Prison places

Listening to Today this morning on Radio 4, I heard Lord Woolf, the former Lord Chief Justice, suggest that the Sentencing Guidelines Council should be treated in a similar way to the Bank of England. Just as the Bank is tasked with ensuring that the inflation rate does not rise beyond a certain target ceiling set by government, so the SGC should be tasked with containing the prison population within a ceiling set by government. As with inflation, so how the SGC achieved its target would be a matter for those who manage it.

Whilst on the face of it this suggestion has a certain appeal, it seems to be endorsing the popular view in the media and among the public, that the prisons are full because judges and magistrates are too ready to send people there and for too long, rather than considering the possibility that the prisons are full because the Home Office has failed to provide sufficient capacity.

The accusation that we make too much use of custody is very frequently repeated these days, although most if not all of us can remember that only a couple of years ago we were said to be 'too soft' on offenders. The media, it seems, can indeed have its cake and eat it!

If you do not work within the criminal court system, you are probably unaware of just how hard an offender actually has to work in order to attract a custodial sentence. Let me enlighten you.

Broadly speaking, there are four bands of sentencing for magistrates' courts.
1. A fine or a discharge;
2. A community based penalty (probation, curfew, unpaid work, drug/alcohol treatment programme);
3. A custodial sentence of up to 6 months
4. Committal to the Crown Court for a longer custodial sentence.

The process of sentencing an individual starts at the lowest band, and reviewing the nature of the offence,we ask "Is a fine or a discharge (conditional or absolute) appropriate for an average offence of this type?" If the answer is "Yes", we look at any aggravating features to see whether they would raise the 'tariff'. If there are none, then a fine/discharge is the only sentence available to us.

However, if the aggravating features do make it too serious for a fine, or if the offence they have committed is in itself more serious, then we would ask "Is it serious enough for a community penalty?" If we conclude that that is the case, we must now place the offence in either the low, medium or high range of community penalty and sentence accordingly. Thus, a low level might warrant 60 hours of unpaid work, a medium 150 hours and a high 250 hours.

Next are those offences which (of themselves, or in the circumstances) appear to us to be "so serious that only custody is appropriate". Nobody can be sent to prison if we are not able to spell out in open court why we believe that this threshold has been crossed. Moreover, if our reasoning is faulty then the sentence will be overturned on appeal.

As if that were not sufficient to ensure that only those people deserving of custody are sent to prison, under the Criminal Justice Act 2003, having decided on custody, we must further ask ourselves "Can this sentence be suspended with requirements attached, or must custody be immediate?" And if we decide that immediate custody is needed we have to give reasons for our decision in open court, and if those reasons are faulty, the sentence will be suspended on appeal.

My experience over many years now, sitting with many different colleagues, is that magistrates do conscientiously apply this structured approach to sentencing and only send offenders to prison when no other sentence is appropriate.

Should we, then, be exhorted to send fewer people to custody at all costs? And if so, what should we do instead?