255.  The Criminal Justice Act 2003 was designed to provide a coherent overall structure to sentencing in England and Wales by setting out in legislation, for the first time, the purpose of sentencing. This report has demonstrated how and why the 2003 Act has fallen short of its aims. The Prison Reform Trust said "in fact, it has failed entirely, since it was explicitly not a raft of disparate measures but an attempt at a coherent strategy".[388]

256.  The practical implications of the failures of the 2003 Act are not limited to, but are most recognisable in, the current prison overcrowding crisis. A general trend towards longer sentences in the Crown Court has contributed to the long-term upward trend in the prison population, but many of the starkest short-term pressures have arisen from the 2003 Act-in particular the impact of Imprisonment for Public Protection sentences. While the failure to promote a shift from short custodial sentences to community penalties has not been such a considerable influence on prison overcrowding, this issue is at the heart of the failure to build a coherent strategy for sentencing. It is a sign that there is no coherent approach as to when and for whom different sentences are appropriate.

257.  The excessive use of custody for particular vulnerable groups was a central concern of many witnesses. There was an overwhelming consensus that, despite the 2003 Act, there continue to be many in prison whose offending behaviour and other specialised needs could be dealt with both more effectively and more appropriately in the community. In particular, these are women, young people and people with mental health and substance misuse problems. We heard that the reasons for this are complex. Paul Cavadino of Nacro suggested that it is "partly due to dysfunctions within the system, and it is not simply due to the general rising level of punitiveness in sentencing".[389] The Council of HM Circuit Judges suggested that these failings relate particularly to a lack of community provision for such groups, stating that it "does not believe that courts routinely pass custodial sentences on vulnerable offenders if there is a viable alternative available".[390] The Magistrates' Association reminded us that "there should be no assumption that because people come from vulnerable groups then prison is inappropriate. There will be circumstances when this is the right disposal; people are given custodial sentences because they have committed serious crimes. There are however, circumstances where it would be extremely helpful to have better provision elsewhere for those with particular needs".[391]

258.   One of the key lessons of the 2003 Act and the current sentencing system is that we must be able to implement policy aims. Lord Woolf commented that: "The Act was very well intentioned, but...we did not have the resources to make the punishments in the community work well, and we did not have the resources to do the other things intended by the Act".[392] Throughout our inquiry we saw that failures in anticipating resource needs and providing appropriate resources for the implementation of policies stood in the way of results.

259.   The experience of the 2003 Act also points towards the importance of not assuming that legislation is the only mechanism to achieve policy aims—it is only one tool and, in many cases, not the most appropriate tool. For example, the deficiencies in the 2003 Act illustrate the limited efficacy of legislation in bringing about cultural change such as a shift from the use of short custodial to community sentences.

260.   We have recently announced an inquiry into Justice Reinvestment. In this inquiry we hope to go further in tackling questions such as:

• the extent to which it is legitimate to take resources into account in sentencing and criminal justice policy;
• whether there are locally based approaches that can reinvest money spent on prisons in areas such as healthcare and housing that help prevent people committing criminal acts; and
• questions around what we consider to be effective in a criminal justice context.

Public Opinion and Sentencing

261.  While we hope this new inquiry into Justice Reinvestment will provide further ideas as to how to build a coherent and effective criminal justice framework, there is one final gap which the Government needs to find the courage to tackle—the public debate. Witnesses emphasised to us, over and over again, the links, sometimes perverse, between public opinion and sentencing policy.

262.  Lord Woolf argued that public opinion had a direct impact on the increase in the prison population. He explained: "I believe that society's attitude has become more punitive as reflected in the media...there has been competition as to which political party can have the reputation of being tougher on crime. I think that rhetoric has an effect on sentencing".[393] However, the message that came through from other witnesses was that in fact the media are not accurately reflecting public opinion, and that public opinion itself was liable to change if given information. The Centre for Crime and Justice Studies conducted research where people were asked to choose an appropriate sentence on the basis of a mock-up newspaper report and then asked to choose an appropriate sentence for the same case after being given further information. 49.5% of those who originally chose the prison option changed their minds. [394] Meanwhile, witnesses such as Professor Neil Hutton raised concerns that politicians might be prevented from presenting a rational, evidence based penal policy because of the risk of being portrayed in the media as being "soft" on crime.[395] He went on: "This has not been an orchestrated campaign nor has it been the product of new legislation. This can only be explained by a largely unconscious judicial response to an increasingly punitive cultural environment...the prison population has in effect been 'talked up'".[396]

