The Government has made much of the need to rebalance criminal justice in favour of the victims of crime. Alongside rhetorical promises to end the liberal consensus on law and order, allowing evidence of previous misconduct and changes to the hearsay and double jeopardy rules have reduced the rights of defendants in the hope of increasing convictions.

Rather less media attention has been given to a rebalancing exercise of a different nature which aims to put the brakes on the sharp rise in the numbers sentenced to prison over the last twelve years. The review of the correctional services conducted by businessman Patrick Carter for the Prime Minister concluded that the rise in the numbers of those detained from 42000 in 1993 to 75000 today was neither sustainable nor desirable. This is also one of the findings of the four-year Rethinking Crime and Punishment (RCP) initiative set up by the Esmee Fairbairn Foundation to explore the role of prison and alternatives. The major lessons to emerge from the 60 research studies, awareness campaigns and practical projects funded by RCP relate to the need to use prison as a genuine last resort, develop a better approach to the mental ill health and drug addiction which contribute to so much crime and to increase public and community involvement in the work of the criminal justice system. RCP’ largest single project the independent inquiry into alternatives to prison chaired by retired Scottish judge Lord Coulsfield looked in particular at the need to restore trust and confidence in community penalties, the lack of which has fuelled pressure for increased severity in sentencing.

Reducing Imprisonment

Some of the elements of the government’s strategy for reducing the growth in imprisonment – a sentencing guidelines council (SGC) and a raft of new sentences including weekend prison and a new generic community sentence- were contained in the Criminal Justice Act 2003. Although these measures have yet to be fully implemented, the government have moved ahead to legislate for what they see as three complementary elements of this rebalancing strategy in the Management of Offenders and Sentencing Bill published earlier this year. First they will bring changes to the system of fines to help restore confidence in their use as a credible and effective punishment. Second there are broader sentencing changes including a requirement for the SGC to consider the question of resources when framing guidelines, and further extension of the use of electronic tagging. Third, the Bill creates a new organisational structure, the National Offender Management Service (NOMS) to provide seamless supervision of offenders in and out of prison. While the Bill is unlikely to become law in advance of the General Election, should Labour win, most commentators expect it will be a high priority in a new parliament.

Fines

The Bill raises substantially the maximum level of fines, which may be imposed in the Magistrates Court- from the current £5000 to £15000 for adults – and introduces a new day fine scheme designed to relate the amount of a fine to an offender’s disposable income. Recommended by both Carter’s review and Lord Coulsfield’s inquiry, day fines involve magistrates deciding, on the basis of the seriousness of the offence , how many income units an offender will have to pay - up to a maximum of 200. The value of the unit will be determined for each individual according to personal financial circumstances- up to a maximum of £75 per unit. While there is widespread but not universal support for the idea that better off offenders should pay more than poorer ones, the practical implementation of the scheme must draw lessons from the ill-fated Unit Fines introduced in 1992 and repealed a few months later. Day Fines have long operated successfully in many European countries, and it may be no coincidence that rates of imprisonment are a good deal lower than in Britain. Concern about collection and enforcement has led British courts to make less and less use of the fine in recent years, hoisting offenders higher up the sentencing tariff on to community penalties or even directly to jail. Fines were imposed in response to more than a third of indictable offences in 1992 but fewer than a quarter ten years later. This new approach should help to restore the market share of the fine among sentencing disposals. To succeed in reducing imprisonment it will have to do so without increasing the number of defaulters who will then become candidates for custody.

Sentencing

As for sentencing more broadly, it seems entirely sensible for the SGC to consider the impact which particular guidelines would make on the resources available to the criminal justice system. Tempting though it might be for politicians to press for a tougher and tougher approach on crime, any society can ultimately only operate a system of punishment it can afford. With an annual place in prison costing well over £30,000, there are strong arguments for a limiting the use of custody to the most serious, dangerous and prolific offenders and developing effective community based alternatives for others. The evidence is mixed on how far electronic monitoring helps that development. A recent study of the impact of “prison without bars” on teenage offenders found higher than expected reconviction rates.

On the general thrust of sentencing policy, the Conservative party has attacked the requirement on the SGC as an unnecessary constraint which somehow puts the cart of correctional services before the horse of justice. The Tories have promised a harsher law and order policy in which parliament would have the final say over the content of sentencing guidelines, home detention curfew – under which certain prisoners are eligible to be released up to four months before the normal date -would be abolished and a more transparent structure of sentencing introduced, with a more widespread use of mandatory minimum jail terms for certain crimes. Their proposals would involve an additional 20,000 prison places, which, given the research on the effectiveness of prison, do not sit well with their commitments to cut waste in public spending.

NOMS

The third strand to the government’s plans revolves around the controversial National Offender Management Service (NOMS), the organisational structure it is hoped will deliver both reductions in reoffending and help stem the rise in imprisonment . While no one disagrees with the need for a more integrated approach to the case management of offenders throughout their offending careers, there is considerable unease about aspects of a policy which would effectively mean the demise of the probation service, and the future organisation of prison and community based supervision at the level of ten regions of England and Wales. Lord Coulsfield’s inquiry considered it essential for community penalties to be delivered at a very local level and for both sentencers and local people to be much more involved in decisions about what actually happens to offenders. The Local Government Association in their recent report Going Straight argued that rather than going down the road of regional offender management, lessons should be learnt from the partly successful reforms to youth justice based around locally led Youth Offending Teams. In Scotland, following a period of consultation, the Executive explicitly rejected the creation of a unified correctional service in favour of a partnership approach between prisons and local authorities.

Internationally there is no clear association between rates of imprisonment and organisational structure although it is of some concern that rates have grown sharply in New Zealand since a NOMS style approach was introduced.

There is concern too about the notion of “contestability”, which aims to encourage a wide range of organisations from the private, public and voluntary sectors to bid to run services currently provided by prison and probation. Some fear that the threat or reality of a changing cast of service providers will clock up substantial transaction costs while doing little to enhance relationships with the courts, or improve morale among key workers.

When and if the Bill faces detailed parliamentary scrutiny, ministers can expect something of a grilling, especially on NOMS. While it is true that Patrick Carter proposed the principles of much greater joint working between prison and probation and a purchaser provider split, the practical planning undertaken thus far in the Home Office has not been especially smooth. While some of the hostility comes from expected sources such as trade unions and the political opposition, genuine questions remain to be answered.

The final RCP publication contains the thoughts of 40 well known figures on how they would rethink crime and punishment. The most controversy was created by Judge Christopher Compston who said he would release 20,000 prisoners on parole within 6 months but it is another of his suggestions which is most relevant here: “We also need to stop politicians meddling so much and so often..” a thought echoed by Stephen Irwin , Chairman of the General Council of the Bar who would take politics out of policymaking and make policy based on evidence of what works.