Custodial sentencing

But when, as will be demonstrated, those receiving custodial sentences find themselves in thehands of a prison system that consistently falls short of both international standardsand its

CHAPTER 9

Custodial sentencing

The aim of this chapter is to examine the law and practice relating to custodialsentences Imprisonment involves deprivation of liberty and is the most onerousand intrusive sentence available in this and other European countries Deprivation

of liberty and incarceration in a punitive institution require special justification Tobegin that process, it is necessary to understand the practical meaning of custodialsentences This depends on the various provisions for calculating the proportion

of the nominal sentence that the offender will spend in custody, on the conditions

in which prisoners are held, and on the terms on which they are later released Thechapter begins with an outline of the state of English prisons It then considersprinciples and policies for the use of custodial sentences, assessing the extent towhich the principle of restraint, the policy of bifurcation or a blurred approach bestcharacterizes English sentencing There is then an analysis of the statutory thresholdfor imposing custody, and also the prevailing approach to long custodial sentences,noting significant changes introduced by the 2003 Act The chapter concludes with

a brief discussion of various groups of prisoners who raise particular issues ofprinciple

The use of incarceration and deprivation of liberty as a punishment raises damental questions of social and penal policy, as well as engaging several individualrights declared by the European Convention on Human Rights In the context ofcriminal justice policy, we should note that the size of the prison population isdetermined, to a considerable extent, by sentencing law and practice; and thatboth the law and sentencing practice seem to be more strongly influenced bypenal policy, political strategy and media pressure than by variations in crimerates

fun-9.1 The state of the prisons

What have been the conditions in English prisons in recent years, and what arethey likely to be in the foreseeable future? The brief survey here looks at trends

in the prison population, at the prison estate and at recent problems in theprisons

255

9.1.1 The prison population

There have been significant changes in the prison population during the last twodecades In 1980 it stood at a little over 42,000; by 1988 it had reached almost 50,000,but it then fell again, to a low of 40,606 in December 1992; from 1993 it rose steeply,reaching 66,000 at the end of 1999, thereafter continuing to rise more slowly tosome 75,000 in April 2004 and again in April 2005 It must be borne in mind thatprisons do not only hold sentenced offenders, and that the figures for the prisonpopulation include prisoners held on remand However, the steep rise in the prisonpopulation since 1993 is almost entirely attributable to an increase in the numbers

of sentenced prisoners held In round figures, some 11,000 of the average number

of 43,000 prisoners held in 1993 were on remand, whereas in 2002 the figure was12,790 out of almost 70,000 Thus, an increasingly high proportion of the prisonpopulation – some five-sixths – consists of sentenced offenders, sent to prison bythe courts

9.1.2 The prison estate

When an offender is sentenced to custody in England and Wales, there are twoadministrative but critical decisions to be taken by the Prison Service The firstdecision is to place the offender in one of the security classifications, from A (highrisk) to D (suitable for open conditions) The security classification of each pris-oner is a ‘continuing responsibility’ of the Prison Service,1 and so it should bereconsidered from time to time It is important not only because it determines therestrictiveness of the regime to which the prisoner will be subject, but also because

it governs the second decision – the allocation of the prisoner to a particular lishment There is a list of factors that should be taken into account in this allocationdecision,2but there is inevitably a significant amount of discretion, often exercisedpurely on grounds of administrative convenience (i.e available space)

estab-According to their security classification, female offenders are sent to open orclosed women’s prisons or, if under 21, to a young offender institution Male youngoffenders go to young offender institutions, whereas adult male prisoners may besent to open or closed prisons, according to their security classification Prisonerssentenced to 18 months or less may serve the whole sentence in a local prison, if theyare not considered suitable for open conditions Prisoners serving longer sentencesare likely to be sent to a ‘training prison’ Regimes differ considerably between localand training prisons, with fewer activities and more time locked in cells at the former.This is partly because local prisons usually hold remand prisoners, whose stay inprison may be relatively short and may involve frequent trips to and from court, andpartly because local prisons tend to be overcrowded, with a consequent difficulty of

1 R v Home Secretary, ex p Duggan [1994] 3 All ER 271.

2 Livingstone, Owen and Macdonald ( 2003 ), p 147; see their ch 4 generally on classification and allocation of prisoners.

9.1 The state of the prisons 257

providing adequate supervision, work etc for all inmates These observations aretaken further in part9.1.3below

Since the early 1990s there has been a substantial expansion in the prison estate Bybuilding new prisons, extending existing institutions and contracting with privateoperators, governments have increased the ‘certified normal accommodation’ ofprison service establishments from over 40,000 to over 60,000 But the rise in thenumber of prisoners has continued to outstrip the supply of places, and thereforethe building programme has not solved some of the endemic problems of Englishprisons

9.1.3 The problems of the prison system3

If sentences of imprisonment are to be justified, the justifications must extend notsimply to depriving an offender of liberty but also to incarcerating the offender

in the particular conditions that obtain in the relevant prison system If Englandand Wales had a prison system that complied fully with all international standardsand with the targets set for the Prison Service itself, custodial sentences would stillrequire strong justification, as indeed the legal framework indicates But when,

as will be demonstrated, those receiving custodial sentences find themselves in thehands of a prison system that consistently falls short of both international standardsand its own targets, the burden of justifying a custodial sentence is a heavy one, andthe length of any sentence calls for close scrutiny

Under prevailing public service arrangements, several ‘Key Performance tors’ are set for the Prison Service each year It is always open to argument whetherthe targets are the most relevant ones, and whether each one is fair In 2003–04 thePrison Service reported that it met its targets on reducing the number of escapes,ensuring that over 8,000 prisoners completed offending behaviour programmes,reducing the number of days lost to staff sickness, increasing the proportion ofminority ethnic staff, increasing the number of prisoners achieving basic skillsawards, ensuring that more prisoners have resettlement arrangements, and ensur-ing the timely arrival of prisoner escorts.4However, it also reported that it failed tomeet its targets on the rate of positive drug tests, increasing the average number ofhours that prisoners spend in purposeful activity, reducing overcrowding, reducingsuicides, increasing the numbers completing sex offender treatment programmes,and reducing the number of serious assaults on staff Recent reports of Her Majesty’sChief Inspector of Prisons present a similar picture of improved performance insome respects and persisting problems in other areas

