86.  We now turn to consider the second element of the sentencing strategy behind the Criminal Justice Act 2003. While Imprisonment for Public Protection sentences have been oversubscribed, there has been no evidence of a shift to community penalties for those who might previously have been imprisoned for short periods. Chapter 5 explores the changes that were made to community sentences to make them more appropriate for a variety of offenders, but first we examine the continuing use of short custodial penalties.

87.  The 2001 Halliday Review of the sentencing framework in England and Wales described the state of short custodial sentences, as "one of the most serious deficiencies in the present [sentencing] framework".[133] These concerns have not been addressed; witnesses reiterated "the pointlessness of such sentences", describing them as "ineffectual".[134] Upon taking up his post as Prisons Minister the Rt Hon David Hanson MP agreed that "we need to look at the lower end sentencing options, particularly for those under 12 months".[135]

88.  Despite this consensus, the arrangements for short custodial sentences have remained largely unchanged since the provisions of the Criminal Justice Act 1991. The Criminal Justice Act 2003 set out new arrangements for community orders to encourage a switch away from short-term imprisonment to the new community sentences-which has not happened-and provisions (called 'Custody Plus') to make those short custodial sentences which continued to be handed out more effective-which have not been implemented.

89.  Although the most recent review of prisons by Lord Carter of Coles did not offer any proposals to change the short custodial sentence landscape, the Government did consider this area in its January 2008 Prison Policy Update Briefing Paper and in recent announcements.[136] This paper announced funding for six intensive alternative to custody projects to provide community-based sentences appropriate for those individuals currently sentenced to short periods in custody. Similarly, in March 2008, the Government announced additional funding for probation on the basis that community punishments can be more effective penalties than short prison sentences for some offenders.[137]

SHORT CUSTODIAL SENTENCES AND THE PRISON POPULATION

90.  Short custodial sentences may have received less attention than Imprisonment for Public Protection sentences because tackling their deficiencies is unlikely to have a significant impact on the immediate prison overcrowding. Paul Kiff of the Cracking Crime Scientific Research Group, University of East London, explained that short sentences were often falsely interpreted as responsible for the rise in prison population-when in reality "only 6% of the growth in total prison population between 1995 and 2005 could be attributed to the increased use of short custodial sentences".[138] Prison places fill up with individuals on long-term sentences because short-term prisoners by definition move on. Thus prisoners on short-term sentences account for only 11% of the total prison population at any one time.[139]

91.  Dealing with short custodial sentences is essential for the effective overall management of the prison system. Although their impact on overall prison numbers may be small, their impact on prison resources, such as prison officer time, is still significant because of the volume of such offenders going in and out of prison each year. In 2006, the Prison Service received 90,038 sentenced prisoners into custody—57,294 of these for sentences of 12 months or less, 64% of that total.[140] This is a substantial increase on the 1996 figure of 46,149 receptions of prisoners sentenced to short-term custody, which made up 56% of receptions of sentenced prisoners that year.[141] The reception of each requires a certain amount of time, and therefore resources, to process.

THE CHARACTERISTICS OF SHORT CUSTODIAL SENTENCES

92.   Short custodial sentences, those of 12 months or less, are handled under provisions from the Criminal Justice Act 1991—whereby prisoners will serve half the period of their sentence in custody and are then released unconditionally.[142] Unlike prisoners serving longer sentences, those given a short sentence do not serve a licence period whereby the final half of the sentence is served in the community with particular restrictions or requirements on the individual. However, during the final half of the sentence released prisoners are 'at risk'—thus if they commit a further offence they may have to return for prison for the final part of the initial sentence as well as any sentence imposed for the further offence. Many short custodial sentences are for three to six months, meaning between six and 13 weeks served in custody. Only a small proportion of short sentences are for six months or more. This pattern may reflect the powers of Magistrates' Courts, which award a maximum six month custodial sentence for one offence.

Sentence Length[143]	Sentenced receptions to prisons 2006
Less than or equal to 1 month	7,398
Greater than 1 month and less than or equal to 3 months	16,779
Greater than 3 months and less than or equal to 6 months	24,747
Greater than 6 months and less than 12 months	8,370
Total short sentences	57,294

93.   26% of short custodial sentences are for offenders sentenced for a category of 'other offences'-which does not explain who these people are.[144] The second largest group of offences for which short custodial sentences are given (25%) is for theft and handling offences, probably non-violent and relatively low value thefts.[145]

94.  Women are disproportionately subject to short prison sentences. While prisoners on short custodial sentences make up 11% of the total prison population, women on short custodial sentences make up 17% of the female prison population at any one time.[146] In terms of receptions into prison, just under three-quarters of all sentenced women entering prison are there for sentences of 12 months or less.[147] This may be due to the differences between the offences that women are imprisoned for-which are primarily low level non-violent offences, i.e. offences that are over-represented amongst prisoners as a whole on short custodial sentences. The Fawcett Society emphasised that not only were women disproportionately likely to receive short custodial sentences but they may be more affected by the negative impacts of short custodial sentences-for example, they are more likely to be affected by the dislocation from children or to suffer financially and lose accommodation.[148]

95.  A key element of the coherent sentencing strategy envisaged under the Criminal Justice Act 2003 was to deal with low level offenders by community punishments rather than short custodial sentences. It is clear that this strategy has not worked.

