COMMUNITY-BASED ALTERNATIVES TO INCARCERATION
Christine Glenn*

I. INTRODUCTION
This paper will concentrate in the main on community-based penalties but the account would beincomplete without the broader picture of sentencing and penal policy across the justice system in Englandand Wales.

II. GOVERNMENT POLICY
Government policy is that prison should be reserved for serious and dangerous offenders, and that others
are normally better punished in the community. To this end, the Ministry of Justice has been working withthe courts and others to try to bring down the prison population, which is at record high levels.

III. PURPOSES OF SENTENCING
Our whole sentencing framework was rewritten in the Criminal Justice Act 2003. For the first time, there
was a statutory definition of the purposes of sentencing. These are (as set out in section 142 of that Act):
•
•
•
•
•

The punishment of offenders;
The reduction of crime (including its reduction by deterrence);
The reform and rehabilitation of offenders;
The protection of the public and;The making of reparation by offenders to persons affected by their offences.

This definition does not apply to offenders under 18 at the time of sentencing and certain categories
of sentences for the mentally ill. Other than those few categories, the purposes of sentencing are now sodefined.

IV. SERIOUSNESS OF THE OFFENCE
Whilst courts are obliged to have regard to these principles, sentences will generally be determinedaccording to the seriousness of the offence. Seriousness is made up of:••harm caused by the offence; andculpability of the offender in committing it.

There is also a presumption that recent and relevant previous convictions make an offence more serious.
There are thresholds of penalty based on seriousness:••

offences that are so serious that only custody will represent a sufficient response;
offences that are serious enough to warrant a community sentence.

If neither of these thresholds is reached then a fine or a discharge will be appropriate.

* Chief Executive, Parole Board of England and Wales.

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V. COURT JURISDICTION
There are three types of offences:•••summary, which may only be tried in the magistrates’ courts;
indictable, often known as “either way”, which may be tried in either the magistrates’ courts or the
Crown Court; andindictable only, which may only be tried in the Crown Court.

Penalty levels vary depending on the court trying the offence. The magistrates’ courts may not impose
more than six months’ imprisonment for a single offence nor generally fine more than £5,000.

VI. FINES
Fines are available to punish all offences (other than where mandatory minimum sentences apply, such as
for murder). In general, the maximum fine that can be imposed by a magistrates’ court is defined in terms oflevel. There are five levels, currently set as follows:
•
•
•
•
•

Level 1
Level 2
Level 3
Level 4
Level 5£200
£500
£1,000£2,500£5,000In practice, fine levels are generally much less than the maximum as courts must take account ofoffenders’ means when deciding on the amount to impose. The Crown Court may fine an unlimited amount.

VII. COMMUNITY SENTENCES
Since the implementation of the Criminal Justice Act 2003, there has been a single community orderfor offenders aged 18 or over that can comprise up to 12 requirements depending on the offence and theoffender. These are:
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•
•
•
•
•
•
•
•
•
•
•

unpaid work (formerly community service/community punishment) – a requirement to complete
between 40 and 300 hours’ unpaid work;
activity – e.g. to attend basic skills classes;
programme – there are several designed to reduce the prospects of reoffending;prohibited activity – requirement not do so something that is likely to lead to further offences ornuisance;
curfew – electronically monitored;
exclusion – not much used as no reliable electronic monitoring yet available;
residence – requirement to reside only where approved by probation officer;
mental health treatment (requires offender’s consent);
drug rehabilitation (requires offender’s consent);
alcohol treatment (requires offender’s consent);
supervision – meetings with probation officer to address needs/offending behaviour;
attendance centre – three hours of activity, usually on Saturday afternoons, between a minimum of
12 hours and a maximum of 36 in total.

Typically, the more serious the offence and the more extensive the offender’s needs, the more
requirements there will be. Most orders will comprise one or two requirements but there are packages ofseveral available where required. The court tailors the order as appropriate and is guided by the probation
service through a pre-sentence report.

VIII. BREACH
Offenders who commit more that one unacceptable failure to comply with the terms of a community
order within a 12 month period are returned to court. If the breach is proven, the court is obliged to make191

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the order more punitive, or it may re-sentence, including to custody.

