Recent developments

Prison costs and prison numbers

Latest available figures for annual cost per prison place are  £44,006  overall cost per place and £40,378 overall cost per prisoner  (Ministry of Justice (2011) National Offender Management Service Annual Report  2009/10 Management Information Addendum.  London, Ministry of Justice, at p 68).

The prison population on 20th January 2012 was 87, 261  (83,130 Male prisoners and 4,131 female prisoners).

Public opinion

Data from the 2010/11 British Crime Survey found that  in terms of perception 60% of people  thought crime had risen in the country as a whole, compared to 66% in 2009/10 However the number who thought crime had risen in their local area was only 28% in 2010/11 compared to 55% in 1996. Crime maps giving information on crimes in local area have been available to the public since January 2011.  Public confidence in the criminal justice system also increased from 59% in 2009/10  to 61% in 2010/11.

See: Chaplin, R., Flatley, J. and Smith, K. (2011) Crime in England and Wales 2010/11 Findings from the British Crime Survey and police recorded crime, Home Office Statistical Bulletin 10/11. London, Home Office. 

New empirical research on judges and magistrates questions whether they are out of touch with what the public want:
P. Darbyshire, P.  (2011) Sitting in Judgment, The Working Lives of Judges. Oxford, Hart.

Government policy

The Coalition Government published its response to the Consultation on its Green Paper Breaking the Cycle in June 2011.  It reaffirmed the importance of prison as a place of work, the need for prison work to be self-financing and sustainable as far as possible and the need to make it easier for organisations to work with prisons in providing work. The Government intends to implement the Prisoners Earnings Act and generally to make greater use of financial payback by offenders with a duty on courts to make compensation orders.  It also intends to review sentencing for serious sex offenders and violent offenders including replacement of the IPP with a determinate sentencing framework. Rehabilitation by results will also be implemented. There will be greater use of restorative justice at all stages and new ways of punishing offenders will be developed, including the use of foreign travel orders. 
Ministry of Justice (2011a) Breaking the Cycle, Government Response, Cm 8070, London, Ministry of Justice.

Many of the proposals in Breaking the Cycle and the Government’s Response are now in the Legal Aid, Sentencing and Punishment of Offenders Bill introduced to Parliament in June 2011. 

The management of sex offenders

In R (on the application of F and Angus Aubrey Thompson) v Secretary of State for the Home Department  [2010] UKSC 17, the  Supreme Court  ruled  that the absence of a review of life long notification requirements for offenders sentenced to over  thirty months is disproportionate and breaches  Article 8.  The Court ruled that there must be an opportunity for the offender to show that indefinite notification is no longer necessary. In this case one of the appellants had committed the offence as a child. In response to this decision, the Government has drafted a Remedial Order setting out a review mechanism and is awaiting comments on this consultation. It has also undertaken a consultation on strengthening the notification requirements, for example with new provisions for those of no fixed abode.

The Child Sex Offender Disclosure Scheme which allows parents, guardians or carers to check with the police if a person with access to their children has convictions for child sex offences, was extended to all police forces in England and Wales in 2010-11.

1.2.3. Human Rights pp 8-10

For a discussion of the role of prisoners' rights in moving prisoners from a state of social death towards a recognition of their citizenship, see S. Easton (2008) 'Constructing citizenship: Making Room for Prisoners' Rights', Vol 30(2) Journal of Social Welfare and Family Law, pp 127-46.

1.3.1. Political imperatives pp10-12

The Government has reported on its proposals to extending the British Crime Survey research to include the under 16s:
www.homeoffice.gov.uk/rds/pdfs08/consult-bcsu16-response08.pdf

For the latest results of the British Crime Survey 2008/09 see:
www.homeoffice.gov.uk/rds/pdfs09/hosb1109vol1.pdf

1.3.2. The costs of punishment: economic influences pp 12-14

Roger Grimshaw and Helen Mills, with Arianna Silvestri and Felicia Silberhorn-Armantrading (2010) Magistrates' Courts and Crown Court expenditure, 1999-2009, Centre for Crime and Justice Studies, London.

The press release summarised the findings as follows:
Magistrates' courts' and Crown Court expenditure 1999-2009 highlights the following:

• Total expenditure rose to £1027.89 m in 2008/2009. In real terms the magistrates' courts figure rose by 17 per cent from 1998/1999 to 2003/2004 and by 31 per cent from 2005/2006 to 2008/2009. The Crown Court total increased by 10 per cent from 2005/2006 to 2008/2009.
• Capital expenditure increased very substantially from 2005/2006 to 2008/2009, with a rise of 271 per cent in the Crown Court figure.
• Employee expenditure for the magistrates' courts rose by 15 per cent from 1998/1999 to 2003/2004 but then declined by 8 per cent, whereas the Crown Court figure declined by 2 per cent from 2005/2006 to 2008/2009.
• Staff numbers have declined over the past three years by 12 per cent. The magistrates' courts have lost 1,088 staff, equivalent to 14 per cent of their staffing complement, and the Crown Court has lost 150 staff or 6 per cent.
• The volume of cases brought to the magistrates' courts has declined by 16 per cent since 1998. Meanwhile summary justice exercised by police and prosecutors in the form of cautions and `out-of-court' penalties has grown.
• Since 2005, cases brought to the Crown Court have increased by 17 per cent.