Indica-Many of the endemic problems stem from the single fact of overcrowding As theChief Inspector put it in her 2003–04 report, ‘the levelling off of the prison popula-tion is, in reality, the difference between a manageable crisis and an unmanageableone’.5Some establishments have been operating at well over their certified normal

3 For fuller discussion, see Cavadino and Dignan ( 2002 ), chs 6, 7 and 8, and Morgan ( 2002 ).

4 Prison Service ( 2004 ), pp 10–11 5 HMCI Prisons ( 2004 ), p 7.

accommodation for several years, with a consequent strain on officers, prisonersand the regime itself Even the figure of ‘certified normal accommodation’ for prisonestablishments as a whole cannot be relied upon, since at any one time there may beempty accommodation in some regions or in some types of establishment (e.g openprisons) while other establishments are over-full In 2003–04 the Chief Inspectorfound Leeds prison holding 1250 prisoners, some 60 per cent above its certifiednormal accommodation, and one wing in Cardiff prison had a certified normalaccommodation of 96 but was holding 184 prisoners.6Thus the overcrowding ofcells constructed for one person remains a feature of local prisons up and downthe country, with the result that many of their inmates – some on short sentences,many on remand – have to submit to unsatisfactory conditions.

In the worst of our overcrowded local prisons, prisoners may spend 23 hours a day

in a shared cell with an unscreened toilet The best locals are working hard to sustainstandards of humanity and respect; but even they are failing to deliver the activityand resettlement opportunities that prisoners need if society is to be protected fromreoffending.7

The European Committee for the Prevention of Torture, Inhuman and DegradingTreatment (CPT) visited four prisons in England and Wales in2001: it observedthat ‘much remains to be done to achieve the objective of holding all prisoners in “asafe, decent and healthy environment”’,8and specifically criticized the conditionsunder which some inmates were held two to a cell measuring 8.5 metres square orless, sometimes without properly partitioned lavatories.9

The reasons for the persistent overcrowding seem to involve a complex mixture

of geographical demands, an excess of accommodation in open institutions, theneed to close wings of some prisons in order to refurbish them, and, of course,the fact that the prison building programme has not kept pace with the number ofpeople sent into custody The effects of overcrowding are felt in a variety of ways,and the implications are well documented Thus in his examination of the causes

of the disturbance at Strangeways Prison, Manchester, in 1990, Lord Woolf foundthat

A large proportion of the inmates were sympathetic to the instigators of the disturbanceand antagonistic towards the Prison Service because of the conditions in which they werehoused at the time at Strangeways As the inmates repeatedly told the Inquiry, if theywere treated like animals they would behave like animals The prison was overcrowded,and the inmates provided with insufficient activities and association.10

The effect of overcrowding on inmate activity is obvious and troubling Inher 2003–04 report the Chief Inspector commented that ‘no local prison that weinspected was able to offer enough proper work and training for its population’ The

6 HMCI Prisons ( 2004 ), p 44 7 HMCI Prisons ( 2003 ), p 3 8 CPT ( 2001 ), p 19.

9 CPT ( 2001 ), p 23; see also p 45 10 Woolf ( 1991 ), para 3.432.

9.1 The state of the prisons 259

reasons included lack of funding, and lack of space and infrastructure ‘Two-thirds

of prisoners at Brixton, and a third at Lincoln, had no work at all; and many of theremainder were under-occupied in routine domestic tasks.’11The CPT commentedadversely on the poor provision of constructive activities for prisoners in its2001

report,12and the Chief Inspector’s observations show that this issue has still notbeen tackled adequately Moreover, it is not solely a problem in local prisons: theChief Inspector found that the provision of work and education in training prisonswas far better than in local prisons, but added that ‘often provision could not matchdemand, and too many prisoners were unemployed, or employed in mundane tasksthat brought no qualifications’.13The Prison Service target was ‘to ensure that pris-oners spend on average at least 24 hours per week engaged in purposeful activity’,and the out-turn was 23.2 hours.14A careful reading of the Chief Inspector’s reportsdemonstrates what a low target this is – taking in both local and training prisons –and how contestable the definition of ‘purposeful activity’ may be

The Prison Service reported that it exceeded its target of ensuring the tion by prisoners of offending behaviour programmes in 2003–04, and fell a littleshort of its target for sex offender treatment programmes There has been muchemphasis on these courses in recent years as a major step towards reducing re-offending among released prisoners However, the Prison Service admits that ‘deliv-ery [of these programmes] on a large scale presents many challenges’, and it refers

comple-to the ‘disappointing evaluation’ of two such programmes The Prison Service isnow said to be assessing ‘what works with whom in order to optimise the impact ofprogrammes’.15Thus whether a numerical target, with similar courses for virtuallyall prisoners, is the right approach needs to be reconsidered

In its2001report the CPT commented adversely on the amount of exercise timemade available to inmates in the prisons it visited: it pointed out that the relevantPrison Rule is worded flexibly, whereas ‘the basic requirement of at least one hour

of outdoor exercise per day is a fundamental safeguard for prisoners’, and mended that the rule should be amended.16It was this kind of shortcoming, allied

recom-to the overcrowding and poor sanitation arrangements, that led the CPT recom-to classifythe conditions in English prisons as ‘inhuman and degrading’ on its first visit in

1992.17We have seen that the Chief Inspector has recently commented adversely

on the fact that some inmates of local prisons still spend 23 hours per day in theircells.18Section 6 of the Human Rights Act 1998 now requires all public authori-ties, including the Prison Service, to ensure that their activities comply with theEuropean Convention on Human Rights Of particular importance is Article 3,

11 HMCI Prisons ( 2004 ), p 44 12 CPT ( 2001 ), p 45.

13 HMCI Prisons ( 2004 ), p 46 (giving details of training prisons with insufficient activity) On p 8 it

is said that only 5 of the 18 training prisons inspected were providing sufficient work and education.