IX. CUSTODY
The picture on custody is complicated as there are different sentences for 18 to 21 year olds and for older
adults; and depending on whether sentence is under the Criminal Justice Act 2003 or its predecessor, theCriminal Justice Act 1991.
Eighteen to 21 year olds are sentenced to detention in a young offender institution and older adults to
imprisonment but to all intents and purposes here, they can be considered to be the same thing.
Maximum penalties are specified for all offences according to the seriousness of the offence. Generally,
the maximum will fall into one of the following bands:
•
•
•
•
•
•
•
•
•
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1 month
3 months
6 months
12 months
2 years
5 years
7 years
10 years
14 yearslife.

One of the characteristics of the criminal law in England and Wales is that offences are defined verybroadly. Robbery, for example, can be the snatching of a bar of chocolate from one schoolboy by another or amulti-million pound gold bullion heist. Hence penalties tend to cluster much lower than the maxima.

X. SHORT SENTENCES – UNDER 12 MONTHS
Those sentenced to under 12 months (still made under the Criminal Justice Act 1991) spend the firsthalf of their sentence in prison and are then “at risk” for the remaining period. This means they are underno positive obligations and do not report to the probation service but, if they commit a further imprisonableoffence during the at risk period, they can be made to serve the remainder of the sentence in addition to thepunishment for the new offence. The exception to this is those aged 18 to 21 who have a minimum of threemonths’ supervision on release.

XI. CUSTODY PLUS
The Criminal Justice Act 2003 sought to replace short sentences with custody plus, a new sentencethat would comprise a short period (2 to 13 weeks) in custody followed by a period under supervision in
the community (similar to a community order). This was because the recidivism rate for short sentences
is particularly high and one of the reasons for that is because offenders receive no supervision or support
on release. Resource constraints have prevented the introduction of this sentence, which remains on thestatute book.

XII. SUSPENDED SENTENCE ORDERS
The government has implemented suspended sentence orders, which enable a court to suspend
a sentence of up to six months for a period of up to two years subject to the successful completion ofrequirements in the community. The courts have used this substantially – we think to up-tariff from
community sentences. As breach of a suspended sentence order leads very often to custody, this is having
an unfortunate effect on the prison population. The government tried to legislate in the Criminal Justiceand Immigration Bill to restrict the use of the order to indictable (including either way) offences but had togive up on account of lack of time for the parliamentary process. They will probably return to this in future
legislation.

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XIII. SENTENCES OF 12 MONTHS OR OVER
A. Criminal Justice Act 1991
The provisions of the 1991 Act for sentences of more than 12 months have been replaced by those of
the 2003 Act but there are still some prisoners sentenced under the 1991 Act who are working their way
through the system.
The 1991 Act created a distinction between short-term – those serving under four years – and long-term– those serving sentences of four years or over – prisoners.
Short-term prisoners are those serving between one and four years and spend the first half of theirsentence in prison; the third quarter on licence and the final quarter at risk.
Long-term prisoners serving determinate sentences spend the first half of their sentence in prison andthen may apply for parole to the independent Parole Board. Parole may be granted at any time between
the half-way point and the two-thirds point of the sentence, and will only be granted if the Parole Board
considers that the offender is a sufficiently safe bet to release. The test is that the prisoner will not commit
a further offence of any kind within the parole window. The offender is on licence from the point at which
he is released until the three quarter point of sentence and then at risk for the final quarter. In the Criminal
Justice and Immigration Act 2008, the government legislated to treat long-term prisoners (as defined by the
1991 Act) who have been convicted for non-sexual non-violent offences as if they were standard determinate
sentence 2003 Act prisoners. These provisions commenced on 9 June 2008 and apply only to prisoners who
have yet to reach the half-way point of their sentence on that day.
Life sentences, as their name suggests, last for the remainder of the offender’s life. When sentencing, thejudge sets a minimum period – normally known as the tariff – that the offender must serve as a punishment
before being considered for release. Once this minimum period has elapsed, the offender may be releasedby the Parole Board but only if it considers that to be an acceptable risk to public safety. The test is different
from the one described above – here, the Board must decide whether the prisoner would commit an offence
which would harm “life and limb” – this is usually a sexual or violent offence.

