Background

1.  Changes in sentencing policy and practice leading to longer sentences have been a significant contributor to the unexpected and unplanned increase in both prison and probation populations. We urge the Government to address sentencing policy in a more considered and systematic way and to reconsider the merits of this trend. This would also provide an opportunity to deal with the proliferation of a complex range of unimplemented, or ineffective provisions. (Paragraph 17)

2.  The sentencing regime has been complicated by both the pace and the volume of constantly changing legislation. In addition to dealing with new or short-lived criminal offences, sentencers are faced with Acts intended to simplify and clarify sentencing regimes that are themselves swiftly amended. The Government should undertake much more effective policy appraisal in advance of legislation, rather than implement hasty legislation which has previously resulted in unplanned but predictable consequences. (Paragraph 20)

3.  The Criminal Justice Act 2003 is a particular example of legislation which was not thought through and had inadequate provision for its implementation. (Paragraph 21)

4.  Lord Carter's review was a missed opportunity for a fundamental consideration of problems with sentencing and provision of custodial and non-custodial facilities in England and Wales. We share the concerns expressed to us that Lord Carter's review was based on wholly inadequate consultation and a highly selective evidence base. (Paragraph 29)

5.  The Government's focus on a huge public investment in building more prison places is a risky strategy. Building new prisons will not solve the fundamental and long-term issues that need to be addressed in order to manage the escalating prison population and move towards an effective sentencing strategy. Moreover, this approach was initiated without sufficient investigation into the costs and benefits and in spite of the Government's own statements that the provision of new places does not present a long-term solution to the current prison crisis. (Paragraph 33)

6.  Lord Carter's recommendation for the consideration of potential longer-term mechanisms to provide structure to sentencing are welcome. Nevertheless, we are concerned that an ambitious timetable was set for the working group tasked with this consideration. The Government should not seek to implement major changes in this area without effective evaluation of the potential consequences and the resources required to make such changes effective. We will continue to monitor developments in this area. (Paragraph 38)

Imprisonment for Public Protection sentences and the pressure on the Parole Board

7.  The primary objective of Imprisonment for Public Protection (IPP) is the prevention of future harm and offending by incarceration, rather than punitive imprisonment triggered by an actual offence, or rehabilitation. We believe that such preventive detention has to be a rare exception. The use of other, less draconian, measures can be used to manage the risk of individuals to re-offend. Preventative civil orders such as ASBOs, Serious Crime Prevention Orders or Violent Offender Orders, are a complement to Imprisonment for Public Protection sentences where the latter would be disproportionate. Yet, neither the criminal justice system nor civil orders can eradicate the risk of serious offending or re-offending by dangerous individuals. The same problem arises with measures under mental health legislation. Our society will never be a risk-free one; it would be wrong to create the expectation that it can be. (Paragraph 45)

8.  Where continued imprisonment for public protection in the form of an IPP sentence is narrowly targeted at those offenders who pose a very serious risk to the public, and is established on the basis of conclusive evidence before a court, we believe it can be a necessary, effective and proportionate penal intervention. (Paragraph 46)

9.  We stress that, as a matter of policy and common sense rather than law, it is wholly indefensible to incarcerate prisoners of any category beyond the expiry of their tariff or their eligibility for release on licence simply because of a lack of resources on the part of HM Prison Service or the Parole Board. (Paragraph 55)

10.  Imprisonment for Public Protection sentences should only be imposed with a tariff of a length giving the Prison Service a realistic chance to offer the necessary interventions and programmes to allow the Imprisonment for Public Protection prisoner to reduce his or her risk factors and which give the Parole Board the time to carry out the relevant assessments and hearing to determine whether IPP prisoners should be released on licence. Where IPP sentences with tariffs as short as 28 days have been imposed, it is disturbing but unsurprising that large numbers of IPP prisoners have to remain in prison beyond expiry of their tariffs as there is insufficient time for proper completion of rehabilitative courses and programmes and for the Parole Board to carry out the relevant assessments. (Paragraph 56)

11.   The removal of judicial discretion in relation to the imposition of Imprisonment for Public Protection sentences for certain second-time offenders was a retrograde step. (Paragraph 61)

12.  The substantial number of Imprisonment for Public Protection sentences with short tariffs demonstrate that this type of sentence has not been targeted at those offenders who positively pose a grave risk to the public for fear of committing serious violent or sexual offences, but has been imposed on a much larger group of offenders whose offending behaviour does not merit a disposal as draconian as an IPP sentence. It is difficult to understand why an offender who might only receive a short determinate sentence should be given an Imprisonment for Public Protection sentence for having a previous conviction for a comparatively minor offence and be considered as 'dangerous' and thus merit an indefinite custodial sentence. (Paragraph 62)

