The Bar Debates - “Bang ‘em up Britain: are we taking a rational approach to sentencing?”

The inaugural Bar Debate took place on 7 April 2011 in Court 1 of the Old Bailey. Counsel’s David Wurtzel was there
 

The debating chamber

Court 1 of the Old Bailey has seen its share of sentencing in its time.  This has included the need for the judge to don the black cap, which at least one panellist on 7 April looked forward to seeing again.  It was thus a suitable if well behaved venue for the first Bar Debate:  “Bang ‘em up Britain:  are we taking a rational approach to sentencing?” 


It was moderated by Peter Lodder, QC, Chairman of the Bar, who shares the vision of last year’s chairman, Nick Green, QC, that the Bar is a natural forum in which matters of national importance can be discussed from our particular vantage point of expertise.

 

The panel members

As a former Governor of Brixton Prison, Paul McDowell, now Chief Executive of Nacro knew first hand that “prison doesn’t work”.  Nicola Padfield, senior lecturer in the school of Criminology at Cambridge University but hotfoot from sitting as a Recorder earlier that day, was the most up to date in terms of empirical evidence.  The veteran journalist Peter Hitchens, now writing for the Mail on Sunday, enlivened things with passionately held views which may not have been shared with all of those present. Lord Justice Hughes, deputy chairman of the Sentencing Council, apologised for being “a prisoner of the system”, unable to express his personal views in public not least since part of his day job is to decide whether defendants’ sentences go up or down. 

 

The audience

The invited audience consisted of academics, the media and many others involved in the criminal justice system: it spread along counsel’s benches, the jury box and the public gallery.  No one sat in the dock though one might say that our system of sentencing was on trial.

 

Opening remarks

The debate opened with each member of the panel being given ten minutes to make their opening remarks:

Paul McDowell explained that he had spent 20 years in the criminal justice system during which time the prison population doubled.  During his time at Brixton, he saw “misery and hopelessness”’. Both offenders and staff were let down by a lack of resources and a negative approach to rehabilitation.

He admitted that prisons were very good for punishment (he challenged anyone to spend a week sharing a cell with a stranger and eating your meals while perched on your bunk overlooking the shared toilet) and nowadays there was more and more punishment (“our obsession with punishment”).   We have not been “brave enough to recognise failure in our thinking”.  Instead there is a self-fulfilling cycle in which the media drives the public perception that there is a lot of crime out there, and that in turn drives the political decisions.  What we need to do is to invest in facilities so that prisoners can be rehabilitated; without that we are “letting down the people we are trying to protect”.

Nicola Padfield looked carefully at the title of the event.  Yes, we were a bang ‘em up Britain but there is nothing rational in our sentencing policies.  However is it possible ever be rational about sentencing?  Fair, yes, but “I don’t buy consistency at any cost”. 

She pointed out section 142 of the Criminal Justice Act 2003, which sets out the aims of sentencing but without prioritising them, is “an excuse to be inconsistent”.  Some statistics brought us down to earth.  The prison population is now 85,447, 1000 more than at the same time in 2010. Of these, 13,469 are serving life terms of imprisonment, of whom fewer than 250 were released on licence having already served their minimum sentence, in 2009-10.  We are in fact creating “back door” sentencing:  the number of people being recalled went up six times between 2000-1 and 2009-10, and we are now recalling more ‘lifers’ than we are releasing. 

So sentencing is not “a one off event”.  As for “front door sentencing”, the current law is too complex, and has too little regard to what is known about reducing offending.  The tension between the “threshold, the impact of previous convictions and the totality principle leads to inconsistency”.  Nicola was not optimistic about teaching everyone the three R’s:  release, resettlement and reintegration.

A different tone was struck by Peter Hitchens, who explained that he once spent two nights in a cell at Wormwood Scrubs and has witnessed two executions and conditions in Russia and in apartheid South Africa.  He attacked our “morality free management”. He agreed that locking people up has not achieved anything;  prisons are “disgusting, squalid, neglected and run by the inmates” due to the demoralised staff.  The tougher and more ruthless a man is, the less prison offers any terrors for him. 

