APPENDIX

Evaluating ‘smarter sentencing’ and‘smarter punishments’: a view fromEngland

Faculty of Law; Fitzwilliam College; University of Cambridge

Introduction

Thank you for this wonderful invitation and opportunity
My plan:- To summarise the current context in England- To reflect on the impact of Covid-19- To review current Government policy initiatives- To conclude with some pointers for good practice(but I’ll start with a brief response and tribute to Mr Lee Ying Wai (Jacky))73

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The English context• By many standards, the UK (England and Wales) has a very high rateof imprisonment (131 per 100k; Japan: 38 only) – and it doubled
between 1994 and 2010! Why?
• Do we have a high level of crime? Very difficult to know: do you look atpolice records, self-reported crime etc. Which crimes matter most?
• Why have we failed to join up prison and probation services effectively?
• The advantages of comparative studies (and the dangers!)• The importance of context: historical, political, social, economic …
• In evaluating a criminal justice system, we have to agree somemeasures or values

Who and what are drivers of the prison populationand of the standards in prisons?
England and Wales: not only a large population, but dreadful conditions
exacerbated by ‘austerity’
Who pulls the strings/levers? Politicians, judges, policy makers,
prosecutors, the media (in that order?)……
Who is responsible for driving up standards? See above, as well as• Chief Inspector of Prisons• Independent Monitoring Board• Prison and Probation BoardNB National Preventive Mechanism (NPM) under OPCAT74

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The impact of COV1D-19
On prison and probation?
• By 31st Oct 2020, 32 prisoners and 23 probation service users had diedhaving tested positive for Covid-19, and 1,529 prisoners had tested
positive for Covid-19 + 21 HMPPS staff had died of Covid-19
On wider criminal justice system?
• Huge issues in relation to policing, legal advice, courts etc.
On us all?
• Domestic violence (up)• Organised violent crime (some up, some down?)• Fraud (huge)

Prison population down (from 83,957 on 6 March 2020, to 78,029 on 8January 2021): largely due to closure of courts and limits on trials: front
door forces, not earlier releases.
Front door: Judges encouraged to take account of exceptional circs:
Manning [2020] EWCA Crim 592; Jones [2020] EWCA Crim 764.
Back door: A new End of Custody Temporary Release (ECTR) introduced
but not really used, and ended in August.
Release on Temporary Licence (ROTL) by way of Special Purpose
Licence (SPL): only for the duration of the pandemic.
But CONDITIONS ….. Let’s consider: assaults and self-harm declining?
mental health? contacts with friends and families? progression?
purposeful activities ? …..

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The real problem: courts not prisons ?

• The remand (pre-trial) population has increased by 28% over the pastyear (to 12,274) – now at the highest level for around six years?
• Custody time limits (CTL) have been extended• The CTL National Standard 2020; + a new Protocol for the Effective
Handling of CTLs. Interesting argument between a judge and the LCJ:R (DPP) v Woolwich Crown Court [2020] EWHC 3243 (Admin): D’s CTL
ended April 2020. LCJ: it had not been open to the Crown Court (in July)to decide that the P had not shown that the need for an extension to theCTL was due to a good and sufficient cause

Current policy initiatives
New Government December 2019:•The Terrorist Offenders (Restriction of Early Release) Act 2020
•Release of Prisoners (Alteration of Relevant Proportion of Sentence)
Order 2020 (SI 2020/158)•a new Counter-Terrorism (Sentencing and Release) Bill is currently
passing through Parliament.

•Now: a White Paper: A Smarter Approach to Sentencing (Sept 2020)(and a ‘root and branch’ review of parole)76

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The White Paper: A Smarter Approach toSentencing (Sept 2020)
Govt recognises the need for huge improvement, but is there any
evidence that the important (smarter) things will happen?
Prison Reform Trust: “There’s nothing smart about rehashing punitive
rhetoric and hoping for a different
outcome”. http://www.prisonreformtrust.org.uk/PressPolicy/News/Senten
cing•What would be a ‘smarter’ approach?

Deeply punitive (and expensive, often
inappropriate and unduly complex)• Longer tariffs for many discretionary life sentences (2/3rds determinate
equivalent, not ½) – why?
• Increasing the time sex offenders serving the weirdly-named ‘SOPC’(sentence for offenders of particular concern) must spend in prison –why?
• Abolishing automatic halfway release for most sex and violent offenders
who get 4-7 years (already changed for over 7 year sentences simplyby S.I.: Release of Prisoners (Alteration of Relevant Proportion ofSentence) Order 2020 – why?
• New power to prevent automatic early release for offenders who
become a terrorist risk during non-terrorist sentence – why?

