Skip to main content

Sentencing White Paper

Volume 805: debated on Monday 21 September 2020


The following Statement was made in the House of Commons on Wednesday 16 September.

“With permission, Mr Speaker, I will make a Statement on the Government’s plans to reform the system of sentencing in England and Wales. This morning, I laid before Parliament a White Paper entitled ‘A Smarter Approach to Sentencing’ and I wanted to come to the House to outline the measures contained within it.

The first duty of any Government is to protect their people, but the complex system of sentencing in England and Wales does not always command the confidence of the public. At one end of the spectrum of offending, there are serious sexual and violent criminals who, by automatic operation of the law, leave prison halfway through their sentence. We are going to ensure that more of these serious offenders stay in custody for longer.

There are also criminals who, while serving time for their offence, may become a danger to the public but who currently would be eligible for automatic release. We are acting to prevent fewer of these offenders from leaving prison without being assessed as safe by Parole Board experts. These measures will keep offenders who pose a risk to the public off the streets for longer and help to restore public confidence that robust sentences are executed in a way that better reflects the gravity of the crimes committed.

At the other end of the spectrum, protecting the public from the effects of lower-level offending means finding new ways to break cycles of crime—to prevent a revolving door of short custodial sentences that we know offer little rehabilitative value. Criminals in that category often have chaotic lifestyles and their offending can be driven by substance misuse, poor mental health or learning difficulties. They often have limited education, few job prospects and experience generational patterns of offending.

Rather than continuing to send them back and forth to prison—doing the same thing but expecting a different result—we instead want to empower the sentencing system to use more effective community sentencing to get them off drugs and into the jobs that we know can lead them to a better life. We will do that by better identifying individual needs, providing treatment options where appropriate and utilising technology, such as sobriety tags, to drive compliance. These measures will support offenders to change their lifestyles for good and, in the process, protect the public from the ongoing effects of their crimes.

The reforms will not work unless they are underpinned by a world-class probation system that can understand and implement sentencing properly, backed up by a high-quality probation workforce. I pay tribute to the probation service and everyone who works within it to supervise offenders. We have set ourselves an ambitious target to recruit 1,000 new trainee probation officers in 2020-21, and over the next few years we are determined to invest in the skills, capability and ways of working that probation officers need to do their job to the best standard.

Within the new probation arrangements, we will unify sentence management under the National Probation Service to further grow confidence between probation and the courts, with which there is a much closer relationship than under the old model. The 12 new probation regions will have a new dynamic framework, making it easier to deliver rehabilitation services through voluntary and specialist organisations. We will legislate to give probation practitioners greater flexibility to take action where offenders’ rehabilitative needs are not being met or where they pose a risk to the public. These measures will empower probation services to be more effective at every juncture of the criminal justice system.

The White Paper also contains measures to reduce stubbornly high reoffending rates by utilising GPS technology to drive further compliance, and to make it easier for offenders to get jobs by reducing the period after which some sentences can be considered spent for the purposes of criminal records checks for non-sensitive roles. In the youth system, it puts flexibility into the hands of judges to keep violent young offenders in custody for longer, while at the same time allowing courts to pass sentences that are tailored to the rehabilitative needs of each young person.

The White Paper builds on the current sentencing framework to create a system that will be much better equipped to do its job effectively, and throughout this document there are contributions from other ministerial colleagues right across Whitehall. That is an acknowledgement of the cross-government approach that will be required if we are going to make a success of these reforms. We have got to come together to fulfil our manifesto commitments, to bring in tougher sentences, to tackle drug-related crime, to treat addictions, to improve employment opportunities for offenders, to review the parole system and much more.

A smarter approach to sentencing will grow confidence in the criminal justice system’s ability to deal robustly with the worst offenders and reduce the risk of harm to the public. It will also be smart enough to do the things that will really bring down crime in the longer term. I look forward to bringing its various measures through Parliament. I commend the White Paper and this Statement to the House.”

My Lords, I start with two preliminary points. The enforcement of the law, particularly the criminal law, is key to the success of the United Kingdom. The White Paper describes the criminal law as

“the basis of a fair, free and safe society.”

It is hard to take lessons on enforcing the law from a Government who will not respect the law themselves. The promotion of law and order from a Government who behave as if the law does not apply to them reeks of the self-serving hypocrisy which makes people hate politicians so much. But it goes much deeper than that. The Lord Chancellor and the Law Officers are the people within government who defend the law. The Lord Chancellor, who is responsible for this White Paper, has said he will resign only where the law has been breached

“in a way which cannot be fudged”.