Cf HMCI Prisons ( 1997 ), p 11, for similar comments some years earlier.

14 Prison Service ( 2004 ), p 10 15 Prison Service ( 2004 ), pp 31–2.

16 CPT ( 2001 ), pp 25, 45 17 CPT ( 1992 ).

18 See n 7 above, and accompanying text.

which prohibits torture and inhuman or degrading treatment or punishment.Article 3 itself does not set out the standards to be attained, but the EuropeanMinimum Standards do so, and the Strasbourg Court (and therefore, one surmises,the courts of this country) would be expected to refer to those standards whenconsidering issues of inhuman or degrading treatment The only attempt by anindividual prisoner to go to Strasbourg to establish a violation of Article 3 throughBritish prison conditions was declared inadmissible by the European Commission

in 1993:19this was not a strong case on the basis of overcrowding, since the applicantwas in solitary confinement at the time of his application and therefore not sufferingthe effects of overcrowding However, the Scots courts have found a violation ofArticle 3 amounting to degrading treatment where a prisoner was held in a smallcell with another prisoner for 20 hours a day, with slopping out, one hour’s walkingexercise per day and little other recreation.20English prisons do not have sloppingout, but they do have toilets in cells and sometimes keep prisoners locked in formore than 20 hours per day

9.2 The use of imprisonment

Before examining the law relating to custodial sentencing, it is instructive to considerthe evidence on the use of imprisonment by the courts of England and Wales Howdoes the overall imprisonment rate relate to that of other similar countries? Whatkinds of offender are imprisoned, and for how long, in English prisons?

9.2.1 International comparisons

The traditional way of comparing the relative severity of different sentencing tems has been to refer to the Council of Europe’s table of prisoners per 100,000 ofpopulation in various European countries, which has consistently shown the UnitedKingdom at or around the top in recent years Chris Nuttall and Ken Pease haveargued strongly that this table is useless as a basis for sensible comparisons:National differences thus calculated are impossible to interpret They could be

sys-attributed, inter alia, to country differences in age profile, crime rates, clearance rates,

conviction rates, judicial severity, parole differences, or any combination of these orother factors.21

These are important points At present there is no method of internationalcomparison that avoids even most of the weaknesses of the Council of Europedata Certainly the International Bar Association’s survey was no better: it didobtain indications from ‘representative legal practitioners’ in many countries of the

19 Delazarus v United Kingdom, App No 17525/1990.

20 Napier v Scottish Ministers [2004] UKHRR 881; the implications of the decision are discussed by

Lawson and Mukherjee ( 2004 ).

21 Nuttall and Pease ( 1994 ), p 316.

9.2 The use of imprisonment 261

sentence range appropriate to certain test cases, but there is no reason to supposethat the sentencers in all or any of the participating countries were typical, or hadrecourse to objective statistics in order to confirm their indicated sentences.22Theonly way of resolving the question would be to determine whether, for certain givenoffences, an English court would be more likely to imprison, or likely to imprison forlonger, than courts in other countries with somewhat similar demographic features

It is unlikely that this question could be resolved by resort to official statistics, sincethey are not sufficiently refined to draw the necessary distinctions among the types ofoffender coming before the courts A proper inquiry would have to take account

of differences in legal definition, the circumstances of offences, the previous record

of the offender and other aggravating and mitigating factors

It is nonetheless evident that international comparisons consistently suggestthat some countries, particularly those in Scandinavia, succeed in using custodydistinctly more sparingly This raises the question whether English sentencing levelsmight be lowered without adverse consequences for the crime rate or, put anotherway, for the risk of victimization This might be established if it were shown thattwo countries with similar demographic features had different rates of punitiveness

in sentencing, measured by the relative uses of imprisonment for crimes of a similarnature (i.e a similar ‘crime-mix’) Such calculations are difficult to undertake ifall proper precautions are taken, but a few pointers can be derived from the latestinternational comparisons published by the Home Office Taking figures for 2002–

03, it records that England and Wales had the second highest imprisonment rateamong European Union countries, at 141 per 100,000, followed by Spain (138)and Portugal (137) Countries with which the UK is often compared economicallyand socially were using imprisonment at somewhat lower rates (e.g France 93,Germany 98).23The general trend in almost all countries has been upwards This

is, however, a crude measure that is open to the strictures of Nuttall and Pease, citedabove The 33 per cent increase in the English prison population between 1992and 1997 was similar to that in South Africa, Russia and the United States (three

of the more punitive jurisdictions in the world), but below the 50 per cent rises inthe Netherlands, Portugal and the Czech Republic The proportion of the Englishprison population serving sentences below 12 months in 1997 was 15 per cent, wellbelow that in France (29 per cent), Sweden (36 per cent), the Netherlands (37 percent) and Norway (59 per cent), although in Portugal the proportion was only

22 Discussed by Pease ( 1994 ), pp 121–3 23 Walmsley ( 2003 ).

24 Farrington and Langan ( 1992 ).

the risk of conviction and imprisonment for property crimes in England declinedsignificantly during this period, although the same risk did not decrease for crimes

of violence, and the risk increased for both types of crime in the United States.Second, it shows that recorded property crimes increased significantly in Englandand Wales during that period, and recorded violent crimes increased only modestly,whereas in the United States recorded crime in both categories fell markedly Theanalysis is constructed with care, as one would expect, but the conclusions arenecessarily tentative and partial The authors appear to wish to raise the possibility,merely, that the two trends may be connected: that crime rates are responsive tothe risk of custody, so that a high-custody policy may be crime-preventive In order

to substantiate this, however, a much fuller and deeper analysis would be needed.The authors recognize that, even allowing for the fact that the comparison wasconfined to two countries at only two points of time, they have not investigated themachinery by which any supposed deterrent or incapacitative effect might operate