B. Criminal Justice Act 2003
The 2003 Act abolished the distinction between short- and long-term prisoners and instead created one
between standard determinate sentences and public protection sentences.
Offenders sentenced to a standard determinate sentence serve the first half in prison and the second halfin the community on licence. The at-risk period no longer applies.
Offenders convicted of a sexual or violence offence may be sentenced to a public protection sentence.
In such cases, the court has to determine whether the offender is dangerous to the extent that he or she islikely to cause serious harm to the public through the commission of a further sexual or violent offence. If
the court does consider that to be the case, it may impose a public protection sentence. There are three suchsentences:•••

life – which should be used where it is available by statute and where the particular crime warrants it;
imprisonment for public protection (IPP) – where the maximum for the offence is ten years or more
and where life is not available or appropriate. An offender sentenced to an IPP serves the tariff as
set by the judge and then is eligible to be released if considered safe by the Parole Board. The only
significant distinction between life and IPP is that, whereas life sentences last for the whole of theoffender’s life, the Parole Board can bring an IPP licence to an end after 10 years in the community
following release;extended sentence – where the maximum for the offence is less than 10 years. An extended
sentence comprises the normal custodial period plus an extension period. The offender may bereleased at any time between the half-way point and the end of the normal custodial period and is on
licence until the end of the extension period.

The Criminal Justice and Immigration Act 2008 changed the provisions so as to give judges more

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discretion over the use of public protection sentences; for use of public protection sentences to be restricted
to offences for which two years’ real time is justified; and for release from an extended sentence to be
automatic at the half-way point of the custodial period with licence extending then until the end of theextension period. These changes apply to cases sentenced on or after 14 July 2008.

XIV. LICENCE
For the duration of the licence, an offender is obliged to comply with the terms of that licence. These may
include requirements to report to the probation service, restrictions as to where he or she may live and whatwork he or she may undertake, and requirements to attend programmes. If an offender breaches his or her
licence he or she is liable to recall to prison, potentially until the end of his or her sentence.

XV. EARLY RELEASE
Offenders serving under four years who meet various criteria may be released up to 4.5 months before
they would otherwise be released, on home detention curfew, subject to an electronically monitored curfew.
Alternatively, offenders who meet other criteria may be released up to 18 days earlier than they would
otherwise have been released on end-of-custody licence.

XVI. OFFENDER MANAGEMENT
Alongside these matters around sentencing, we must also consider offender management, now the jobof the National Offender Management Service. The National Offender Management Model is said to beconsistent with the best available evidence on what works in reducing reoffending.
This service encompasses both the probation and prison services, for the first time seeking to harmonize
and co-ordinate sentence planning and management under a single umbrella. The principles are as follows:Resources should follow risk – the evidence suggests that efforts should be focussed on those offenders who
are at medium/high risk of reoffending;••••Supervisory practices should incorporate elements of pro-social modelling where the offender isactively engaged in the sentence and is motivated, supported and encouraged to change his or her
offending behaviour;
The relationship between the offender and the offender manager is critical with consistency ofsupervision promoting the development of a trusting working relationship;
Supervision and referrals to other agencies for interventions should vary according to the assessedrisk levels and needs of the offender; andReferrals to partner agencies can be beneficial for offenders with multiple needs and for offenders
who would otherwise not have received community supervision. However, the evidence here ismixed.

The objective of the service is for the C’s to be delivered – continuity, consistency, commitment andconsolidation. Risk is then matched to resources using a tiering mechanism based on four approaches. Tier
1 is punish and includes monitoring and “signposting” to the offender. Tier 2 is Help and includes in addition
helping and brokering support for the offender who will fit the low risk and low seriousness criteria. The
help may be with health problems, accommodation, employment or learning skills, for example. Tier 3
adds an additional element of personal change on top of the Tier 2 elements and Tier 4 adds Control. These
offenders may be regarded as dangerous and/or prolific, who need additional restrictions and controls tomanage their risk.
More than half of community and suspended sentence orders ran their full course or were terminatedearly in the first quarter of 2008. But 36% of community sentences terminated for negative reasons and1,860 offenders were in custody in August 2008 for breaching a court order. These numbers need to beconsidered alongside those for persons in prison for breaching their licence following release. In 2007/08,
11,756 determinate sentenced prisoners were recalled to prison – an increase of 5% on the previous year.
In the same period, 926 parolees were recalled – a drop of 24% from 2006/07. The parole rate remained the194THE 141ST INTERNATIONAL SENIOR SEMINAR
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same at 36%. These figures show a continued trend of “back end sentencing” – a consequence of legislativechanges and the increased focus and efficiency of the Probation Service in enforcement of licences.