“Fudged” is defined in dictionaries as “presenting something in a way which conceals the truth”. Can the Minister update the House on whether the Lord Chancellor still considers that the admitted breach of the law in the internal markets Bill can be presented in a way which conceals the truth?

Secondly, the criminal justice system is currently in utter turmoil, with an enormous backlog because of the virus. There are over 40,000 jury trials awaiting disposal, and the Government have been forced to extend custody time limits from six to nine months. The CPS Inspectorate estimated in June that it could take 10 years to clear the backlog. It has got worse since then. This White Paper will be a dead letter if the Government cannot deal with the current crisis. I note that the head of the Courts Service has just left to become the Permanent Secretary, or acting Permanent Secretary, at the Education Department. Can the Minister tell us who is now in charge of the Courts Service at official level? Can she give us details of the current level of the backlog and the steps being taken by the Ministry of Justice to deal with it, and her estimate of when it will be dealt with?

To produce a White Paper like this at this time feels like a gimmick. The White Paper is a hotchpotch, with no unifying themes. Some of the strengthening of sentencing for some violent and sexual offenders is sensible. We welcome the pilots of problem-solving courts; their success already in Liverpool and other places makes me think that the MoJ could go quicker and further on them. Tougher community sentences and greater use of tagging is welcomed as well, and we also welcome the reduction in criminal conviction disclosure periods for those seeking employment.

What this White Paper does not do is signal a fundamental shift in sentencing. It looks like the worst sort of politicking. The fundamental shift should be being consistently tough on sexual and violent crimes and remorselessly focused on reducing reoffending. It should recognise that one-third of those being considered for community sentencing have mental health problems, and the White Paper should begin to address that. To have a proper plan that represents a fundamental shift, there needs to be a properly resourced plan for a properly staffed Prison Service that is able to deal with demand; a properly resourced probation service; and effective and, where appropriate, intense community penalties.

When does the Minister expect the legislation referred to in the White Paper to be produced? What additional resources does the Minister expect to be put into the system to fund this “fundamental shift”? When will the problem-solving courts be rolled out? How many offenders are affected by reducing the two-thirds release date for those sentenced from seven years down to four years? How many more prison places will be required to accommodate the increase in the life tariffs from one-half to two-thirds of the equivalent determinate sentence, and when will those prison places be available?

The Statement rightly claims that the first duty of any Government is to protect their people. There are two competing views as to how people should be protected. There are those who believe that warehousing offenders for as long as possible is a sure way of protecting the public, at the price of destroying the span of their lives on this planet. The alternative view is that the time and space given by incarceration in prison should be constructively used to reform and rehabilitate the prisoner, not just for his own sake but for the protection of the public in the long term.

The alternative approach is recognised in the White Paper in its call to empower the sentencing system with more effective community sentencing. It recognises the evil of drugs and unemployment regarding the individual and undertakes that individual needs will be identified and met. These reforms, it says, will not work unless they are underpinned by a “world-class” probation system. I entirely agree.

Much depends on the quality of probation officers. I recall from my early days in the law—as did the noble and learned Lord, Lord Woolf, in the debate on the Question a moment ago—that many experienced and mature probation officers did much to improve the life chances of young people. I welcome the reference in the White Paper to a closer relationship between probation and the courts. That is how it used to be. In more recent years, the probation service has not seemed to be in the offender’s corner, to the point where it was risky for defence counsel to ask for a report because it would very likely be negative. The need for diversity in recruitment was not raised today in the earlier Question, but it is important to recall that an investigation in January of this year found that 70% of probation officers were female and white and did not meet the need for people of maturity, of different colour and of greater experience who can deal with the problems placed before them.

This paper, however, emphasises longer sentencing. Like Bad Boris in the “Dead Ringers” radio comedy, the desire to warehouse people creeps through. Here is where the strategy breaks down. I have spoken on other occasions of Berwyn Prison in Wrexham, near my home, which is the newest and largest prison in the United Kingdom and the second largest in Europe. Coming into its fourth year, it is still 400 short of its full complement because it still cannot recruit the staff. It does not begin to fulfil the rehabilitative ambitions with which it was built, and it is a byword for drugs and assaults on staff and fellow prisoners, as a study by Dr Robert Jones of Cardiff University found in June of this year. If such a new prison struggles to succeed, longer sentencing is decidedly not the way forward. This mars the otherwise constructive approach of much of the White Paper.