13.  We welcome the changes made to the Imprisonment for Public Protection sentence provisions in the Criminal Justice Act 2003. Judges will now regain unfettered discretion in relation to the imposition of Imprisonment for Public Protection sentences so that this type of sentence can be targeted at those offenders posing a very real and serious risk to the public. However, we will be keeping a close eye on the impact of the changes to Imprisonment for Public Protection sentences as they by no means guarantee an effective and appropriate structure for risk based sentencing. (Paragraph 68)

14.  The system of Imprisonment for Public Protection sentences presupposes a rigorous risk assessment prior to sentencing so as to put the sentencing judge in a position to make an informed and reliable decision on the risk to the public an offender poses. Robust pre-sentence assessment procedures need to be put in place to allow the reformed system of Imprisonment for Public Protection sentences to work in the way Parliament intends. We believe that, in order to be effective, Imprisonment for Public Protection sentences require the judge to be provided with a pre-sentence report including a comprehensive risk assessment. We believe that the Government needs to make adequate resource provision for these purposes. (Paragraph 72)

15.  The Government failed to engage in adequate resource and capacity planning for the coming into effect of the Imprisonment for Public Protection sentence provisions in April 2005. Imprisonment for Public Protection sentences were the 'flagship' in the Government's crime reduction and public safety agenda in the Criminal Justice Act 2003, but this policy was not accompanied by the level of custodial resources required to make IPP sentences work. (Paragraph 75)

16.  Although the Government has increased the financial resources of the Parole Board we doubt whether this investment will significantly and sustainably reduce the pressure on the Board caused by Imprisonment for Public Protection sentences. The availability of judicial members of Parole Board panels will remain an issue unresolved by an increase in the Board's budget. It needs to be solved as a matter of the greatest urgency as capacity shortages of Parole Board panels directly affect the liberty of the subject where decisions relating to release on licence are concerned. (Paragraph 77)

17.  Realistic resource planning, both for the Prison Service and the Parole Board, cannot be done in the absence of centrally-held comprehensive tariff expiry and release eligibility data. Collating such data is not a matter of large and complicated databases and programmes like the ill-fated C-NOMIS. Collating these data has to be seen as a core management task for NOMS and the Prison Service. We recommend that such a database be created immediately and expect to be informed of the progress of the central collection of tariff and release eligibility data of all categories of prisoners. (Paragraph 80)

18.  The Parole Board is charged with making judicial decisions about the sentence length for life and Imprisonment for Public Protection prisoners. It is absolutely vital for the Board to be able to draw on the resources and personnel (including, crucially, members of the judiciary to sit on lifer or IPP panels) to carry out its judicial work. The Ministry of Justice should ensure the adequate functioning of the Parole Board as a court. We recommend that it take urgent action to discharge this duty. (Paragraph 83)

19.  Where the Parole Board operates as a court effectively determining the length of custodial sentences for a large number of prisoners it will need the requisite powers to discharge its functions appropriately and in a timely fashion. We recommend that the Parole Board be provided with powers to compel the attendance of witnesses and to make wasted costs orders. (Paragraph 85)

Short custodial sentences

20.  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. (Paragraph 95)

21.  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. (Paragraph 96)

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

23.  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. (Paragraph 102)

24.  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. (Paragraph 107)

25.  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. (Paragraph 108)

26.  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. (Paragraph 111)

27.  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. (Paragraph 116)

28.  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. (Paragraph 117)

29.  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. (Paragraph 118)

Non-custodial responses to offending

30.  The intended switch from the use of short custodial sentences to community punishments in the form of Community Orders and Suspended Sentence Orders has not occurred. Instead, all evidence points to these sentences displacing fines. The 2003 Act, in common with other legislation, seems only to have added to an inexorable rise in sentences. We believe the aim should be to achieve a consensus as to what is the appropriate sentence in different circumstances . (Paragraph 129)

31.  We welcome the Government's recognition of the 'uptariffing' problems caused by Community Orders and Suspended Sentence Orders and the attempts through the 2008 Act to control them. Nevertheless, the lesson of the 2003 Act is that legislation is not a useful mechanism to prevent 'uptariffing'. We urge the Government to bring forward proposals as to how to tackle the issue of 'uptariffing' through non-legislative mechanisms. We suggest that the Government explore public information, sentencing training and effective evaluation and development of local projects as part of these proposals. (Paragraph 130)

32.  The delivery of robust community sentences has the potential to reduce re-offending and re-conviction rates. However, we are concerned that the full package of requirements that can be associated with Community Orders is not being used to its full effect and, as a result, Community Orders are not meeting the purposes of sentencing as envisaged in the 2003 Act. (Paragraph 135)

33.  We recommend that the Government undertake an immediate audit of the use of the twelve potential requirements of Community Orders and of the success of specific requirements in delivering the purposes of sentencing. (Paragraph 136)

