants who have had limited education in the past will be able to improve their situation in the short term, perhaps inspire some to continue education after the order, and hopefully even attain qualifications, improving their employment prospects and reducing the risk of recidivism.’

The representative body also suggests restrictions similar to those imposed during Covid lockdowns.

‘A greater use of 20-hour curfews as a direct alternative to custody would have a variety of benefits, including the cost of a prison place (which at present practically means the much greater cost of actually constructing a prison),’ it adds. ‘Alternatively, a constructive use of weekend curfews, which would permit a Monday-Friday job but prevent socialising, could be considered, again as a direct alternative to custody.’

In its response, the Criminal Bar Association notes that the number of people recalled to prison for breaching licence conditions has grown significantly in recent years.

Meanwhile, the Law Society suggests that judicial involvement in the system for recalling people to prison could prevent unnecessary congestion: ‘A requirement for judicial oversight of recalls could prevent at least some unnecessary recalls that currently clog up prisons, where the Probation Service initiates the recall but then it transpires that the breach was not as serious as first appeared or that risk can be managed in the community with alternative provision in place.

‘Practitioners have found that recalls may often happen when an allocated probation officer is away or following an arrest that is later subject to no further action. While executive release is possible, it is rarely exercised and Parole Board delays now mean that people will often spend many months, sometimes years, in prison awaiting the conclusion of their review.’

The Society suggests that the magistrates’ court could remand a person to return in a week, with enquiries made in the meantime to establish the facts of the alleged breach, and whether the recall is necessary. If it isn’t, the court could order the person to be re-released.

Other suggestions for Gauke include a presumption that sentences up to two years in custody are served in the community on an electronic tag. Another would increase the threshold for suspended sentences from two years to three. But underpinning the solution is the need for further investment.

As Society president and criminal law practitioner Richard Atkinson told the Gazette, the government must ensure there are enough probation officers to deal with an increased non-custodial caseload. Prison law funding will need to be increased to ensure there are enough solicitors to advise prisoners, to allow for their timely and appropriate release, and to ensure the finite resource of prison places is used effectively.

The government has repeatedly said it inherited a crisis. Ending it requires bold decisions.