263.  The suggestion therefore was that the cultural shift which the 2003 Act was intended to create did not happen because the Government's handling of public debate around these issues was weak—Rethinking Crime & Punishment described it as a "comedy of errors".[397]

264.  We have identified a need for clearer thinking about the role of punishment. The Criminal Bar Association suggested "what is essential in order to achieve an effective long-term sentencing policy is an informed acceptance by the public, as well as those more directly concerned with the criminal justice system, that success is not measured by the length of a sentence of imprisonment".[398] The Dialogue Trust recommended that "the government embarks on a process of education and a programme of information with regard to effective sentencing and, as a result, effective crime prevention. This should be supported by the police, Probation and the Prison Service".[399] The NSPCC strongly recommended that the Government "sponsor market research...explore what construction or expression could be used effectively by a judge to explain to the public what a sentence is likely to mean and what the process is for supervising offenders".[400] Professor Hutton suggested that the creation of a new institution to do this work "some sort of Sentencing Commission, which can remove some of the political sting from penal policy making and allow wider public involvement in the development of penal policy […] This should engage the public through various techniques including wide consultation, focus groups and deliberative polling.[401]

265.  Barbara Tombs of the Vera Institute, New York commented that illustrating the cost of custody as against the delivery of other public services had had a significant impact on public opinion about sentencing in the U.S.A.[402] We have seen how the implementation of the 2003 Act suffered through lack of understanding of, or lack of preparation for, its resource implications. Witnesses told us is that we must have a better understanding of the resources used in criminal justice because only then can we present them to the public in a way that is understandable. Lord Woolf said: "in my view if the public could appreciate that if it is desired to have more people in prison that could be done but it would mean one less hospital, one less new school and so many fewer teachers then some of the absurdities that now take place in the prison system might be avoided".[403] Rt Hon Lord Phillips of Worth Matravers, the current Lord Chief Justice, also suggested this was a key area for public debate: "It does seem to me that one ought to be asking the question: "How much are we as a society prepared to pay to punish people?" Because, if you are paying money for punishing them, you are not spending the money for other things, which might be schools or hospitals or taking action to try to prevent them turning into criminals in the first place".[404]

266.  JUSTICE told us: "The current political climate offers challenges to reform of the sentencing framework, but...a combination of greater clarity in sentences; greater involvement of communities in the criminal justice process through community justice initiatives; better treatment of victims...and a focus on reparation to victims and communities including through restorative processes, will help to increase public confidence in the system and produce public support for these reforms".[405] Lord Woolf believed that the element that was missing to making all this happen was political will: "I believe that sometimes we lose sight of what would be a really effective sentencing policy and the results show it...it first requires the political will to do it and so far there is very little evidence that it exists".[406] This key area is one we hope to illuminate in our Justice Reinvestment inquiry, thereby contributing to the development of an informed public debate.

267.  The failures of the Criminal Justice Act 2003 have been compounded by the environment in which it came into operation—one where proper information about sentencing is not available to the public. At a national level those who engage in public debate on sentencing policy risk being labelled 'soft on crime'. However, we also recognise that the debate about sentencing and criminal justice policy is often a local one. Coverage of court processes in local media has declined; and, while engagement of sentencers in local projects is done well in some areas, it must be encouraged throughout England and Wales. We urge the Government, the political parties and the media to promote informed and meaningful debate about sentencing policy.

389   Q 77 Back

390   Ev 25 Back

391   Ev 82 Back

392   Q 7 (HAC) Back

393   Q 12 (HAC) Back

394   Grimshaw.R (2006) What the Public Really Thinks about Community Sentences. London: Centre for Crime and Justice Studies. Back

395   Ev 66 Back

396   Ev 67 Back

397   Esmée Fairbairn Foundation, Rethinking Crime & Punishment: The Report, December 2004, p. 24 Back

398   Ev 31 Back

399   Ev 41 Back

400   Ev 91 Back

401   Ev 69 Back

402   Committee visit to North America in November 2007 Back

403   Q 39 Back

404   Q 202 Back

405   Ev 72 Back

406   Q5 Back