If the claim is that ‘prison works’ through deterring potential offenders, it wouldhave to be found, for example, that potential property offenders in England in theearly 1980s were aware of the declining risk of conviction and imprisonment andthat this affected their decision-making In fact, what the Farrington and Langanstudies show is that there is a significant link between the certainty of punishmentand offending rates, but not between the severity of punishment and offendingrates.25If the claim is that ‘prison works’ through incapacitating a considerablenumber of offenders, it is important to examine that claim in the context of thefact that only some 3 per cent of offenders in any one year go to court, and an evensmaller percentage go to prison In the absence of a clear causal link, it is best tokeep faith with the reports from the US National Academy of Sciences which arguethat any incapacitative effects are likely to be marginal

What about the incapacitative effect of holding more offenders in English ons? The figures are inevitably dominated by high-volume offences such as theftrather than the offences from which people most want protection.26Some wouldargue that the cause-and-effect claim could be made quite simply by looking atthe decline in recorded crime: have we not witnessed a plain demonstration ofthe hydraulic effect, with more people in prison resulting in less crime in society?Between 1997 and 2002 the sentenced prison population increased from 48,412 to71,498;27between 1997 and 2002 the British Crime Survey showed a 25 per cent fall

pris-in crimes committed, although that decrease has slowed pris-in recent years.28Does thisnot show that the high imprisonment policy has worked? No: as suggested above, the

25 See the searching discussion of the Farrington-Langan studies by von Hirsch et al ( 1999 ), pp 25–8.

26 The Halliday report ( 2001 , p 130) stated that around 10,000 more prisoners would be needed to reduce the incidence of crime by 1 per cent The Carter review ( 2003 , p 16) concluded that the increase in the prison population since 1997 might have reduced crime by 5 per cent, adding: ‘the fall in the number of young people over the same period is estimated to have reduced crime by a similar amount’.

27 Prison Service (2003) In early 2005 the prison population exceeded 75,000.

28 Home Office Statistical Bulletin 07/03, p 26 and Table 3.01.

9.2 The use of imprisonment 263

Table 12 Sentenced prison population

Source: Based on Prison Statistics 2002, Table1.6

simple inference cannot be drawn.29There is probably a small incapacitation effect,but the crime rate began to decline before the steep rise in imprisonment, there hasalso been a decline in the number of young people in society (the most crime-proneage group), and international comparisons show declines in crime rates in recentyears in countries where the use of imprisonment has not escalated.30

9.2.2 The courts and custodial sentencing

Trends in custodial sentencing have an impact on the prison population in twoways – in terms of the number of custodial sentences handed down by the courts,and in terms of the length of those sentences In addition, as elaborated in part9.5

below, the provisions for early release of prisoners affect the numbers in prison

The composition of the sentenced prison population has changed markedly inthe last two decades As the figures in Table12demonstrate, in 1982 and in 1992 thetotal numbers were the same but there had been significant shifts away from personssentenced for burglary or for theft towards people imprisoned for serious sexualoffences and drugs offences For males, the 2002 figures show that the numbersserving prison sentences for burglary and for theft remain below the 1982 levels,but that there have been significant increases in every other group In 2002 therewere almost six times as many rapists and nine times as many drug offenders inprison as 20 years earlier Between 1992 and 2002 there was a more than 50 per centrise in the male sentenced prison population, with drug offenders, burglars androbbers showing particularly high rates of increase The female sentenced prisonpopulation almost trebled between 1992 and 2002, with the same three groups ofoffenders (drugs, burglars and robbers) leading the way

The steep increases between 1992 and 2002 reflect both a proportionately higheruse of imprisonment by the Crown Court and by magistrates’ courts, and a tendency

to give longer sentences, particularly in the Crown Court Thus the percentage

29 See nn 21 – 23 above 30 Tonry ( 2004 ), ch 3.

Table 13 Prison population by length of sentence

Source: Based on Prison Statistics 2002, Table1.6

of adults aged 21 and over sent to prison by magistrates’ courts increased from

5 per cent in 1992 to 18 per cent in 2002, perhaps reflecting the more serious nature

of the cases sentenced,31and for the Crown Court the rise was from 47 to 66 percent For the same group, average sentences remain about the same in magistrates’courts (2.5 months in 2002), but average sentences in the Crown Court are nowone-third longer, having increased from 21.1 months in 1992 to 27.8 months in

2002.32

The changing profile of the prison population can be seen from Table13, whichshows a particularly sharp rise in medium- and long-term prisoners, both malesand females The numbers of female prisoners in each category have doubled andsometimes trebled For males there was also a significant (50 per cent) increase inthose serving sentences of up to six months However, if we focus on the sentencingpractices of the courts by considering receptions into prison (rather than the averagepopulation), the figures show that by far the largest increase between 1991 and 2001was in offenders sentenced to less than 12 months (increased by a factor of one-and-a-half).33One suggestion is that significant numbers of ‘those who previouslymight have been given a community penalty are now serving short prison sentences’,which might explain why there has been such an increase in prisoners serving up

to six months, why the average length of magistrates’ sentences has not increased,and why the average increase in Crown Court sentence length is less than mighthave been expected.34Table13also shows that the numbers serving over six monthsand up to three years have increased modestly; but it is the number of prisonerssentenced to three years or longer who have swelled the prison population – more

31 Although the proportionate use of custody by magistrates’ courts for driving while disqualified, a summary offence, rose from 18 per cent in 1991 to 47 per cent in 2001, which suggests a change

of policy rather than a change in clientele: Hough et al ( 2003 ), p 13.

