House of Commons - Justice

Select Committee on Justice Fifth Report

6 Back-door sentencing

160. A coherent sentencing structure is not just about the decisions made at the point of sentence-for example whether a person is fined or given a community sentence or the length of a custodial sentence-but also what happens at the end of that sentence. This brings in issues such as the consequences if someone does not comply with the terms of their sentence. The 2003 Act made a number of changes to these areas, which Nicola Padfield called "back-door sentencing".[245] Our witnesses were particularly critical about how changes to the systems for recall following breach of licence, or for dealing with breach of community orders, were pulling people into prison due to a failure to supervise them effectively or support them in complying with the conditions laid upon them.

Recalls and the prison population

161. The 2003 Act overhauled the system of release and licence for prisoners on sentences over 12 months (and would have changed systems for people on short-term custodial sentences, but those provisions have not been brought into effect). Previously, offenders on sentences of less than four years were released on licence from prison half-way through their sentence and then released from licence at the three-quarter point. The final quarter of the sentence was spent 'at risk'—if a further crime was committed the time remaining could be added as an additional custodial sentence to any further penalty. In the 2003 Act the licence period was extended to last the full sentence. The 2003 Act also allowed the Secretary of State to lay down standard conditions of licence and set procedures for when licence conditions were alleged to have been breached and the individual was recalled to prison. The new procedures transferred the responsibility for deciding whether a person should be recalled to prison from the Parole Board to the Secretary of State-effectively the Probation Services. The Parole Board, however, reviewed all recall decisions to determine whether they are fair; the offender also has a right of appeal to the Parole Board against the recall decision. When considering the decision to recall, the Parole Board must also determine either the date on which the prisoner will be re-released or the date of the next review at not less than annual intervals.

162. Our attention was drawn to the number of prisoners being recalled to prison for breach of licence because it is an area where numbers are rising rapidly. The Prison Reform Trust stated that in the five years to 2005 there had been a 350% rise in the number of offenders recalled to prison for an alleged breach of conditions.[246] In 2006-7 11,231 offenders were recalled to prison compared to 8,678 the year before—a 29% increase in one year alone.[247] This compares to 2,457 people recalled during 2000-1.[248] Although the overall percentage of the prison population made-up of recalled prisoners at any one time is relatively small, the Prison Reform Trust pointed out that it was rising very quickly—both because of the increased number of persons recalled and because the changes to licence arrangements in the 2003 Act meant that individuals were liable to stay in prison longer if they are recalled.[249]

163. We heard two main criticisms of this system for recall of prisoners: first, that people are not supervised effectively in the community when on licence and that this contributes to the level of breaches and, secondly, that the system was too inflexible and focused on returning people to custody rather then enabling them to comply with conditions.[250]The Parole Board had particular concerns about how the increasing numbers of recalls impact on their resources—particularly in light of the other pressures on these in relation to Imprisonment for Public Protection (see Chapter 3).

164. Witnesses presented a picture of a supervision system that was not able to manage people effectively whilst they were on licence. Lord Woolf was concerned that those on licence were almost set up to fail because "the way we look after those who are punished in the community has deteriorated".[251] He raised concerns about overstretched probation resources which made it difficult to provide effective community supervision. The Council of HM Circuit Judges concurred, pointing out that "breaches will continue to occur as long as underlying problems remain".[252] If the underlying issues are not dealt with either in the prison sentence or during the licence period then the offender is much more likely to breach the conditions. The Prison Governors' Association raised as a particular problem the fact that offenders with substance abuse problems may have chaotic lifestyles so that keeping to a regular schedule of appointments would be a real challenge. Unless we have a more "realistic" expectation of individuals on licence then we are bound to see breaches of those conditions.[253]

165. We are concerned at evidence of the inflexible system of response to breaches. The Prison Reform Trust told us that using prison as a means to enforce breach of conditions: "…is a non-sophisticated response in that it is a default setting […] if somebody does go back to prison, if it is a relatively minor infraction, such as, for example, being late for appointments, then if you send them back to prison and they can, in practice, spend most of the rest of the face value of the sentence in custody, that is disproportionate in relation to the seriousness of what the person has done".[254] In answer to a recent question, the Ministry of Justice was unable to provide a breakdown of reasons why offenders were recalled, although it was able to state that only about a quarter of those recalled were called back for committing a further offence.[255]The Prison Reform Trust noted that the most frequent reason given for recall is that the individual is "out of touch"^.[256]

166. The Parole Board had particular concerns about the current recall system due to the strain on its resources and questioned whether looking at every single recall case added value-only a small number of cases might concern those who were considered dangerous or serious offenders. Its view was that the current system was "wasteful of resources, does little to protect the public or to prevent re-offending".[257]The length of time taken by the Parole Board to hear recall cases has been held in the courts to be in contravention of the European Convention on Human Rights; the reason given by the Parole Board for the length of time taken to get to a hearing was that lack of resources meant that it was not possible to have the hearing any sooner.[258]

167. The Government is aware of the concerns raised and the 2008 Act contains provisions to change the recall system. The 2008 Act provides for a revised recall system, including a fixed period of recall whereby an eligible recalled prisoner would be released automatically after 28 days provided the Secretary of State is satisfied that he will not present a risk to the public.[259]This means both that the Parole Board would not be required to review every case and that offenders would not be waiting in prison for long periods awaiting that review. Referral to the Parole Board of recalled prisoners ineligible for automatic release (extended sentence prisoners, those sentenced for a specified offence and those not considered suitable for automatic release) will take place after the 28-day period or before if the prisoner makes representations to that effect.[260]