Looking back, he has discovered that 100 years ago there were 103,000 reported crimes; there are now 5.3 million.  Looking at the sort of offences for which people served sentences in Edwardian times (a quarter served for 7 days for such things as bicycling without lights and sleeping rough)  he concluded that by our standards, no one would have been imprisoned 100 years ago but by Edwardian standards everyone would be in prison today.  He blamed the rot on the conscientious objectors of World War I who spent some time in prison and afterwards changed our whole philosophy: we have “a system for Bertrand Russell”.  Prison fails to deter because “it is difficult to get in”.  It is only after everything else has failed, and you have become a habitual offender, that a court will send you inside. 

Lord Justice Hughes gave us some parameters.  Where, in the balance, do you put a drug dealer vs. someone engaged in a meaningless fight outside a kebab house that leads to serious personal injury?   There has been a plethora of criminal justice legislation, generally “ill thought through and debated superficially”. 

“Deterrence isn’t about the people in prison; it is about those who aren’t”.  The current fashion is for “prevention of future risk”, trying to allay public concern and to increase confidence.   Certainly sentences are longer - 25% longer than 20 years ago - but we still seek the “elusive holy grail” of the one club golfer. “Criminal law ought to be anchored in public instincts.”

 

Questions from the floor

After the panel had made their opening remarks there were a number of questions from the floor, including:

“What is your idea of the perfect prison?” 

Paul McDowell wanted a set of buildings which allow the population safely to occupy “their time in full time work facilities, to get back into society” and to allow the prisons to manage change.

Peter Hitchens wanted shocking prisons which no one would ever want to go back to, with hard physical work; “harsh, deeply unpleasant”  but for short periods with one person per cell and no drugs.

Nicola Padfield wanted them to be small, local and in the communities, especially for women.  She did not think they worked as a general deterrent:  looking at the people in Court 1 she reckoned that they did not commit crimes because they had a moral sense that said it was wrong to do so.  Most prisoners didn’t think they would be caught.

Lord Justice Hughes wanted a prison that was both austere and “geared to encouraging people to change their ways”; something that did not lock them into a lifestyle that included crime.  In his perfect prison there would be no drugs and no mobile telephones.

“To what extent are we grappling with recidivism?”

Peter Hitchens reiterated that prisoners are already recidivists, and were not being punished until they were.  He wanted “street theatre to spread the word that if you do wrong, you will be punished”. 

Nicola Padfield recognised the limitations of the criminal justice process.  It was a blunt instrument.  It was hugely difficult to stop being a criminal, especially if you are also a drug addict.

Lord Justice Hughes thought that we were not doing enough “but I am not sure I can think of something else”.  Some people do respond to a sentence, first time out.

Paul MacDowell said that staff did not have enough facilities or time but he was not without hope that one can have a significant impact on a prisoner.

“Should there be more or less prison sentences?  If less, what do you say to the victims?”

Nicola Padfield wanted less and pointed out that victims think many different things; they want to live in a safer society and they want to make sure that the offender does not reoffend.

Lord Justice Hughes said that victim impact statements are essential - some are remarkable for their dignity and understanding, but you cannot hand over the decision to imprison or to exonerate a defendant to the victim.  There is too much focus on the defendant because he is there and the victim is not. 

Peter Hitchens was against longer sentences on the basis that if you cannot change a defendant by a short sentence, you won’t change him with a long one.  He foresaw the possibility that things would end in a panic, leading us to adopt a Chinese style system of an increasingly strong state.

Paul MacDowell saw the need to convince the victim that the answer is less crime.  Sentencing has to be perceived to be effective.

 

And finally…

Credit for the evening, which ended with a reception, is due to the Communications Team at the Bar Council, headed by Toby Craig. A second debate is anticipated for later this year.

Bar Debates sketches by Priscilla Coleman

David Wurzel is Counsel’s Consultant Editor

 

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