96.  The key to understanding why this change has not taken place is to examine who receives these sentences and why. Unfortunately, the data is extremely limited. It will never be possible for the Government and key stakeholders to develop appropriate punishments for people if we do not know who they are, what they have done and therefore what punishment might be appropriate. We urge the Government to review current data collection on sentencing practice, identify what areas have gaps relating to key policy objectives and set in place mechanisms to fill them as a matter of urgency.

The aims and effects of short custodial sentences

97.  Both the Government and the voluntary sector agreed that short custodial sentences were ineffective and emphasised the need for a shift towards community sentences in their place. For example, the Prince's Trust told us: "non-custodial sentences should be a viable alternative to short-term sentences […] which prove ineffectual and simply push up the prison population".[149] In response to his first question in his first appearance before the Committee Rt Hon David Hanson MP asserted that he needed to be "looking at how I can encourage, and the Government can encourage, non-custodial sentences, particularly for those people who are currently sentenced for sentences of under 12 months".[150]

98.  Short custodial sentences are unique among sentences for low level offending in the sense that the individual is actually put in prison. Other sentences do involve the deprivation of liberty through, for example, tagging and electronic curfews. The former Lord Chief Justice, Lord Woolf, told the Home Affairs Committee: "often the most effective thing about a short sentence—indeed the only effective thing about it—is for you to hear the clang of the prison door and to spend just a few nights knowing what it is like to be shut up for most of the day".[151]

99.  The Magistrates' Association told us: "custody, of whatever length, is a sentence to mark an offence of particular seriousness".[152] This definition of custody as attaining a particular status in terms of its ability to punish-one of the aims of sentencing set out in the Criminal Justice Act 2003-was echoed by the Jack Straw, who stated that "imprisonment is the ultimate means of enforcement".[153] Nicola Padfield, a lecturer in Law at the University of Cambridge and Crown Court Recorder, questioned whether this was an accurate picture of a short custodial sentence—whether it might be more punitive to impose a two year community order, with challenging demands, than even a relatively lengthy short custodial sentence that would only result in a few months inside.[154]

100.  Witnesses were concerned that short custodial sentences were almost 'setting people up' to re-offend.[155] Two key problems were identified-the time within prison was not long enough to put in place any meaningful interventions (e.g. improving literacy) but long enough to detach the individual from all the networks such as family and employment that may help to prevent re-offending. Anne Owers said: "it is very difficult within a short sentence to make a significant difference to someone coming into prison, and given that if there is any stability in life outside that will be disrupted, it is extremely difficult on a sentence of less than six months (and all the evidence points that way) to do anything to reduce the chance of that person re-offending in the future".[156] Clinks added that: "These short sentences achieve a disruption in housing, employment and family ties, exposing offenders to the damaging impact of prison life without any benefits in terms of addressing the issues that led to the offending".[157] The Lord Chief Justice has raised concerns that a short sentence would encourage re-offending. He cautioned that "particular care should be exercised before imposing a custodial sentence on a first offender. Association with seasoned criminals may make re-offending more likely rather than deter it".[158]

101.  Short custodial sentences are very unlikely to contribute to an offender's rehabilitation; in fact, short custodial sentences may increase re-offending.

102.  Custodial sentences, even very short ones, are often seen as the ultimate punishment and an assumption is made that achieving the punishment aim of sentencing compensates for deficiencies in meeting other aims such as rehabilitation or reparation. We disagree with this approach to using custodial sentences.

Why are short custodial sentences used?

103.  Short custodial sentences do not achieve the sentencing aim of rehabilitation, and potentially not that of punishment. It seems that short custodial sentences are being used for low level but repeat offenders. As Sir Igor Judge explained, it might be: "that there were so many persistent offences committed by this individual that really the time had come when he—it is nearly always a he—had to go inside for a short time, if only to learn that his actions had serious consequences".[159]

104.   Short-sentenced prisoners are highly likely both to have previous convictions and to re-offend following release. Of those in prison on short sentences 58% have 10 or more previous convictions, 35% between 8 and 10 and only 8% have less than 3.[160] The Director of Probation noted that re-conviction rates for sentences of 12 months or less were almost twice those of offenders sentenced instead to carry out unpaid work-70% compared to 38%.[161] What perhaps is not clear, however, is how far offenders coming into short sentences are already set into a pattern of recidivism and to what extent the short sentence encourages repeat offending. Professor Neil Hutton pointed out that recidivist minor offenders are a "major challenge to criminal justice" in that their imprisonment creates a revolving door: "a significant number of these offenders have a range of issues which make it extremely difficult for them to break out of this cycle. Courts feel that imprisonment is inevitable because alternatives have not 'worked' or because the persistence of the offending behaviour is viewed almost as a contempt for the authority of the court".[162] He acknowledged that there was no easy solution but felt prison should be reserved for those people who needed to be there and community sentences should be the norm for recidivist minor offences.