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RESOURCE MATERIAL SERIES No. 112• ‘Whole life’ orders extended, including for 18-20 year olds – why?
(Maybe unlawful as well as morally wrong? See R (Smith) v Secretaryof State for the Home Department [2005] UKHL 51 and various ECtHRcases)• Increased starting points for murders committed by children – OH NO!
• Tougher rules on minimum terms for repeat burglars and possessing aknife etc – why?
• Much more ‘tagging’ including ‘House Detention Orders’ (!) and ‘location
monitoring’.
• (Prison population expected to be 4,200 higher in September 2026)

Some probably positive (not new ideas; all requiresignificant funding and plenty of ‘piloting’)• Community sentence treatment requirements• Some unpaid work hours served in a work-related educational ortraining capacity• Criminal records reform: reducing the amount of time some young
people are required to disclose criminal records to prospective
employers• Better quality Pre-sentence Reports (PSRs)• ‘Encourage’ more deferred sentencing• Reduce use of remand for young offenders• Problem solving courts.

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Some could be positive or negative:•Out-of-court disposals: reduce the options to two: community
resolutions and conditional cautions – but why?

•

‘Empowering’ probation: beware the dangers of unaccountable
powers! What weird about-turns in recent years….. (Smartsentencing should see sentencing as a process and not a oneoff event…. So let’s explore the lifetime of a sentence and how it
is ‘managed’.)Re-thinking the context• Many of our prisons are a disgrace, as is the size of the prison
population.
• The injustice of social/economic inequality.
• What are prisons for? Let’s re-think the justifications. As or forpunishment?
• Rethinking what happens on release: if you want to reduce re-offending,
improve support for ex-offenders on release…...
• Is the Government’s ‘root and branch’ review of the Parole Board reallya root and branch review? Let’s also think about the rising recall rates….

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What works to reduce re-offending?

• Most offenders (even most persistent offenders) desist, and they do solargely on their own initiative.
• Factors influencing ‘pathways into crime’ are not necessarily the same
as factors influencing ‘pathways out of crime’.
• Desistance is often a gradual, fragile, obstacle-strewn process.
• The need to individualise ‘treatment’ to be effective.
• The need for understanding support and pro-social relationships: cf.
lack of effective channels for resolving difficulties.

Purposes and priorities?
Section 57 Sentencing Act 2000 (was s. 142 Criminal Justice Act 2003):
any court sentencing an offender must have regard to the following‘purposes of sentencing’:•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 theiroffences.
BUT no priority. Purpose of prisons? Rule 3 of the Prison Rules 1999:“The purpose of the training and treatment of convicted prisoners shall beto encourage and assist them to lead a good and useful life”

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Some conclusions

Smarter sentencing means• Recognizing that ‘one size does not fit all’
• Understanding what works to reduce re-offending• Understanding your aims and your priorities (your values)• Investing where it helps, and not wasting money where it doesn’t• Public education and debate really matter

Further Reading !
Dünkel, F, Harrendorf, S and van Zyl Smit, D (2021) The Impact of Covid19 on Prison Conditions and Penal Policy (Routledge)
Padfield, N. (2017) Parole Board oral hearings – exploring the barriers torelease https://www.ssrn.com/abstract=3081035
Padfield, N. (2019) Giving and getting parole: the changing characteristicsof parole in England and Wales 11 Eur Journal of Probation 153-168.
Padfield, N (2019) ‘Prisoner Resettlement in England and Wales’ inPrisoner Resettlement in Europe (ed Dunkel, F, Pruin, I, Storgaard, A andWeber, J (Taylor & Francis) pp 86 - 103.
Weitzdorfer J, Shiroshita, Y and Padfield, N (2018) ‘Sentencing andPunishment in Japan and England: A Comparative Discussion’ in Liu, J.
and Miyazawa, S Crime and Justice in Contemporary Japan (SpringerSeries on Asian Criminology and Criminal Justice Research), pp. 189-215.

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Thank you, again• Questions?

• Please do email me on nmp21@cam.ac.uk

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