34.  Effective community sentences require effective resources. There is no evidence base upon which to determine where resources are most needed for effective sentencing options. (Paragraph 145)

35.  An urgent assessment is required to evaluate whether the additional resources devoted to Probation are at the correct level to support the increase in services that have to be provided as a result of the greater use of community sentences. (Paragraph 146)

36.  The Probation Service does not know with any certainty how many Community Orders it has the potential capacity to deliver within its resources, nor has it determined the full cost of delivering Community Orders; we recommend that this data be collated as a matter of urgency. (Paragraph 147)

37.  We are encouraged by evidence of successful local projects based upon joined-up provision of services at the local level, such as those in Staffordshire and Thames Valley. The local authority is a key partner in the effective delivery of these services for the criminal justice system but also for important areas such as mental health and drug treatment. (Paragraph 157)

38.  We are convinced of the benefits of magistrates being closely involved in the systems that deliver and monitor community punishments. The Government should encourage magistrates to build on the projects that support their engagement in individual areas. However, the Government should also consider more systematic means in order to involve magistrates with the provision of community punishments. (Paragraph 158)

39.   Local areas and individuals cannot operate in a vacuum. The Government needs to implement a sustained delivery and implementation strategy for increased use of community punishments. This is crucial for boosting public confidence in the robustness and efficacy of non-custodial sentences. (Paragraph 159)

Back-door sentencing

40.  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. (Paragraph 170)

41.  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. (Paragraph 171)

42.  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. (Paragraph 175)

Vulnerable people

43.  Categories of offenders such as women, young people and people in need of mental health or drug treatment have been identified as particularly vulnerable in prison. Clearly not all offenders in particular categories can be considered vulnerable or automatically unsuitable for custody and we recognise that there will be offenders who, because of the gravity of their crime and the dangers they pose, cannot be dealt with safely in the community. However, it is generally agreed that more emphasis must be placed on ensuring that those vulnerable people who do not fall into this group are not sentenced to custody for want of practical community alternatives. (Paragraph 178)

44.  We support the views expressed by Baroness Corston, that there is a need for more alternative sanctions and disposals which are gender-specific and in which sentencers have confidence. We recommend the extension of a larger network of community centres. In particular, we support services set up explicitly to consider the needs of women with children and to develop specific measures to support women and their families. (Paragraph 192)

45.  We recommend that NOMS conduct a full regional audit of the provision of services and examine the current scale and nature of provision in comparison to the scale and nature of need. Where gaps are identified these should be built as a matter of urgency into programmes commissioning women' services. (Paragraph 194)

46.  The failure to invest in community provision for women is a central factor in driving the sustained increases in the number of women sentenced to custody. We welcome the Government's acceptance of most of the recommendations of the Corston Report, as well as the recent NOMS National Service Framework for Women Offenders and the Offender Management Guide to Working with Women Offenders. We are also encouraged that the Secretary of State for Justice emphasised his commitment to reducing the number of women in custody. However, we share the disappointment expressed to us by the Chief Inspector of Prisons and the Director of the Prison Reform Trust that sufficient resources have not been made available to deliver appropriate community provision for women and their regret that such provision for women has been overshadowed by the drive to expand prison places. (Paragraph 199)

47.  We invite the Government to reconsider the recommendation to establish a Commission for Women Offenders which would provide a stronger driver to the implementation and resourcing of Corston's reforms. We are convinced that women's offending will only be reduced by urgent investment in a network of community provision designed for women offenders. In addition, we believe that the small local custodial units with 20-30 places suggested by Baroness Corston, should be genuinely tested through a pilot unit in an area where there is currently a gap in provision for women, such as Wales or the South West. This would allow for evaluation of whether the working groups concerns are well founded or can be dealt with. (Paragraph 200)

48.  Health Authorities should not have a choice as to whether or not they fund diversion and liaison schemes with criminal justice agencies. Accordingly we recommend that there should be a statutory requirement to provide funding for these schemes. The Ministry of Justice should work with the Department of Health to promote knowledge and understanding of diversion and liaison schemes amongst NHS commissioners. (Paragraph 206)

49.  Comprehensive court diversion and liaison schemes should be made available nationally as a matter of urgency. Whilst we welcome efforts to make NHS commissioners more aware of the benefits of such schemes, we believe that simple encouragement to fund them is insufficient. Strengthening guidance on diverting mentally disordered offenders will be similarly ineffectual while there continues to be a lack of suitable hospital and community provision to divert them into. Without additional funding the availability and effectiveness of such schemes is unlikely to improve. (Paragraph 208)

50.  We consider sentencers would benefit from better guidance on their options with regard to persons requiring different levels of mental health support—including diversion schemes and mental health treatment requirements as part of a community sentence. We recommend that such guidance is provided as soon as possible. (Paragraph 210)