The noble and learned Lord, Lord Falconer, has asked many questions, so I will not add to the Minister’s further burden with mine.

I thank both noble Lords for their comments and questions. The noble and learned Lord, Lord Falconer, is absolutely right that the first duty of any Government is to protect their people, but too often, at the moment, our system of sentencing in England and Wales does not command the confidence of the public. That is why we have put forward this White Paper on sentencing.

I am not going to comment on the Lord Chancellor’s views—I think that is above my pay grade—but I can tell the noble Lord that the person who is in charge of the courts system at the moment is a Mr Kevin Sadler. I hope that helps.

The noble and learned Lord brought up the problem-solving courts. I wondered whether this would come up, because it is true that we have trialled these aspects and other approaches similar to that in England and Wales in the past. However, the full gambit of the traditional problem-solving courts’ components successfully used in other jurisdictions to improve offender behaviour and reduce the use of custody and reoffending has never been fully established in this country. There are some elements that have been integrated into previous initiatives, and evaluations were either limited in their scope or did not take place. We therefore want to pilot a full model of PSCs across various cohorts, to properly test whether they work or not in our jurisdiction. That is what the White Paper explains. It is important to know that these courts are not soft options, and they fit very well into the White Paper, which says that serious crime needs to be dealt with and that we need to know what sentences are going to be given and how long people are going to stay in prison, because that gives confidence in the system.

We also understand that we have a reoffending rate that needs to be dealt with and that, in order to do that, we need to get to people early on in their offending career—if you would like to put it like that—and to work out individually what are their issues. Is it drugs? Is it alcohol? Is it mental health? We need to know, and we need the courts to be able to provide a programme, maybe through the probation service, that will help these people early on and stop them reoffending. That is an important part of this White Paper.

To finish on the PSCs, we are not rolling them out until the courts have dealt with the backlog. It is absolutely right that there is a bit of a backlog: that was bound to happen because of Covid-19 and the ways in which we have had to change the way the courts system works.

On the resourcing issues that have been brought up, the Government has given a £155 million increase in funding this year for probation. Through the White Paper they are looking at £2.5 billion to spend on prison reforms that will also help. The noble and learned Lord, Lord Falconer, asked about prison places. It is thought, in the White Paper, we will need another 600 prison places, but there are also designs for another 10,000 places because of the extra police numbers, et cetera, and court activity. That is already in train and the money is there. I think that that was all there was from the noble and learned Lord, Lord Falconer.

Responding to the noble Lord, Lord Thomas of Gresford: once again, yes, it is about protecting people, but it also about people understanding the system and having confidence in the system. I have talked a bit about drugs, alcohol and mental health issues. In order to stop reoffending, or to stop young people in particular getting into crime in the first place, we need really good and strong systems for dealing with these issues.

I thought I had mentioned BAME and diversity of recruitment in the probation service. We want, and will have, a probation service that is world class. We will have 1,000 more probation officers who are of good quality, as we deliver the programme between now and July next year. As I think I said in an answer earlier this afternoon, we are looking at diversity when recruiting those 1,000 officers. It is going well and we are over target, particularly on recruits from the BAME community, and particularly in London.

We are looking at longer sentences, but also at something that the public have been asking for for a long time, which is to understand sentencing and, particularly, to understand why people come out earlier than they should. It is crucial, when you have sentences for serious offenders, that they spend more of their sentence behind bars. That should truly reflect the severity of their crimes, so that the public, and victims particularly, have confidence in the justice that has been served. That is why we have announced abolishing automatic halfway release for certain serious sexual and violent offenders, requiring them instead to serve two-thirds of their sentence in prison. We will also make whole-life orders the starting point for the murder of a child, which we think is important, as well as allowing judges to hand out the maximum punishment to 18 to 20 year-olds in very exceptional cases.

I will look at Hansard and make sure that, if I have not answered questions from either the noble Lord or the noble and learned Lord, I will do so in writing and put a copy in the Library.

My Lords, we now come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief, so that I can call the maximum number of speakers. I first call the noble and learned Lord, Lord Woolf. Do we have the noble Lord? I do not think we do. I next call the noble Lord, Lord Davies of Gower, who is not in the Chamber. Do we have him on Zoom? No, we do not seem to have the noble Lord. So I now call the noble Baroness, Lady Blackstone, who is with us—good.