32 Criminal Statistics 2002, ch 4. 33 See Hough et al ( 2003 ), p 14.

34 Hough et al ( 2003 ), p 13.

9.3 Principles for the use of custodial sentences 265

than double the prisoners serving sentences between 3 and 10 years than a decadeago, and almost the same degree of increase in those serving 10 years or over

The particular problems of women prisoners are discussed in part9.6.2below,where some demographic features of the prison population are examined in greaterdetail

9.3 Principles for the use of custodial sentences

The above discussion of the problems of the prison system draws attention tothe conditions in which English prisoners may serve their sentences The fact thatthese conditions sometimes (or often) fall short of international standards makes itnecessary to seek even stronger justifications for imposing a prison sentence,35andadd weight to the principle of restraint in the use of custody As we saw in Chapter

3.3.2, there is now widespread international assent to the principle of restraint in theuse of imprisonment Resolution VIII of the Eighth United Nations Congress on thePrevention of Crime and the Treatment of Offenders (1990) states in paragraph 5(e)that ‘imprisonment should be used as a sanction of last resort’ The Council of Europehas likewise declared a policy of encouraging the use of non-custodial sentences andreserving custodial sentences for the most serious types of offence.36However, theinternational survey by Dirk van Zyl Smit and Frieder D¨unkel demonstrates thecontinuing centrality of imprisonment to the sentencing policy of most nations:

The sentence of imprisonment remains the backbone of the system of penal sanctions –

in spite of repeated proclamations at international congresses and in resolutions of theUnited Nations and the Council of Europe and other regional bodies that imprisonment

should be seen solely as an ultima ratio Alternatives to imprisonment continue in most

countries to derive their credibility from the residual function of imprisonment, which,

in as far as the death penalty has been abolished, is the most serious reaction to conductthat is seen as particularly dangerous to society or that repeatedly contravenes the law.This is strikingly demonstrated by the threat of imprisonment being used as the primarysanction for infringement of conditions of probation or the failure to pay a fine.37

Increases in the use of imprisonment are often policy choices rather thanresponses to objectively demonstrable rises in crime rates, and they may be pol-icy choices of other agencies (such as the police and prosecutors) and not just thecourts.38In England and Wales the official policies are somewhat diverse (somewould say, confused) During the second part of the 1990s Michael Howard,

as Home Secretary, pronounced that ‘prison works’, and his successors, JackStraw and David Blunkett, continued an expansionist prison policy.39However,

as will be argued below, there are also recent statements and policies that favour

35 See Kleinig ( 1998 ) on related issues 36 Council of Europe ( 1992 ).

37 Van Zyl Smit and D¨unkel ( 2001 ), p 796.

38 For such an explanation of recent rises in imprisonment in Germany, see Suhling ( 2003 ).

39 For the politics of ‘prison works’, see Windlesham ( 1996 ), ch 4; see further Morgan ( 2002 ), and Cavadino and Dignan ( 2002 ), ch 6.

bifurcation – pursuing restraint in the use of custody in some less serious cases,but more substantial use of custody in more serious cases; and consequently thereare many, in the courts and elsewhere, who complain of ‘mixed messages’ fromthe government The establishment of the Youth Justice Board in 1999 has exertedsome unifying effect on policy and practice in respect of young offenders Whetherthe setting up of the National Offender Management Service (NOMS), to pro-vide an integrated system encompassing prisons and community sanctions, bringsgreater clarity and constancy of purpose – as well as real improvements in practice,particularly in the prisons – remains to be tested.

9.3.1 Justifying restraint in the use of custody

The true principle of restraint in the use of custody is one which argues for the use

of non-custodial sentences instead of custodial ones, and which argues for shortercustodial sentences instead of longer ones The UN declaration (above), which refers

to imprisonment as a sanction of last resort, is an inferior formulation because itimplies that custody may justifiably be used for someone who persistently commitsminor offences, and for whom other measures have been tried Brief consideration

is given here to three justifications for the principle of restraint – doubts about thereformative potential of custody, doubts about its individual deterrent effect, andhumanitarian concerns

(i) Doubts about the rehabilitative potential of penal institutions In the 1930s

Alexander Paterson, one of the most influential of Prison Commissioners, declaredthat ‘it is impossible to train men for freedom in a condition of captivity’ By 1977the mood of scepticism, encouraged by the works of criminologists,40had found

its way into the official publication Prisons and the Prisoner :

Experience in recent years has led increasingly to scepticism about the compatibility

of rehabilitation in this traditional, paternalistic form with the practicalities of to-day life in custody The coercion which is inherent in a custodial sentence and thevery nature of ‘total institutions’ tend to direct the whole of the inmates’ individualand group energies towards adjustment to the austerely unnatural conditions; towardsalienation from authority; and thus towards rejection of any rehabilitative goals towardswhich the staff may be working.41

day-Important as it was to attempt to devise constructive regimes and to give prisonstaff a sense of purpose, the air of resignation in official publications continued andperhaps reached its zenith in 1990 when a White Paper argued that prison ‘can be

an expensive way of making bad people worse’.42Whether and to what extent theexperience of imprisonment makes offenders worse may be difficult to establish;but such factors as loss of employment, loss of housing, loss of contact with family,increased financial problems and possible deterioration in physical and mental

40 For the then research, see Hood and Sparks ( 1970 ), ch 8.

41 Home Office ( 1977 ), para 17 42 Home Office ( 1990 ), para 2.7.

9.3 Principles for the use of custodial sentences 267

health must all be taken into account.43For many years the reconviction figuresfor released prisoners have been poor It may be true that most of those who entercustody have previous convictions, many of them having several But a comparativesurvey of reconviction rates following various types of sentence, which took account

of age, type of offence and previous record, found that custodial sentences performedslightly worse than expected for all offenders other than the few first offenders Ingeneral terms, the proportion reconvicted within two years of release was 54 per centfor prison, 49 per cent for community service, 42 per cent for ‘straight’ probationand 63 per cent for probation with additional requirements.44

A few years ago a decision was taken to try to reverse this position, and to takeadvantage of the findings of the ‘What Works’ movement to devise programmes forprisoners that would reduce reoffending The Prison Service had a target of 8,444prisoners completing offending behaviour programmes in 2003–04, and some 9,169prisoners actually completed such programmes As noted earlier, the Prison Servicerecognizes that the evaluations of these programmes have not yet produced evidence

of reductions in reoffending.45The target of NOMS for 2004–05 is the lower figure

of ‘7,000 offender behaviour programmes completed by prisoners, including 5,490living skill programmes and 1,100 sex offender programmes in public prisons,and 330 living skills programmes and 80 sex offender treatment programmes incontracted prisons’.46On the basis of a review of English and US research studies,

it has been claimed that

evaluation surveys confirm a realistic approach that, on the one hand, does not denythe serious problems of offender rehabilitation, especially under the conditions ofclosed institutions, but, on the other hand, recognizes the opportunities for effectiveintervention that can be provided by prison authorities.47