http://www.crimeandjustice.org.uk/prcourtsbriefing.html

1.3.3 The influence of public opinion on penal policy pp 14-17

A new report, Public opinion and sentencing for murder: An empirical investigation of public knowledge and attitudes in England and Wales by Barry Mitchell and Julian Roberts was published in October 2010.  The researchers found that public support for a mandatory sentence of life imprisonment for murder is more limited than had previously been supposed. However, the level of public support increased for more serious cases of murder. The respondents also underestimated the amount of time murderers spend in prison before being released on licence. The majority of respondents also believed that the murder rate had remained the same or had increased over the past ten years when it has actually begun to decline. The Report highlights the need to increase awareness of the public of sentencing to improve public confidence as well as the problems with a mandatory life sentence.

The report is available online at: http://www.nuffieldfoundation.org/

1.3.4 Policy effects: prison expansion pp 17-10

The prison population has continued to expand to over 85,000. On November 12th 2010 there were 85,274 prisoners (81,025 male prisoners and 4,249 female prisoners).  

Prison Population Projections
The latest prison population projections for 2016 suggest the highest figure will be 93,600 and the lowest 83,100 which is a slight decline from the 2009 projections: see Ministry of Justice (2010) Prison Population Projections 2010-2016, Ministry of Justice Statistics  Bulletin.

The Commission on English Prisons Today in its report has argued for a reduction in prison numbers, the closure of some prisons and greater use of community responses as well as more investment in communities: see
Commission on English Prisons Today (2009) Do Better Do Less: The Report of the Commission on English Prisons Today, London, Howard League.

New policy directions
Following the May 2010 General Election the new Justice Secretary Ken Clarke announced that he wishes to make greater use of community punishments with greater involvement from the voluntary and private sector.  He also said that he did not believe that prison expansion has led to a full in crime (Clarke, K., 13 July 2010, Speech for the Judges, Mansion House,   London, Ministry of Justice).

A new Green Paper on criminal justice matters including Sentencing and Rehabilitation is expected to be published this winter

1.5.6 Current policy criticisms pp 32-33

New policy directions

The Coalition Government’s Green Paper, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, was published by the Ministry of Justice in December 2010. The paper sets out the Government’s proposed reforms to the criminal justice system. Responses and comments are invited and the government will publish its response in May 2011.

The focus is on effective rehabilitation and the Paper refers to the introduction of new measures to achieve this, and the emphasis on the accountability of service providers so that that providers are paid by results. There will be a move away from centrally controlled services, in which the public sector predominates, towards a more competitive system that uses expertise from broader range of organizations from all sectors, namely, private, and voluntary and community organizations. The aim is to promote competition, increase cost effectiveness, and involve local people in these efforts to promote rehabilitation. The concern is to improve public safety, reduce re-offending and the financial burden of imprisonment by breaking the cycle of re-offending. The principles underpinning the Paper are public protection, punishing and rehabilitating offenders, transparency and accountability, and decentralization. The  Green Paper ‘is built on the principles of the Big Society: opening up public services to new and independent providers; increasing social action so that people give time, effort and money; and empowering citizens and communities to hold local agencies to account and share responsibility for making their neighbourhood safer.’ (para 293).

It is proposed that more attention will be given to taking offenders off drugs and receiving intensive treatment in the community, diverting the mentally ill from prisons, and applying lessons learnt from treating women offenders to other offenders. Work with female offenders has shown the importance of developing a network of community provision, using education and interventions for drug and alcohol abuse, through probation and voluntary sectors to deal with offenders with multiple needs. It is also intended to reshape services for offenders with severe forms of personality disorder. The use of MAPPAS will be continued.

The Paper includes specific measures relating to imprisonment, community punishment, sentencing and policing which are discussed below.

Prisons

Acknowledging the current limitations of prison where nearly 50% of adult offenders and 75% of those sentenced to youth custody re-offend within one a year and where the prison budget has increased substantially over the last decade, the Green Paper considers ways of making prison more effective. The Paper acknowledges that a large number of offenders have multiple problems including drug and alcohol problems, housing and employment problems, and few educational qualifications. There will be greater emphasis on work within prison and the aim will be for prisoners to work for a normal working week of up to 40 hours. The voluntary, private, and community sectors will be used to develop the ‘working prison’. At present only 9,000 adult prisoners work in public sector prisons so the plan is to expand the range of work available and to promote an ethos of work discipline among inmates.