XVII. RISK ASSESSMENT
Risk assessment is at the heart of offender management and underpins sentence planning, resource
allocation, targeting of interventions designed to reduce reoffending and community supervision of
offenders. It is defined as “The systematic collection of information to determine the degree to which harm
(to self and others) is likely at some future point in time.”
For all involved in offender management, making a full and accurate assessment of risk is crucial todecision making. In understanding the boundaries of risk assessment, it must be recognized that theprocesses do not conform to an exact science and that no environment is risk-free. Assessment refers to theprediction of future reoffending (in the UK this is normally measured by reconviction) and the prediction of
the harm, to both an offender and their victim, that reoffending is likely to cause.
Typically, risk assessment measures two types of risk factor- “static” and “dynamic” and methods ofassessment are actuarial or clinical in nature. Static factors are the unchangeable historical characteristics
of an offender – such as gender, age and previous criminal convictions associated with higher rates of
reoffending. Actuarial risk prediction relies on assessment of these factors. It calculates the probability thatan individual will reoffend based on the average reoffending rate calculated from a sample of offenders whomatch that individual on relevant static factors. Clinical risk prediction in contrast is less structured andrelies on interviews and observations of social behavioural environmental and personality factor related
to previous offending. These factors are considered dynamic in nature as they are amenable to change via
treatment and offender management.
Both actuarial and clinical approaches are limited when used alone. Actuarial assessment cannot identify
which offenders will go on to reoffend, merely into which group an individual falls. Clinical assessment
can be more prone to bias as it relies upon judgment and can be influenced by an assessor’s opinion of
the relative importance of different risk factors. A number of tools are available, many of which have beenvalidated on UK populations and these are used as part of risk assessment processes. Some are actuarial,some clinical and others a combination of both. A number of tools predict specific types of reoffending, forexample sexual or violent, others are designed for general application. The most prominent tool now used is
the Offender Assessment System (OASys), which is used to assess risk of general offending, likely degreeof harm and degree of need posed by an offender in a range of areas. Other widely used tools are Risk
Matrix 2000 which predicts the risk of sexual reoffending and Historical Clinical List – 20 (HCR-20) whichmeasures the risk of violent reoffending. Risk assessment in England and Wales is undergoing substantial
re-development. The current OASys reoffending predictor will be replaced in the spring by a refined
actuarial measure. The new measure scores on dynamic factors which research has shown to be most
predictive of non-violent reconviction, such as drug misuse, and accommodation needs, which in addition
to criminal history were the best individual predictors of non-violent reconviction. A separate actuarial
predictor of violence will also be included and this will be used to form the basis for further judgments
regarding risk of serious harm. A further tool is being piloted to examine dynamic risk factors for sexual
offenders being managed in the community, building on the Stable and Acute 2007 tool developed in Canada.

XVIII. PROBATION SUPERVISION INCLUDING HIGH RISK OFFENDERSThe number of offenders starting community orders remains relatively stable – 33,200 started such asentence in the first quarter of 2008. Fifty one percent of these community orders had just one requirement,
14% had 3 or more requirements. Three percent more offenders were being supervised under community
orders on 31 March 2008 than a year earlier, up from 98090 to 101,250. Thirteen percent had no previous
convictions or cautions – 18% had 15 or more.
The number of offenders starting pre- or post-release supervision increased by 4% to 11,870. The
total number of offenders being so supervised was 97,080 at March 2008. This is an increase of over
22% from December 2002 and is largely a result of the changes brought in by the 2003 Act, which means