168. These new arrangements seem likely to ease some of the resource pressures on the Parole Board and to tackle concerns that individuals were receiving potentially very long custodial periods for relatively minor acts that breached their licence conditions. As such, the Parole Board told us that they supported the principle of the 28-day fixed recall system.[261]The Prison Reform Trust commented that, on practical grounds, the proposed system could be an improvement: "so, for the more minor infractions it would be sensible to have a limit. What tends to happen at the moment is that people often stay in custody, having been sent back for relatively minor failures to comply, for very long periods, because there is no realistic hope of the Parole Board reviewing the case within a very short period of time".[262]

169. However, the 28-day fixed recall period does not tackle the more fundamental issues expressed to us, such as the fact that the recall system is too inflexible to assist people to comply with their licence conditions rather than simply returning them to custody. Simon Creighton expressed concern that a 28-day recall period could worsen matters because it would face recalled prisoners with all the problems of any short sentence-breaking ties and systems that support an individual and help them not to re-offend, without helping them in any other way to tackle the problems. He suggested that the result might be simply a revolving cycle of individuals coming back, and back again, for 28-day periods because re-offending was not managed. The Committee stage within the House of Lords of the 2008 Act involved significant debate on these provisions, highlighting the inflexibility of the 28-day fixed period.[263]

170. We welcome the Government's acknowledgement that the recall system set out in the 2003 Act is not appropriate, as evidenced by the changes to the system in the 2008 Act. The 28-day fixed recall system should deal with particular concerns about the strain placed on Parole Board resources by the need to review every recall decision.

171. We remain concerned, however, that the system for recalling prisoners on breach of licence is unnecessarily rigid. Changes to the recall system do not extend the flexibility that people working with offenders need if they are to enable the highest levels of compliance.

Breach of Community Sentences

172. Similar concerns about inflexibility were raised with regard to breach of community sentences. The 2003 Act set out procedures for breach of the new community sentences. The Centre for Crime and Justice Studies report that their research suggested that where orders are breached, sentencers have less discretion than previously to avoid imprisonment.[264] In the past, sentencers could choose to take no action, issue a warning or impose a fine. Probation officers had more discretion about whether they took a breach case back to court. However, when Community Orders are breached, courts can only amend them the order by imposing more onerous requirements, or revoking the order and re-sentencing, possibly with a custodial sentence, even where the original offence was not punishable by imprisonment. When Suspended Sentence Orders are breached, courts can activate the custodial sentence, impose more onerous requirements or lengthen the supervision period.

173. The Centre for Crime and Justice Studies, therefore, argued that there was an urgent need to "address the rise in the number of people who breach community sentences or are recalled to custody for breaching their licence conditions".[265] The Mayor of London's Office also agreed and warned that the increase in custodial sentences for those who breach community penalties "risks undermining the principles of sentencing". It continued: "a better balance must be found between enforcement and enabling offenders to be given every support and opportunity to comply with a community sentence".[266] The trade union and professional association for family court and probation staff (NAPO), described breach as a "nightmare".[267] The Criminal Bar Association warned that a "lack of resources, insufficiently experienced personnel and insufficient facilities will lead to the almost inevitable breakdown of such sentences and the almost equally inevitable imposition of custody".[268]

174. As with breach of licence conditions, witnesses sought a system for breach of community sentence conditions that was flexible enough to support the offender in meeting the conditions. David Faulkner believes that: "breaches of condition should be dealt with firmly, although with more flexibility for those which involve no more than a missed appointment, and it is just as important for the supervisor or offender manager to try and make sure that breaches do not occur in the first place".[269] The Howard League's concerns were with the "inflexibility and automatic nature" of the current system.[270]The Centre for Crime and Justice Studies suggested that a system to enable compliance, rather than counterproductive enforcement, might be developed through a graduated system of positive rewards and a graduated hierarchy of responses to a breach.[271] Clinks suggested that probation staff be given greater discretion to deal with failures to comply with conditions in the context of an offender's individual circumstances—they describe drug rehabilitation scenarios where offenders' chaotic lifestyles are taken into consideration and missing appointments treated as a learning experience.[272]

175. We urge the Government to reconsider the systems by which the Probation Service and the courts are required to deal with breaches of conditions or breach of licence. A more flexible system which enables these services to support compliance, rather than automatically punish what may be minor infringements, would contribute much more in the long run to public protection by preventing re-offending than sending people to prison.

245 Uncorrected transcript of oral evidence on Sentencing Guidelines, taken before the Justice Committee 22 January 2008,(HC 279-i), Q 4 Back

246 Prison Reform Trust, Bromley Briefings, Prison Fact file, December 2007 Back

247 Ministry of Justice, National Offender Management Caseload Statistics 2006, Table 10.8 Back

248 Ibid Back

249 Prison Reform Trust, Bromley Briefings, Prison Fact file, December 2007 Back

250 See for example Ev 19 Back

251 Q 12 Back

252 Ev 24 Back

253 Ev 107 Back

254 Q85-87 Back

255 HC Deb, 4 February 2008, col.941W Back

256 Prison Reform Trust, Bromley Briefings, Prison Fact file, December 2007 Back