Education in prison will be geared to developing skills to participate in work in prison and to improve job prospects on release. It is envisaged that the work could be provided either by the prison or external providers or in partnership with the private sector, and it is intended to make it easier for private, voluntary, and community sectors to become involved in this enterprise.

There will also be provision for prisoners to make financial reparation to victims and contribute to the cost of services to victims from their earnings.  The Prisoners’ Earning Act, enacted in 1996, which is not yet in force, will be implemented to facilitate reparation to victims. Under the Act deductions can be made from the wages of prisoners on enhanced wages. These funds will be used to contribute to victims services. This is intended to begin in September 2011. The Government will also consider further ways of making deductions from prisoners’ wages to make reparations to victims and communities.

Short sentences will still be used for persistent offenders and for those convicted of knife crime. The number of IPP prisoners will be reducing by reserving IPP sentences for the most serious offenders as originally envisaged and the test for release used by the Parole Board will be reformed. The release targets for current IPP prisoners will also be improved. The number of remand prisoners will be reduced by reforming the Bail Act so that there is no option for remand in custody for defendants who are unlikely to receive a custodial sentence.

When prisoners leave prison further support will be given to promote work rather than welfare. It is intended to give eligible offenders in the community the same entitlements as other jobseekers to support and training and opportunities and to participate in the new Work Programme. It is also intended to reform the Rehabilitation of Offenders Act, reducing the length of rehabilitation periods and broadening the scope of the Act to improve the resettlement of offenders.

In addition there will be greater emphasis on drug recovery using drug recovery wings in prison. There will also be more emphasis on diverting the mentally ill from custody. The Government also plans to cut the number of foreign national prisoners. The Government will consider whether foreign national prisoners could be removed initially instead of serving sentences in the UK and whether conditional cautions can be used to divert offenders on condition that they leave the UK, and a pilot study of this will be conducted. Prison transfer agreements will be used for EU prisoners to see if they can serve their sentence in  their country of origin.  Where this is not possible prisoners will be deported on completion of their sentence.

Non-custodial options

Outside prison Community Payback will be made more intensive and should immediately follow the imposition of sentence. Some community sentences are not properly completed and in future the emphasis will be on results rather than targets.  More discretion will be given to those who supervise offenders on community orders. Curfew orders will be made tougher and in some cases extended to 16 hours a day and up to one year. It is also intended to pilot a payment by results system for drug recovery in the community. How this will work will be elaborated in the forthcoming drug strategy to be published.

In addition there will be greater emphasis on use and enforcement of fines. The Government will also explore ways in which courts can seize personal property as a disposal in itself.  More use will be made of out of court disposals, using community justice.  Financial compensation to victims from offenders will be given greater weight. Sentencers will be encouraged to make greater use of compensation orders. Victims will be given more opportunities to give statements to the court so that victim statements are routinely used. A review of the support given to victims is already being undertaken. It is envisaged that more use will be made of restorative justice.

A new Crime Strategy will be published by the Government in February 2011, which will focus on local accountability for crime and policing and changes in the way anti-social behaviour is dealt with. Police and Crime Commissioners will be elected in 2010 with a responsibility to reduce crime and ensure effective policing. The police will be given a greater role in encouraging offenders to desist from crime. Local police forces and communities will be given freedom and shared responsibility in focusing on crimes which most concern local residents.

Rehabilitation by Results

Payment by results is intended to make providers of rehabilitation services accountable. Providers from all sectors will be given freedom to introduce innovative programmes to achieve results and will be paid according to the outcomes. Much greater use will be made of private, voluntary, and community sectors they will be given more discretion. Six new pilot payment by results projects will be commissioned and a competition strategy will be published in June 2011. How providers will be paid will be elaborated in due course. It is envisaged that one payment will be made for meeting statutory requirements and ensuring compliance with the sentence. Then a further payment will be made which depends on the result the provider delivers in reducing re-offending. The rewards may be given to probation service providers or to the prison, depending on the length of sentence.  In addition it is intended that independent providers will enter the market but they may also enter partnerships with public service providers, but at a local level. 

Integrated Offender Management will be developed using local agencies, including police, probation, prisons local authorities and voluntary partners to deal with the offenders who cause most harm in local communities. So this will be directed at prolific offenders causing most harm in local areas.  This also reflects the principle of de-centralisation so local areas will be responsible for identifying these offenders and developing ways of working with them. Local partners may work together to reduce re-offending and commission services required.