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that offenders now spend longer on licence. High risk offenders are supervised under Multi-Agency
Public Protection Arrangements (or MAPPA). These are arrangements set up locally to assess andmanage offenders who pose a risk of serious harm. National guidance indicates the use of three levels ofmanagement. Level 1 involves ordinary agency management; Level 2 is where the active involvement of
more than one agency is required to manage the offender. Most offenders assessed as high or very highrisk of serious harm can be managed effectively at Level 2 where the management plans do not require
the oversight and commitment of resources at a senior level. The highest level is Level 3 where it isdetermined that the management issues require conferencing and senior representation from the agencies.
The few cases referred at Level 3 – sometimes known as the critical few – are those whose management is
so problematic that multi-agency co-operation and oversight at a senior level is required, together with theauthority to commit significant resources.
In 2007/08, there were 12,806 Level 2 and 3 offenders. During this period, 79 serious further offenceswere committed by these nominees. The major aim of MAPPA is public protection. Relevant agencies have astatutory duty to co-operate in the arrangements.
There is also the Prolific and other Priority Offender (PPO) Programme which targets those offenders
who commit most crime in the area, or whose offending causes the most damage to the local community.
The three strands of the programme aim to:•••

Catch and convict offenders who commit most crime in their locality or whose offending causes
most harm to their community. There is no standard national definition of PPO. Local areas devise
their own selection criteria based on key principles set out in national guidance. PPO’s are subject tointense police supervision;
Rehabilitate and resettle: this involves working with offenders to stop their offending by offering
a range of supportive interventions addressing identified needs and risks of further offending. The
opportunity to rehabilitate is backed by a swift return to court if offending continues;
Prevent and deter: to stop the most active young offenders escalating into tomorrow’s prolificoffenders through youth justice interventions and continued post-sentence support.

Recent research supports a positive assessment of the PPO programme. A comparison of total
convictions before and 17 months following the programme showed a 43% reduction by PPO offending,and a comparison from the start of the scheme to 17 months after the start showed a 62% reduction inconvictions and a sharp reduction in PPO offending following entry on to the scheme. These reductions
cannot necessarily be attributed to the PPO programme as we do not know what would have happened tothese offenders had the scheme not been introduced.
A new initiative is integrated offender management, the aim of which is to reduce reoffending. It
approaches target offenders in the community who present the highest risks to their communities,
especially those short sentence offenders released from prison with no statutory supervision. There are
five pilot areas. No evaluation has yet taken place but research is being built into the pilots which wereannounced in July 2008 and which will run for two years. The schemes are multi-agency partnerships.

XIX. SENTENCE DISPOSAL PATTERNS
Fines are the most common disposal with 941,500 handed out in 2007 – accounting for 66.6% of all
sentences. Community sentences accounted for 196,400 cases: 13.9% of all sentences, up 3% from1997. Immediate custody was given to 6.7% (95,200), up from 93,800 in 1997, but a similar proportionof all sentences. This does not tell the whole story. Use of the fine for indictable offences has dropped
dramatically in the last 10 years – falling from 27.6% in 1997 to 15.8% in 2007. Over the same period, theuse of community sentences for these offences has risen by 5.3% to 33.7%. The immediate custody rate forindictable offences has remained relatively stable over the past decade, rising slightly from 22.5% to 23.7%
in 2007. This does point to the increase in breach and recall numbers being at the heart of the increase in
the prison population. In 2007, almost 136,000 were sentenced to custody, immediate and suspended – thehighest figure in a decade and up 40% on 1997 numbers. Other disposals include conditional discharges(94,100 in 2007), absolute discharges – 11,000 over the same period down from 18,200 in 1997 andcompensation orders – 165,900 in 2007.

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The fine became a less popular disposal from the 1990s as enforcement became less effective. Much
effort and investment went into improving enforcement and this has paid off in results. In 2007/08, the
new amount of fines imposed was £376 million (including transferred fines from previous years). In thesame year, £256 million was collected and £106 million was cancelled. The paid and cancelled amounts do
not necessarily relate to the fines imposed in that year but could be collected against any fine outstanding
regardless of age. The fine has started to be restored as a credible sentence as a result of the efforts toimprove enforcement which have resulted in a steady year on year rise in payment rates since 2003 – from73% in 2003/04 to 90% in 2006/07. In the six years to 2006, there has been a 23% reduction in the number ofoffences committed by offenders within one year of commencing a court order under probation supervision.
In 2006, 36% of offenders commencing a court order under probation supervision committed at least one
offence in the following year – down from 40% in 2000. In this period, there has been no change in thenumber of most serious offences committed within a year by offenders commencing court orders underprobation supervision.
Similar trends emerge from those released from prison. In the same six years, there has been a 15%
reduction in the number of offences committed by offenders within one year of discharge from custody. In
2006, 46% of offenders released from prison committed at least one offence the following year – down from
51% in 2000. The greatest reductions have been made with offenders sentenced to over one year in prison –over 40% in terms of the number of offences commited.