My Lords, I welcome the White Paper’s proposal to stop sending lower-level offenders back and forth to prison, and to develop more effective, non-custodial sentences. This is something that has been called for over for many years, but the call has gone unheeded. I ask the Minister why, in contrast, so little is being done to improve the regime inside prisons where, for example, a lack of good-quality education and training, and effective work programmes, means that rehabilitation is compromised, and over- crowding, self-harm and violence are increasing. Would she agree that ever-longer sentences and ever-worse conditions can lead only to very poor outcomes?

Yes, prisons need investment. That is why we are putting in £2.5 billion to be spent on prisons, not just for additional places but for upgrading prisons that need upgrading. It is important that young people in particular get individual services to ensure that they do not keep reoffending and get the services they need in the community to help them come out of crime.

My Lords, I welcome the Government’s expressed intent in this White Paper of reducing and tackling reoffending, but it is against the delivery of that intention that they will be judged. I note the issue of handovers, which suggests to me that an offender will be passed from one person to the next rather than having a seamless route through training and support. Nowhere in the chapter on reducing reoffending, other than in the title of the government department, is there a mention of engagement with local government. It has a key role here: housing, community and social care responsibilities. The words “local government” do not appear in this chapter. Is that a deliberate omission, an oversight or a mistake?

My Lords, as someone who has spent 25 years in local government, I am sure it is understood that local government is important in delivering. As the noble Lord said, it is about housing and drug and alcohol support. It can even be about education, particularly basic skills that some of these young offenders—or older offenders—often do not have. I quite agree with him and will take that back.

My Lords, I welcome the albeit very tentative steps to improve the youth justice system, but will the Minister let us into a secret that remains unopened by the White Paper? What is the empirical criminological evidence base for the Government’s apparent belief that lengthening sentences in ever more dangerous and unruly prisons will either reduce crime or increase prisoners’ prospects of an orderly life on release?

My Lords, that is exactly why the Government are looking to invest in our prisons, but we have to ensure that the public understand and have confidence in the system. They are asking that we have dangerous prisoners in custody for longer, but the noble Lord is absolutely right that we then have to invest in our prisons.

My Lords, I think we all accept that effective community sentencing and a proper probation service are urgent and necessary. However, I am concerned that these can be an excuse for not investing in the prisons we need—both new prisons and the repair of some deplorable examples, which my noble friend the Minister touched on. There has not been adequate emphasis on such investment since I had the pleasure of working with the noble Lord, Lord Howard of Lympne, in the 1990s. I welcome today’s sentencing reform, but investment in prisons is very slow. Will the Government accelerate and enhance their plans for investment announced now over a year ago?

I thank my noble friend for her question. As I said, we are creating 10,000 additional prison places, on top of those being delivered by Wellingborough and Glen Parva. These new prisons have been designed to be safe, decent and secure and to support effective rehabilitation. We have committed an additional £156 million this year to address some of the most immediate maintenance and renewal issues across the prison estate. We are also grateful to our FM providers and all those other contractors that have helped us operate prisons safely in the very challenging environment of Covid-19. Most recently, we announced that £140 million will be spent installing temporary prison cells, repairing and refurbishing prisons, approved premises and young offender institutions and improving IT in the Prison Service.

My Lords, while agreeing with my noble and learned friend Lord Falconer, I would have welcomed many of the proposals in the White Paper when I was a magistrate—but I was depressed to see that in paragraph 394 in the annexe on race disparity, a most important element of justice, the term “White” is contrasted with “BAME”. Does the Minister agree with me that there are white minority-ethnic groups, notably Gypsies, Travellers and Roma, as well as people from the Balkan countries? Secondly, why has the Youth Justice Board not fulfilled the undertaking made to me several years ago by the noble Lord, Lord McNally, to separately categorise Gypsies, Travellers and Roma, so that we can finally make a start to better understand the context of their situation in the criminal justice system?

I apologise to the noble Baroness, but I could not hear the majority of what she said, and I do not think the rest of the Front Bench could either. I wonder whether we could take it offline and I will write to her.

My Lords, while many aspects of the White Paper may be welcome, the fact is that the criminal justice system is creaking at the seams. What the Minister described as a bit of a backlog as of 31 March was in fact 326,000 outstanding cases at magistrates’ courts, an 11% increase over the previous year, and more than 40,000 cases at the Crown Court, a 21% increase. Unlike what the Minister said, most of this backlog occurred before the Covid lockdown, which was not until 23 March. As a recent study by Her Majesty’s Crown Prosecution Service Inspectorate said, the criminal justice system is “close to breaking point”. What are the Government going to do to avert a crisis in the criminal justice system?