Providers of rehabilitation programmes will be given more freedom to introduce innovative programmes and more discretion. And will be paid by results. A ‘competition strategy’ for prison and probation services will be published in June 2011. It is not intended to apply the payment by results scheme to high risk offenders but the aim is to target persistent offenders as a small number of offenders are responsible for a large amount of crime. The issue of how to measure rehabilitation is subject to considerable argument but this is being explored and consideration is being given to the number of reconvictions for a given group of offenders. These changes will be accompanied by reform of NOMS and the way in which Probation trusts and prisons are managed, and by enhancing the scope for flexibility and professional discretion. It is also intended to strengthen links between prisons and local communities.

Youth Justice

More emphasis will be placed on diversion from offending, and also on reparation to victims, and increasing freedom and flexibility for local bodies. Greater use will be made of parenting orders and of restorative justice. It is intended to make out of court disposals simpler and to give police and prosecutors more discretion to deal with youth crime before leaving court and to give more emphasis on restorative justice. The Bail Act will be amended to remove the option for remand for young people who are unlikely to receive a custodial sentence. To address the problem of inconsistency in dealing with breaches of community orders, it is proposed that youth offending teams establish new compliance panels to review cases. The use of payment by results for youth justice to encourage or ‘incentivise’ local areas to reduce youth offending is also being considered.  Pilots will be set up to explore how local areas can share in financial savings and risks of custody. The Youth Justice Board will be abolished and its functions will be undertaken instead by the Ministry of Justice. It is also possible that young offenders convicted of less serious offences would be able to ‘wipe the slate clean’ on reaching adulthood to make it easier for them to find work and reintegrate.

Sentencing

The aim is to make the sentencing process more transparent and easier for the public to understand and for sentencers to use. Already data on sentencing at individual court level has been made available to the public. More information will be published on sentencing to improve public awareness and understanding.  Sentencing law will be simplified so just one sentencing framework applies to all offenders and constraints on sentencers’ discretion will be reduced. The process whereby sentencers explain the reason for a particular sentence will be simplified.  More discretion will be given to the courts in this process. The sentencing of hate crime will be simplified. The IPP sentence will be reserved for the most dangerous offenders, and restricted to those who would otherwise have a received a 10 year determinate sentence.  The discount for a guilty plea may be increased to 50%.

Comments

The Government’s recognition of the problems with the current system including the problems with the incarceration of mentally ill offenders and the excessive use of IPP sentences is to be welcomed as is the need to boost public confidence in community punishment.  The Paper also recognizes the multiple deprivation associated with much of offending and the limitations of prison in addressing these problems.  The proposed investment in drug and alcohol abuse and mental health services is also welcome. The Paper is likely to generate discussion on the role of prisons and the question of rehabilitation which is long overdue. However, precisely because of the wide range of factors which affect offending it is difficult to see why improving competition per se will provide a panacea for existing problems. Moreover while the aim of the reforms is to cut bureaucracy and centralised control by government, the concern is that regulation and administering the rehabilitation by results process will lead to further layers of regulation and control.

We await precise details of the prisons and probation strategy, but the shift away from existing professionals towards a broader range of providers will need to be carefully monitored given their expertise and experience.  There may also be issues of safety involved for less experienced groups and individuals entering the market.

The Secretary of State for Justice in introducing the Green Paper refers to a new ‘intelligent sentencing’ framework but is not clear yet how far the proposals will improve on the current framework. The Government is committed to retaining and using the findings of the new Sentencing Council so its role will be crucial in the future developments. The desire to give more discretion to sentencers may be problematic as discretion in the past has sometimes conflicted with the goal of consistency.

The plans for increasing work in prison may also be problematic. The importance of not undercutting labour outside the prison is acknowledged but if labour is priced at same level, given the additional costs of setting up and monitoring prison work it is difficult to see how it can compete or offer incentives to private companies to invest. In the United States where prison work is more developed there have been concerns over unfair competition as the federal body which employs prisoners sells goods and services to other government departments. There have also been concerns over the exploitation of labour and over whether this could be seen as a new form of penal servitude.

The key question is how far these measures will reduce the prison population. The Secretary of State for Justice has pledged to reduce the daily prison population by 3000 within four years and the measures in the Green Paper will assist this process but  many would still see 82,000 as too high.

Roger Grimshaw and Helen Mills, with Arianna Silvestri and Felicia Silberhorn-Armantrading (2010) Prison and probation expenditure, 1999-2009

This report showed that:

 “Spending on the prison and probation system in England and Wales has grown by 36 percent in real terms since 2004 despite a major reorganisation that was meant to save money, a new report from the Centre for Crime and Justice Studies has found. Prison and probation expenditure 1999 - 2009 found that spending on the National Offender Management Service (NOMS) - which combines the costs of operating the prison, probation and headquarters function - rose in real terms from £3.6 billion in 2004/05 to £4.9 billion in 2008/09.” http://www.crimeandjustice.org.uk/prisonandprobationspendingbriefing.html