XX. PROBLEMS AND CHALLENGES OF COMMUNITY-BASED SENTENCES
The first problem – and the most important – is that of public confidence in these sentences, which canbe seen as soft options. The British Crime Survey (BCS) shows that crime has fallen by 10% in the last year,
representing a million fewer crimes. Police recording of crimes has improved while victim reporting of crime
has remained fairly stable since 1997.
Despite this, high numbers of people believe that the crime rate has risen. People have more positive
perceptions of crime in their own area than nationally – 65% thought that crime in the country as a whole
had increased in the past two years compared with 39% who thought that crime in their home area had
increased.
Sentencing has become more complex over recent years. When I appeared before the Parliamentary
Public Accounts Committee last October, one MP asked me for a definition of honesty in sentencing – I
replied that this was about a sentence being clear and transparent and readily understandable to all. The
legal labyrinth which sentencers have to navigate and which practitioners then have to enforce makes sucha concept aspirational. If I had a magic wand, I would use it to clarify sentencing so that people understoodit. This lack of understanding is in my view the biggest barrier to improving public confidence in the system.
Unfortunately, the media does little to help.
We must not underestimate the media influence on public confidence. The trend now seems to be aboutblame and scapegoats when things go wrong – as they inevitably will. I am certainly not suggesting evenfor a moment that officials and agencies should not be accountable – but trial by television or newspaper in
the absence of many of the facts is not the most mature way of proceeding in these cases. Sadly, in the UK,
the public does not accept the facts about the fall in crime and often, according to research polls, regards
published statistics as at best incomplete and misleading, and at worst dishonest. This research indicatesthat people are more likely to believe local rather than national estimates. This is not a quick fix cure but it
is not enough to look only internally and not engage and try to inform the community about your work – andto agree to some press interviews and coverage to try and balance reporting where possible.
I go back to my magic wand. I would also use it to put in place an IT system that was common across thecriminal justice agencies and which would enable good research to be carried out, as well as for information
to be effectively shared. The public just can’t understand why, for example, one police service has
information that isn’t accessed and acted on by police in another area and which may have prevented a highprofile offence.

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There is also the issue of judicial confidence – it is vital that the judiciary is independent and is seen
to be so. Some parts of the 2003 Act – notably the IPP sentence – were crafted so as to take away judicial
discretion and when judges did what they had to do in following the statute with unfortunate consequences,
there was public criticism. It has taken over three years for the worst excesses of this sentence to be
put right by the 2008 Act. What is a great advance is that in those years there is now a proper agreement
between the Secretary of State for Justice and the Lord Chief Justice – the concordat. Communication andunderstanding have greatly improved and this bodes well for the future.
And then there are resources. We were already facing budget pressures before the downturn in the
global economy. All interventions require funding. Our prison population is estimated to increase to
between 83,400 and 95,800 by 2015. Community orders too are projected to go up to 258,500 by 2010/11.
The increase in knife crime and the expectation to prosecute rather than caution these offenders andfor sentencing tariffs here to increase may increase these estimates further. The impact of increased
radicalization as well as the impact of technology on crime will also be challenges. What impact will thecredit crunch have on crime too?
What has been encouraging is the success of partnership work between agencies. I spoke earlier about
MAPPA and integrated offender management as well as the provisions for dealing with the persistentand prolific offender. There are other such partnerships – crime and disorder reduction partnerships andcommunity safety partnerships. These are locally based and involve local government, listening to local
people and aiming to be responsive to local needs and make local people feel safe in their communities.
There are moves to build on the work so far, including having directly elected chairs of these partnerships
and scrutiny committees which will provide people with a way to influence their local police service and holdit to account.
There are also unique opportunities – such as UNAFEI courses and seminars – where we get theopportunity to learn and understand what is happening elsewhere, what has been successful and what
has not. This should enable us to make the best possible use of resources as these come under increased
pressure.

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