I am afraid I do not agree with the noble Lord totally. A lot of people do not accept how much Covid-19 has affected services such as the courts service. That does not mean the Government need to be complacent. They are working as to how they move through the backlog, and I know the work we are doing with the National Probation Service and this sentencing White Paper will help us do that.

My Lords, I could not understand more the outrage of a family who have lost a loved one through crime and see the culprit serve only six years of a sentence, for example. However, as someone who has worked in rehabilitation through the arts in prison, I am nervous of not finding that the balance between retribution, rehabilitation and redemption is kept. Does the Minister agree that lack of hope can lead to despair, unrest in prison and even suicide?

First, the noble Lord is absolutely right that for a family who have lost a loved one to violent crime, it is a terrible thing—but, yes, we need to make sure offenders are looked after properly, and that is why we are investing in the Prison Service. We need to ensure that what we do there, or within the community for more minor offences, is rehabilitation.

My Lords, as a former sentencer, I welcome the Lord Chancellor’s attempts to break the revolving door between offending and resentencing. Do the Government propose to amend his statutory duty to safeguard the rule of law? Will the Government seek the advice of our esteemed remaining law officers about how to make other exceptions to lawbreaking in a very “limited and special” way—to quote the Northern Ireland Secretary?

I thank the noble and learned Lord for his comments. I think I have answered this. It is out of my level of government involvement and the scope of the White Paper.

My Lords, there are many good initiatives in this White Paper—problem-solving courts, identifying mental illness and brain damage as a factor in crime, and developing robust alternatives to breaches of community sentences, which normally end in custody at the moment. But they all depend on resources that have not hitherto been made available. Given that increasing the length of sentences not only has a direct effect but leads indirectly to the inflation of other sentences in comparison, the Prison Service will be at the front of the queue, desperately needing resources, and all these initiatives will be at the back, will they not?

I do not think they will, my Lords. Neurodivergent individuals—who I think the noble Lord was talking about—are very overrepresented in the criminal justice system and need more support. The White Paper understands that, will work effectively and, I hope, put more resources into it. The MoJ, working with the Department of Health and Social Care and the Department for Education, is leading a refresh across the whole of government, particularly on the autism strategy, which is relevant to a large part of this cohort. It is important that that improves data capture on autism and ensures enough training and awareness about these people among the justice family, particularly when looking at prisons and the probation service, so that, rather than not understand them, we can support these individuals better.

My Lords, this White Paper will force sexual and violent criminals to spend longer in prison, allow whole-life orders for under-21s and child killers, and stop the automatic release of inmates who may be dangerous. The White Paper and the Bill that follows should first determine why prisons are running out of space. There is a need to review the probation services, as they can help with the problem. It also must be recognised that there is a need to help the prisoners reform. Many have committed crimes because of mental health problems, or drugs and alcoholism. The problems of BAME communities have also been mentioned, and proper consultation with the communities and churches concerned is needed. Does the Minister agree that more thinking should be done before enacting the law?

I agree with the noble Lord that rehabilitation, both in prisons and in the community, is of utmost importance. That is why a great deal of the White Paper talks about how we will make those services far better. The BAME community is important and, as far as BAME offenders are concerned, it is important that we know everybody as an individual, and we know their issues and problems, whatever they are, with rehabilitation programmes designed particularly for that individual. We talked about probation officers from the BAME community and I am pleased by the number coming forward for the recruitment drive.

My Lords, in the last 10 years, we have had seven Justice Secretaries making similar pledges to protect the public and to cut reoffending. Instead, despite more laws increasing jail terms, we have seen crimes rise and prosecutions fall to a record low. As exposed in the recent report from the Public Accounts Committee, published only on 11 September, the scale of mismanagement of the prison estate, disregard for women in prisons and the failure of the disastrous probation reforms are staggering. Inevitably, five days later, we get ever longer sentences, what I fear will prove to be more delusional promises of future delivery, and some piecemeal positive proposals. When will we see what is needed and what the PAC has now recommended twice, which is a coherent cross-government strategy to reduce reoffending?

The issues that the noble Lord talks about are why we have this White Paper. We know there are things that need to be looked at. The White Paper is there for people to look at and debate, and legislation to address the issues it has brought up will come forward next year.

Sitting suspended.