■ Gavin Dingwall, professor of criminal justice policy, De Montfort University; Jessica Gallagher, lecturer, criminal justice policy, De Montfort University
Long enough to cause damage and not long enough to heal … You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation. They … meet a lot of ‘interesting characters’ and then … [they’re] on the streets again.
The UK has the highest rates of incarceration in Western Europe and a prison population that has doubled in 25 years. As the then justice minister Rory Stewart outlined in January 2019 (above), short prison sentences appear to be of marginal benefit. Reconviction rates in England and Wales suggest that short custodial sentences are the worst possible sentencing option.
Adult offenders have a proven re-offending rate of 29.2 per cent. However, those sentenced to a custodial term of less than 12 months have a proven re-offending rate of 64.4 per cent. A proven re-offence is any offence committed within a year of release that leads to a conviction, caution, reprimand or warning.
On the basis of these figures, short prison sentences are staggeringly inefficient if the purpose of punishment is to reduce crime. Meaningful rehabilitation is unlikely if someone is in prison only for a few weeks. Any immediate gain in crime reduction is quickly offset on release if the factors identified by Stewart increase the risk of entrenched criminal behaviour.
No wonder the UK government plans to introduce a presumption against imprisoning offenders for less than six months. The aspiration is that those who would have received such a sentence will receive a community sentence instead. Stewart recognised that such a proposal would be likely to face opposition, not least from his own colleagues in the Conservative Party. But he was clear that it was a battle that he must win.
There is another inducement for the government: 40,919 offenders received a custodial sentence of less than six months in the year to September 2018; removing such a sizeable number of prisoners would ease overcrowding. This would allow staff to work more intensively with longer-term prisoners, and could help to reduce rates of violence, self-harm and suicide — assuming that there was no corresponding cut to the prison budget.
The Scottish system
Will the proposal work? It is worth reviewing the evidence from Scotland. The Criminal Justice and Licencing (Scotland) Act 2010 provides that a court must not pass a prison sentence of three months or less unless it deems that no other method of dealing with the offender is appropriate.
It is important to stress that — as with the English proposal – short prison sentences have not been abolished, rather there is a presumption against their use. The Scottish government’s Justice Vision and Priorities document announced that the presumption would be extended from three months to 12 months.
Surely the fact that the Scottish government plans to extend the presumption against short sentences suggests success? Not according to Scottish prison statistics. In 2011-12, the average daily prison population stood at 8,179. By 2017-18 it had dropped to 7,464.
However, the latest figure is consistent with a drop that pre-dated the introduction of the presumption against short sentences. Other factors – such as the number of offenders being sentenced – help account for these trends. Despite the presumption, 27 per cent of the 11,943 people who received a prison sentence in 2017-18 were jailed for up to three months.
Lessons to be learned
Why has the effect been, at best, marginal then? Research by the Scottish government in 2015 found that 56 per cent of sheriffs (legally qualified judges who deal with the majority of civil and criminal court cases in Scotland) agreed that the presumption had made little or no difference to their sentencing practice. In fact, 28 per cent of Sheriffs agreed that the presumption led them to give slightly longer sentences than they otherwise would have done in some cases — an obvious way to evade the policy.
Two lessons should be learned here. The first is that the presumption will not work if it is too easy for judges to circumvent. Departure from the norm should require a convincing justification. It should require more than a claim that no other sentence was appropriate.
The second is that it may be more effective to think of types of offence that normally should not result in imprisonment. Cyrus Tata, director of the Centre for Law, Crime and Justice at Strathclyde University, makes the point that sentence length is an imperfect proxy for the seriousness of an offence.
Focusing on the type of offence may be a more honest way of determining who should go to prison. For example, whether it is ever appropriate to imprison a thief. Theft is prevalent and is not a victimless offence. The question though is whether punishment is proportionate to the gravity of the offence. Apart from exceptional cases, we would argue that prison is a disproportionate punishment in cases of theft. England and Wales have a developed system of sentencing guidelines, unlike Scotland, so some of this exercise has already taken place.
We welcome the UK government’s recognition that prison can be harmful and counter-productive. Advocating a policy aimed at sending fewer offenders to prison carries political risk. Scottish experience though suggests that more is required. The onus must be placed on judges to provide detailed and compelling reasons as to why departure from the presumption is warranted in a particular case. Consideration should also be given as to whether there should be a rapid means of reviewing the judge’s reasoning.
Two things are clear. Reconviction rates in England and Wales show that short prison sentences are staggeringly ineffective. But equally, what has happened in Scotland demonstrates that a presumption against short sentences is not in itself going to provide a remedy in terms of reducing the prison population. In the longer term, we need to have a meaningful debate about what offences merit a custodial sentence.