105.  The Council of HM Circuit Judges suggested that prolific offenders should not be dealt with by imposing short custodial sentences but rather by a sentence that would provide the opportunities to tackle the underlying behaviour: "there are many 'prolific' minor offenders who receive custodial sentences as a last resort when other efforts to deal with their offending have failed. In this connection there is a need to keep in mind the problems with mental health and substance abuse".[163]

106.  Nacro queried whether the sentencing framework requiring previous convictions to be treated as aggravating factors was driving up the numbers of short-term sentences.[164] It suggested for example that the much higher percentage of those convicted of shoplifting currently imprisoned compared to five years ago-a rise from 5% to 21%-was due to these requirements.[165] This raises a concern that the sentence an offender receives is less on the basis of the current offence and more on the basis of previous behaviour-with the risk of disproportionate sentencing for the current offence.

107.  We are disappointed at the Government's apparent acceptance of the use of short custodial sentences for repeat offenders. There is no evidence that a short prison term will tackle recidivism. We recommend that the Government should instead produce a range of sentencing options, based on suitable evidence, after consulting sentencers, probation and other services, on what successfully removes offenders from a cycle of crime and repeat offending.

108.  We are concerned that, in the absence of identified effective mechanisms for dealing with repeat offenders, defendants may be receiving disproportionate sentences for current offences based on a legislative framework that requires penalties to be ratcheted up. The Government should, as a matter of urgency, assess the impact of provisions requiring previous convictions to be treated as aggravating factors.

109.  We were also disturbed by evidence that short custodial sentences are being used because more appropriate options are not available to sentencers. The Magistrates' Association told us: "their offence is such that it is serious enough, so serious that a custodial penalty is appropriate, but we cannot draw back because we do not have the available programmes".[166] In particular, programmes to treat substance abuse and mental health facilities were lacking. [167]

110.  The Chief Inspector of Prisons suggested to us that contradictions in current funding priorities around prison and probation also had an effect. Government evidence to the Home Affairs Committee referred to the need to "prioritise prison and probation resources on more serious offenders".[168] This approach denies resources which would make community penalties available as better alternatives to short custodial sentences—meaning resources have to be used on short custodial sentences instead. The Chief Inspector of Prisons summarised the current situation: "the difficulty we have at the moment is that the rising prison population soaks up resources like a sponge and takes away resources from the other things which are not prison which you would need to have in place in order not to use prison so much; so it becomes a kind of vicious cycle".[169]

111.  We welcome the Ministry of Justice's statement of January 2008 announcing improved funding for intensive supervision alternatives to custody and for drug treatment. If non-custodial sentences are ever to be used appropriately then they must receive adequate funding to make them effective. However, making effective community sentences available requires more than funding for pilots or specific initiatives. The Government needs to set clear, long-term objectives and allocate resources to them.

Options for change

112.  One option suggested to achieve a switch from the use of short custodial sentences to community punishments would be to abolish or limit in law the ability to sentence to short periods in custody.[170] This could be done through abolishing Magistrates' ability to pass custodial sentences, limiting custodial sentences to particular offences or requiring courts to demonstrate why a community sentence was inappropriate in order to impose a custodial sentence. The Chief Inspector of Probation injected a note of caution pointing out that the general trend from past experience was that attempts to limit custodial sentencing tended to backfire: "I do think we have to learn lessons over the last 40 years (and we do not learn them) that alternatives to prison, so-called, turn out to be the opposite for alternatives to prison".[171] The Council of HM Circuit Judges questioned whether removing the option of short custodial sentences would simply mean longer custodial sentences were imposed.[172] The International Centre for Prison Studies noted that imposing stringent community orders on low level offenders resulted in a rise in people going to prison for failing to comply with them.[173] Others had objections based on the impact of such proposals on judicial discretion-the Criminal Bar Association simply stated that: "in many cases such a sentence [short-term imprisonment] is punitive and disruptive to a disproportionate level but it would be wrong to prevent the imposition of such a sentence in any circumstances".[174]