However, as the Prison Service is finding, to expect good results from ing such programmes in the conditions obtaining in the English prison system may

implement-be unrealistic A review by Colin Roimplement-berts of three evaluations of offending implement-behaviourprogrammes in prisons shows that the promising results of the first phase, in themid-1990s, have not been maintained in later years, and that there were mixedresults in one-year and two-year reconviction studies Roberts suggests that, if therehas been a downturn in effectivensss, this may be explained by the enthusiasm of thestaff and the volunteers in the early programmes compared with the much-expandedprogrammes now delivered.48More prosaically, the Prison Service also offers var-ious detoxification and drug intervention programmes to prisoners, but the ChiefInspector has commented on their ‘patchy’ provision and on the counter-effects

of the availability of drugs in many institutions.49In the prison conditions that

43 Social Exclusion Unit ( 2002 ) 44 Lloyd, Mair and Hough ( 1994 ).

45 Prison Service ( 2004 ), pp 31–2 46 NOMS ( 2004 ).

47 Van Zyl Smit and D¨unkel ( 2001 ), p 823.

48 Roberts, C ( 2004 ), pp 136–42; see also Wilkinson ( 2005 ).

49 HMCI Prisons ( 2004 ), p 8.

currently obtain in England and Wales, therefore, doubts about the rehabilitativepotential of penal institutions are well grounded.

(ii) Doubts about the preventive effect of custody When Mr Howard was Home

Secretary, from 1993 to 1997, he proclaimed that ‘prison works’ This could hardlystand as a reference to deterrence or to rehabilitation, since the reconviction figureswithin two years give no cause for encouragement in that respect – nor do thefigures for desistance from crime in the 10 years following release.50It may be true

to say that ‘prison works’ in that it succeeds in incapacitating almost all prisoners(except the very few who escape) for the duration of their sentences But this hardlyseems a persuasive basis for penal policy, since (i) it is a short-sighted kind ofeffectiveness when so many of the prisoners then reoffend on release; (ii) it isalso short-sighted if there is little possibility of innovative schemes for prisoners,especially in the context of considerable overcrowding in local prisons; and (iii) theimpact of keeping these offenders in prison is slight in terms of additional securityfor the ordinary citizen since, as we saw in Chapter1.4, fewer than 3 per cent ofoffences result in conviction, and many of those are not sentenced to imprisonment

It follows that the threat to a citizen’s safety and security is not likely to be diminishedsignificantly by imprisoning 70,000 rather than 40,000 people When in the UnitedStates the National Academy of Sciences investigated the incapacitative effect ofimprisonment on the crime rate, they found it to be marginal The Halliday reportreached the same conclusion.51There is also little evidence of any general deterrenteffect from greater use of custody.52It is therefore clear that the preventive effects

of custody are frequently overestimated

(iii) Human rights and humanitarian concerns It is simply not acceptable for

state institutions to operate in violation of human rights There is already plenty

of evidence, in reports from the CPT, that English penal establishments fall belowinternational standards in several respects It will take individual cases to determinewhether breaches are taking place, and a Scots decision finding a violation wasnoted above.53The former Chief Inspector of Prisons took the UN Basic Principles

for the Treatment of Prisoners (1990) as a benchmark for assessing the acceptability of

English prison conditions,54and the government ought to take much more seriouslythe task of ensuring that proper minimum standards are achieved (and surpassed)

in the prisons To the extent that they are not, this may be a reason for closing certaininstitutions It is certainly a strong argument for reducing the number of peoplesent to prison and the length of their sentences

Greater weight is sometimes placed on a related argument, that imprisonmentshould be used less because the prisons are overcrowded There is some logic inthis: a given number of months incarcerated in overcrowded conditions may be as

50 See Burnett and Maruna ( 2004 ), tracing the careers of some 130 offenders released in 1992, on whose reactions to prison Mr Howard had originally placed reliance.

51 Halliday ( 2001 ), Appendix 3.

52 Von Hirsch, Bottoms, Burney and Wikstrom ( 1999 ); Halliday ( 2001 ).

53 Above n 20 and accompanying text 54 HMCI Prisons ( 1997 ).

9.3 Principles for the use of custodial sentences 269

punitive as a longer period in less unpleasant conditions.55But it shares with thehuman rights argument a temporary dimension Overcrowding could be removed

by a massive programme of prison building This, however, would be the opposite ofrestraint in the use of custody If, for example, the government were to commit itself

to provide 100,000 prison places in conditions that fulfil international standardsand human rights, the present arguments would be met but the principle of restraint

in the use of custody would be undermined rather than advanced In practice, thehuman rights and overcrowding arguments ought to have considerable purchase inEngland and Wales at present because there is no immediate prospect of significantimprovement But their limitations should not be overlooked

A more durable line of reasoning stems from the inevitable pains of ment Custody entails a deprivation of freedom of movement, which is one of themost basic rights, and often involves considerable ‘hard treatment’.56Loss of libertytakes away the freedom to associate with one’s family and friends, and separatesone from home and private life as well as from open society Prison is therefore asevere restriction on ordinary human liberties, far above those imposed by mostnon-custodial sentences And that restriction of liberties impinges not just on theoffender but also on the offender’s family and dependants These considerationssuggest that custody should not be used without some special reasons, and should

imprison-be reserved for the most serious cases of lawbreaking In particular, they suggestthat custody should not simply be seen as the top rung of a ladder which startswith discharges and runs upwards through fines and community penalties Theimposition of a custodial sentence restricts liberty to a far greater degree than anyother sentence, and for that reason should require special justification

