Over the past year we’ve seen the debate around sentencing grow, and throughout that relatively short period, the focus of it has changed quite significantly. Pressure has been mounting to restrict the use of short custodial sentences – thanks in no small part to the campaigning and influence of the voluntary sector – and there was vocal, ministerial backing to do so from the previous Secretary of State for Justice, David Gauke MP, and former Minister of State at the Ministry of Justice, Rory Stewart MP.

The government’s rhetoric has since become more punitive, signalling a change in direction for sentencing policy. Before the December 2019 election was called, the Ministry of Justice conducted a rapid internal review of sentencing, exploring legislation that would keep people in prison for longer, which Clinks fed into. Not long after, the Queen’s speech announced a new Sentencing Bill that, if passed, would do just that by abolishing automatic half-way release for serious offences. Steps have already been taken in this direction – in January the House of Lords agreed changes to secondary legislation that from April will mean people serving sentences of seven years or more, for certain offences, will spend two thirds of it in prison.

Sentencing policy is likely to remain a priority for the government in the coming year. We hope that any sentencing reform will have a public and transparent consultation process that enables the voluntary sector to feed in. With that in mind, Clinks has published a briefing to support the sector to engage in future debates on sentencing. Our briefing considers three key asks of sentencing reform, looking at trends, the policy asks from voluntary organisations, and the potential challenges of each. These asks are:

1. Reverse sentence inflation
2. Reduce the use of short custodial sentences
3. Increase the use of community alternatives.

This blog summarises key points from the briefing, including the situation in Wales.

What’s happening in Wales?

Since 2013 the Wales Governance Centre at Cardiff University has been collecting Wales-only data which shows the trends occurring specifically in Wales:

• Sentence inflation: The average custodial sentence length in Wales has increased from 13.3 months in 2013 to 14.5 months in 2018
• Higher use of short custodial sentences: A higher proportion of sentences of less than 12 months were also given out in Wales (67.7%) compared to England (62.6%)
• Declining community sentences: The use of community sentences decreased in Wales by 18% between 2015 and 2018.  

These are similar to the overall trends for England and Wales - which perhaps isn’t surprising given that criminal justice is not a devolved area of policy and decisions are therefore made by Westminster for both countries. However, the two also face distinct issues. Wales in particular has consistently been recording a higher rate of imprisonment than England. In fact, in 2019 it was found that Wales had the highest imprisonment rate in Western Europe. It’s important to keep this in mind for further debate on both devolution and sentencing.

Reversing sentencing inflation

England and Wales has an overcrowded and under-resourced prison estate with an ageing infrastructure and an ageing prison population. In part, this is because sentence lengths are getting longer. For example, in the past decade the number of people sentenced to over 10 years in custody has trebled.

The pressure this is having is clear – prisons are increasingly unsafe with rising violence, drug use and disturbing levels of self-harm and suicide. The prison inspectorate also continues to find that prisoners are confined to their cells for far too long in many prisons. This restricts their access to voluntary sector services which provide meaningful activity, vital support and help preparing for release. These conditions, combined with the increasing lengths of time many people face spending in prison, can seriously impact the mental health and wellbeing of people in prison and their ability to hope and plan for the future.   

The recent changes to sentencing policy made via secondary legislation, and the direction currently signalled by government rhetoric, will likely drive a further increase in prison population numbers which will in turn further impact conditions and safety in prisons.   

Reducing the use of short custodial sentences

There is a growing body of evidence that shows short custodial sentences are ineffective, producing higher rates of reoffending than community sentences. Yet despite this the use of short custodial sentences remains high, and disproportionately so for women.

Short custodial sentences are highly disruptive and resettlement support is impractical – there is not enough time to provide meaningful interventions or ensure basic necessities and support are in place for people on release. Women from Wales who receive short custodial sentences face a distinct set of challenges because there is no women’s prison in Wales. For these women, transitioning back to the community, linking with community-based services and continuity of support, becomes significantly harder. This makes it all the more concerning that in 2018, 69% of women given immediate custodial sentences in Wales were sentenced to less than six months.

There have been many calls to address these issues through the implementation of a presumption against short sentences, in theory making it harder for courts to hand them out and reducing their use. However, there may be some negative unintended consequences of doing so which need to be considered. Data suggests there has been a negative impact on women in Scotland where a presumption has been implemented. There is also the potential for such a policy to conflict with youth justice campaign-asks to keep time in prison for children as short as possible, where it is deemed necessary. Policy direction appears to have moved away from a presumption for now, but if it were to be implemented successfully there will need to be clear guidelines and monitoring to ensure against these unintended consequences.

Increasing the use of community alternatives  

Community alternatives have been shown to be more effective at reducing reoffending and yet they have been in decline for over a decade. This has largely been put down to a lack of sentencer confidence in them. Pre-sentence reports are a key area that need improving in order for sentencers to understand what is available in the community and trust community sentences. More time and resource is needed for in-depth reports that can detail the ways in which community options can support people to address the drivers of offending.

However, community alternatives all too often lack investment. To provide effective, sustainable provision there needs to be greater investment in community services, including tailored support for particular cohorts such as women and young people, and treatment programmes.

There are risks that community sentences will become more punitive, as the drive to convince people that they are ‘tough’, credible punishments increases. In doing so the conditions of community sentences might become harsher and disproportionate. This also increases the likelihood of breach which could essentially end up providing another track into the prison system.

What next

We will watch the developments on sentencing policy and keep Clinks members informed. We hope that our briefing will support you to respond to proposed future changes. If you have any questions about the issues raised here please contact me Lauren Nickolls, Policy Officer, at lauren.nickolls@clinks.org.