113.  The Criminal Justice Act 2003 contained a provision for Custody Plus, but this has not been implemented. The Custody Plus proposals would have meant that short custodial sentences should have entailed a shorter period actually in custody but a longer licence period—compared to the current situation where the individual is simply released at the half way point with no conditions on their behaviour in the community. This licence period offers the opportunity for programmes to change behaviour to be completed or for resettlement to be more closely monitored. The Government told us that it had not implemented Custody Plus because of the lack of resources-and most recently reported to us that models of its implementation resulted in an increased prison population, as well as probation workload.[175]

114.  A range of witnesses from Lord Woolf to the Prison Reform Trust expressed regret. The Magistrates' Association told us: "if Custody Plus had been introduced, magistrates would have seen that as a possible way forward and a progressive step […] so that it would have been a shorter-term in prison to recognise the seriousness of the offence and punish them but, recognising their own particular problems, we could then have said, 'yes, here is an agency that will deal with this''.[176] Other witnesses were concerned that Custody Plus would have led to longer sentences overall. The Council for HM Circuit Judges, while supporting the idea of Custody Plus, suggested it would have resulted in a taste of custody for individuals who would not otherwise have faced a custodial sentence.[177]

115.  A number of witnesses questioned whether it would be possible to achieve some of the benefits of the Custody Plus proposals, such as the linkage to communities, without the potential disbenefits of 'uptariffing' caused by rearranging the necessary legislative framework. Nacro suggested that the Government could commission voluntary organisations to provide resettlement services for prisoners on short custodial sentences.[178] There are examples of good practice of such initiatives across the country in individual areas but the challenge is in enabling and ensuring they are available consistently. Clearly there are also difficulties in that prisoners get moved to different establishments to deal with prison overcrowding but these are often far from their homes and therefore make using local services to deal with the aftermath of short custodial sentences problematic.

116.  Eliminating short sentences from the statute book would be an unnecessary limitation to sentencers' discretion and would not deal with the real issues around providing an appropriate sentence structure for low level offenders. However, taking no action is also not an option. Judicial discretion seems to be already limited because of the lack of available alternatives.

117.  The 'Custody Plus' proposals had the potential to deal with one of the key criticisms of short custodial sentences, namely that they have no rehabilitative value. While we accept that to implement these proposals without the resources to operate them effectively would be likely to make the situation worse rather than better, we recommend that the Government considers how some of the key elements of the Custody Plus sentence, such as enhanced resettlement support, could be brought in within the current legislative framework.

118.  There is a contradiction in stating that prison should be reserved for serious and dangerous offenders while not providing the resources necessary to fund more appropriate options for other offenders who then end up back in prison. Unless this contradiction is resolved we fear that the twin aims of the Criminal Justice Act 2003 will not be realised.

134   Ev 120 and Ev 106 Back

135   Q 24 Back

136   Lord Carter's Review of Prisons, Securing the future: Proposals for the efficient and sustainable use of custody in England and Wales, December 2007 and Ministry of Justice, Prison Policy Update Briefing Paper, 31 January 2008 Back

137   www.justice.gov.uk/news/newsrelease110308c.htm Back

138   Ev 76 Back

139   Ministry of Justice, Offender Management Caseload Statistics 2006 indicate that of the 77,982 persons in prison establishments and police cells on 30 June 2006, 5,960 were there on sentences less than or equal to six months and 2,525 on sentences greater than six months but less than 12 months. (December 2007), Table 8.1 Back

140   Ibid, Table 7.1 Back

141   Ibid Back

142   Criminal Justice Act 1991 Back

143   HC Deb, 13 December 2007, col. 909W Back

144   Ministry of Justice, Offender Management Caseload Statistics 2006, Table 7.3 Back

145   Ibid Back

146   Ministry of Justice, Offender Management Caseload Statistics 2006, Table 8.1  Back

147   Ministry of Justice, Offender Management Caseload Statistics 2006, Table 7.1 Back

148   Ev 44. See chapter 7 for discussion of concerns raised about women  Back

149   Ev 106 Back

150   Q1 Back

151   Q27 (HAC) Back

152   Ev 82 Back

153   Q 407 Back

154   Ev 97 Back

155   For example see Ev 51, Ev 107-108 and Ev 120 Back

156   Q 76 Back

157   Ev. 20 Back

158   R. v Seed & Anor, [2007] EWCA Crim 254, 13 February 2007 www.bailii.org/ew/cases/EWCA/Crim/2007/254.html Back

159   Q 207 Back

160   Ev 62 Back

161   Q129 Back

162   Ev 68 Back

163   Ev 25 Back

164   Ev 88 Back

165   Ibid Back

166   Q 97 Back

167   Ev 107 Back

168   Ev 54 Back

169   Q 76 Back

170   Ev 120 Back

171   Q 372 Back

172   Ev 26 Back

173   Ev 70 Back

174   Ev 32 Back

175   Ev 105 (JSC) Back

176   Q 116 Back

177   Ev 26 Back

178   Ev 88 Back