9.3.2 Bifurcation or mixed messages?

Home Office policy in recent years seems consistent with the idea of bifurcatedresponses to offending, commending long sentences for serious offenders and areduction in sentence severity for minor offenders:

Custody has an important role to play in punishing offenders and protecting the public.But it is an expensive resource which should be focused on dangerous, serious andseriously persistent offenders and those who have consistently breached communitysentences For those who are not serious, dangerous or seriously persistent offenders,

we need to provide a genuine third option to sentencers in addition to custody andcommunity punishment For this reason we will introduce new and reformed sentencesthat combine community and custodial sentences.57

The then Home Secretary also put his name to a joint press release with theLord Chancellor calling for the greater use of community sentences for non-violent

55 See the reasoning in Upton (1980) 71 Cr App R 102, Mills [2002] 2 Cr App R (S) 229 at p 233 (‘in

a borderline case it is very important that those who have responsibilities for sentencing take

into account the overcrowding in women’s prisons’), and Kefford [2002] 2 Cr App R (S) 495 at

p 497 (‘the courts must accept the realities of the situation’, i.e overcrowding).

56 Kleinig ( 1998 ) 57 Home Office ( 2002 ), paras 5.6–5.7.

offences,58 and in his response to the Carter review referred to ‘diverting fromprison minor offenders for whom a very short stay in prison serves little purpose’.59However, these parts of the government’s message are rarely given prominence inpublic speeches, where the focus is usually on long prison sentences in the name

of public protection This creates the risk that the policy of bifurcation will givegreater weight to one of the ‘twin tracks’ than the other Moreover, the boundarybetween the two is also likely to be put under even more pressure by the graduatedseverity of sentences that will be imposed on persistent offenders, in the absence ofany proportionality constraint.60

Bifurcation quickly translates into blurring if there is an element of looseness

in fixing the boundary between the two tracks, and this is evident in other events

of recent years It is perhaps not surprising that several of the sentencers viewed by Hough, Jacobson and Millie complained about ‘mixed messages’ fromboth politicians and the senior judiciary.61In 2002 Lord Woolf called for strongerdeterrent sentences against street robbers,62and then for less use of custody foreconomic crimes, especially when committed by women.63However, even if therewas a clear distinction between violent offences (robbery) and non-violent offences(‘economic crimes’), that was thought to have been put in doubt when Lord Woolfdeparted from SAP’s proposed sentencing levels on domestic burglary by callingfor the greater use of community sentences for certain first- and second-time bur-glars.64That judgment drew strong criticism from Mr Blunkett as Home Secretary,from sections of the media and from some sentencers.65Less publicity was accorded

inter-to the fact that the foundation sinter-tone for Lord Woolf ’s argument that public tection would be improved rather than reduced by giving fewer custodial sentences

pro-to first- and second-time burglars was a report from the government’s own SocialExclusion Unit that spelt out the shortcomings of imprisonment as a form of publicprotection, criticizing it as expensive and counter-productive.66What this publicdisagreement shows is that the positioning of the two tracks of bifurcation policy

is open to debate, and that often politicians may be more interested in makingpolitical capital out of an issue than of spelling out the reasons for their policy Ifimprisonment policy really is one of bifurcation, then Home Secretaries should bewilling openly to support the principle of restraint in the use of custody for casesfalling within the lower of the two tracks Interestingly, a research project by Bottomsand Wilson into public attitudes was able to include a question directly about Lord

58 Lord Chancellor’s Department ( 2002 ).

59 Home Office ( 2004 ), para 23; paras 18–19 refer, without approval, to the rising severity of sentencing in the previous decade.

60 See above, ch 6.3 61 Hough et al ( 2003 ), p 53.

62 Attorney General’s Reference Nos 4 and 7 of 2002; and Q [2002] 2 Cr App R (S) 345.

63 In Mills and in Kefford, above, n.55 Cf the detailed deconstruction of the Mills judgment in part

6(b) below.

64 McInerney and Keating [2003] 2 Cr App R (S) 240.

65 Charted in Davies and Tyrer ( 2003 ).

66 McInerney and Keating [2003] 2 Cr App R (S) 240, at pp 256–8, quoting from Social Exclusion

Unit ( 2002 ).

9.4 The custody threshold and short custodial sentences 271

Woolf ’s burglary guidelines, and some 70 per cent of the responses supported hisapproach.67The research was conducted in Sheffield, the city often referred to bythe then Home Secretary, Mr Blunkett, as his barometer on crime Once again,careful research demonstrates differences between the true opinions of the public,and those voiced by politicians and the media

9.4 The custody threshold and short custodial sentences

In part9.3.2above we considered the evidence for the proposition that the ment’s prison policy is one of bifurcation, preserving a strong response to seriousoffences and ‘dangerous’ offenders but seeking a reduction in the use of custody forless serious offences We have noted that the White Paper of 2002 stated that ‘forthose who are not serious, dangerous or seriously persistent offenders, we need toprovide a genuine third option to sentencers in addition to custody and communitypunishment’.68Part of the strategy is to introduce a new ‘customized communitysentence’, discussed further in Chapter10below Another part of the strategy is tointroduce three new forms of short custodial sentence, for those offenders for whom

govern-‘short prison sentences will continue to be appropriate’ A fundamental problemwith the pre-2003 Act regime of short sentences was that there was no element

of supervision: prisoners serving less than 12 months were released after servinghalf the nominal term, but without proper support The new strategy is to empha-size ‘our overall aim of reducing reoffending’ by ensuring that offenders on shortsentences ‘have proper support, supervision and follow-through of education pro-grammes, drug treatment and anger management schemes in the community’.69This is to be achieved by creating three new forms of sentence – the suspendedsentence, intermittent custody, and custody plus These are examined below, afterthe primary legislative provision has been considered

9.4.1 The custody threshold

Section 152(2) of the Criminal Justice Act 2003 provides:

The court must not pass a custodial sentence unless it is of the opinion that the offence,

or the combination of the offence and one or more offences associated with it, was

so serious that neither a fine alone nor a community sentence can be justified for theoffence

This is very similar to the wording of s 1(2)(a) of the 1991 Act,70save that ‘must’has been substituted for ‘shall’, and that the closing phrase was formerly ‘so seriousthat only such a sentence [i.e custody] can be justified’, whereas now a court ought

to consider whether a fine or a community sentence could be justified Only if the

67 Bottoms and Wilson ( 2004 ), pp 394–5.

68 Home Office ( 2002 ), para 5.7 69 Home Office ( 2002 ), paras 5.22–5.23.

70 Broadly speaking, an offence is ‘associated with’ the current offence if it is one for which the court

is passing sentence on the same occasion: Baverstock (1993) 14 Cr App R (S) 471, Godfrey (1993)

14 Cr App R (S) 804.

court concludes that the case is too serious for either of those measures is a custodialsentence lawful.