51.  We recommend that NOMS work with the Department of Health to conduct an audit in each region as to how much community mental health provision is available to those outside prison in relation to needs. (Paragraph 215)

52.  Addressing the crucial issue of the lack of community mental health provision for offenders will require co-operation between Primary Care Trusts, regional NOMS commissioners and Probation Trusts. The Government needs to take a lead role in supporting and structuring engagement between these organisations, and should not simply rely on commissioning to solve these problems. (Paragraph 218)

53.  We agree with the Sainsbury Centre for Mental Health which recommended a review of the facilities available to prisoners for compulsory mental health treatment. This should consider the scope for timely transfers to treatment in facilities other than simply medium-secure accommodation. (Paragraph 222)

54.  We recommend that the current review by Lord Bradley into the diversion of offenders with mental health problems from the criminal justice system and prison conduct a needs-based review of mentally disordered offenders, including an examination of the need for various types of prison and other residential treatment and community based treatment. (Paragraph 224)

55.  The Government should urgently proceed with assessing the potential impact of Mental Health Courts. We believe that the Bradley Review of the diversion of individuals with mental health problems from the criminal justice system and prison should examine and consider the costs and benefits of Mental Health Courts. (Paragraph 225)

56.  We welcome the recent changes to responsibility for youth justice policy and sponsorship of the Youth Justice Board which became the joint responsibility of the Ministry of Justice and Department for Children, Schools and Families following machinery of government changes in June 2007. We urge the Government to address the welfare of young offenders as an explicit purpose of sentencing. (Paragraph 229)

57.  We welcome the introduction of the conditional caution as an additional mechanism to keep low level cases out of the youth justice system. It is essential that an assessment of the resources required to support their use is made prior to their implementation, and that implementation is supported by clear guidelines on their intended use. (Paragraph 234)

58.  There should be a stronger Crown Prosecution Service policy against prosecution in less serious cases when other more effective measures are available. The Department for Children, Schools and Families, the Ministry of Justice and the Youth Justice Board must work together to develop proposals to ensure that schools and children's care homes expand the use of Restorative Justice for minor incidents. (Paragraph 236)

59.  We suggest clear guidelines should be introduced on the tiered approach to the use of the Youth Rehabilitation Order. We also have concerns regarding the cost implications of implementation and the capacity of Youth Offending Teams and partner agencies to deliver the range of requirements necessary to meet the needs of the courts. Lessons must be learnt from the implementation of the generic Community Order, where key requirements have not been used because of lack of resources to deliver them. (Paragraph 239)

60.  We share the concerns of the Joint Committee on Human Rights that simply making Intensive Supervision and Surveillance part of the Youth Rehabilitation Order does not do enough to make custody a last resort. (Paragraph 242)

61.  We are encouraged that the Government shares our view that there is excessive use of custody for young offenders. The Ministry of Justice should concentrate on finding mechanisms for driving down the numbers of young offenders in custody. However, current proposals do not go far enough. There is a need for clear guidance to ensure that the Intensive Supervision and Surveillance requirement is used as a last resort and for Youth Offending Teams and courts to ensure that they are realistic about breaching and re-sentencing young people on these orders who, by their very nature, are particularly vulnerable. It is essential that the Sentencing Guidelines Council produce guidelines for the new Youth Rehabilitation Order before implementation. We also have concerns about the funding and the availability of programmes to meet the needs of the court in sentencing young people to this requirement. It is imperative that funding is prioritised to ensure that young people do not end up in custody for want of a place on an Intensive Supervision and Surveillance Programme. (Paragraph 244)

62.  We have concerns about resources and the capacity of Youth Offending Teams to implement the intensive fostering requirement for young people whose offending is linked to their home environment. We recommend that this element of the 2008 Act is not implemented until the Youth Justice Board is confident that Youth Offending Teams have sufficient resources to do so. (Paragraph 245)

63.  We are concerned that the Youth Justice Board has been unable to reduce or stabilise the youth custodial population and that continued growth is reversing earlier progress in improving the juvenile estate. The efficacy of the use of very short custodial sentences for young people should be reviewed as a matter of urgency. We agree with HM Inspector of Prisons that, where young people have to be held in custody, it is imperative that vulnerable young people are held in establishments close to their families. (Paragraph 249)

64.  There is an urgent need to examine the needs of vulnerable young people in the youth justice system and the appropriateness of secure accommodation for those who need to be held in custody. Better alternatives to secure accommodation for vulnerable young people who do not represent a danger to the public should be found. (Paragraph 254)

Conclusion

65.  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. (Paragraph 258)

66.  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. (Paragraph 259)

67.  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. (Paragraph 267)