How will the courts deal with this provision? Under the 1991 Act the Court ofAppeal initially adopted the test of whether ‘right-thinking members of the public,knowing all the facts, [would] feel that justice had not been done by the passing ofany sentence other than a custodial one’.71This was strenuously attacked as vagueand inappropriate,72and in dealing with a number of appeals against short custodial

sentences in Howells (1999), Lord Bingham CJ recognized the force of these and

other criticisms:

it cannot be said that the ‘right-thinking members of the public’ test is very helpful, sincethe sentencing court has no means of ascertaining the views of right-thinking members

of the public and inevitably attributes to such right-thinking members its own views

In the end, the sentencing court is bound to give effect to its own subjective judgment

of what justice requires on the peculiar facts of the case before it.73

However, Lord Bingham went on to argue that there is no bright line indicatingthe custody threshold, and in offering guidance to courts he merely listed familiaraggravating and mitigating circumstances that courts should take into account –premeditation, provocation, previous convictions, guilty plea and so forth It wasnoted above that there are several judicial pronouncements on the need to reservecustody for serious cases and, where it is thought inevitable, to make sentences asshort as possible, particularly for women and for those convicted of ‘economic’offences.74The joint statement from the Home Secretary and Lord Chancellor in

2002affirmed the importance of prison sentences for ‘serious and violent crime’but then also referred to ‘the need to keep prison as a last resort in other cases’ Shortcustodial sentences were criticized on the ground that they

provide little opportunity to tackle reoffending and indeed can often make thingsworse – disrupting family and work life while putting offenders who have committedrelatively minor crimes in the company of more serious offenders For those who

do not need to be in custody, the National Probation Service, with its central focus

on reducing reoffending, means that rigorously enforced community based sentencesoffer a real and tough alternative.75

The Sentencing Guidelines Council has sought to reinforce the purpose of

s 152(2) by emphasizing two principles:

r the clear intention of the threshold test is to reserve prison as a punishment for the

most serious offences;

r passing the custody threshold does not mean that a custodial sentence should

be deemed inevitable, and custody can still be avoided in the light of personal

71 The test was originally laid down by Lawton LJ in Bradbourn (1985) 7 Cr App R (S) 180, and applied to the 1991 Act in Cox (1993) 14 Cr App R (S) 479.

72 Ashworth and von Hirsch ( 1997 ) 73 [1999] 1 Cr App R (S) 335 at p 337.

74 See e.g Mills and Kefford (both above, n.55 ), per Lord Woolf CJ.

75 Lord Chancellor’s Department ( 2002 ).

9.4 The custody threshold and short custodial sentences 273

mitigation or where there is a suitable intervention in the community which vides sufficient restriction (by way of punishment) while addressing the rehabilita-tion of the offender to prevent future crime For example, a prolific offender whocurrently could expect a short custodial sentence might more appropriatelyreceive a suitable community sentence.76

pro-The import of the new legislation on the custody threshold is therefore fairly clear.Custody should be used more sparingly, especially for ‘economic’ offences and forwomen The figures for receptions into prison under sentence show, however, thatthe largest category remains ‘theft and handling’ (almost 16,000 in 2002), followed

by ‘motoring offences’ (12,000 in 2002, including drink-driving).77Moreover, even

in cases that do cross the threshold into custody, mitigating factors may have theresult in bringing the sentence back ‘below the line’ This was the message of the

leading case under the 1991 Act, Cox (1993),78where the offender’s relative youthand the fact that he had only one previous conviction combined to bring the sentencefor an offence that passed the custody threshold down to a community penalty It isalso clear from the guideline on reduction of sentence for guilty plea that a timelyplea of guilty may, in appropriate cases, be accorded the effect of reducing a custodialsentence to a non-custodial one.79

There remains an abiding difficulty, however, in identifying where the threshold

should fall In Verdi (2005)80the Court of Appeal held that a deterrent sentence of

18 months was appropriate for a youth of 18 who pleaded guilty to nine offences ofspraying graffiti on London Underground trains, offences described as ‘an unpleas-ant nuisance’ which each year cost the train operators some £10 million for cleaning

In Stephens (2002)81a man admitted ‘chipping’ mobile telephones as a means ofdefrauding the service providers of money for calls made The Court of Appealreduced the sentence from 18 to 12 months on an early guilty plea, but the question

is whether an ‘economic’ offence of this kind justifies such a sentence In Seymour

(2002)82the offender was convicted of obtaining £3,000 by deception from a holder by pretending that roofing work had been carried out when it had not TheCourt of Appeal upheld the sentence of 15 months for this ‘economic’ offence Arecases like this so far above the custody threshold?

house-The sentencing research by Hough, Jacobson and Millie took the custody old as its particular focus They found no consistent differences in the types of offencethat fell either side of the custody threshold, but they did find particular factors that

thresh-‘tipped the decision one way or the other’.83For decisions resulting in custody, itwas the intrinsic seriousness of the offence or the offender’s record of convictions

76 SGC, Overarching Principles: Seriousness (2004), para 1.32.

77 Prison Statistics 2002, Table 4.5 78 (1993) 14 Cr App R (S) 479.

79 SGC, Reduction in Sentence for a Guilty Plea (2004), para 2.6, discussed in ch.5.4.1 above.