Law Behind the Headlines
By John Cooper QC, Consultant Editor CL&J
The Justice Secretary announced last week a whole raft of new measures which not only radically shift the axis of sentencing policy from the previous administrations agenda of prison and more of it, to a more nuanced approach which deserves close analysis. The context in which these reforms are proposed cannot be ignored.
The Ministry of Justice (MoJ) needs to make significant reductions in its expenditure and the political reality is that the MoJ must take its slice. In this respect, it is utterly unrealistic to condemn every initiative which comes out of government which purports to make savings.
Equally, all reforms must be tested by the essential yardstick of ‘access to justice’. If any initiative threatens that fundamental right, then the initiative is flawed.
Let us then consider the new sentencing proposals with all this in mind.
It is trite to state that there are some crimes for which prison, and sometimes, a lengthy term of imprisonment is not inevitable. Nothing in Clarkes proposals gainsay this.
It is also right to say that sometimes, people will be released from prison and go on to commit further serious crime. This sadly has happened and will continue to happen, whether the perpetrator is released early or otherwise from their sentence. This fact of life should not be used to stifle the debate, now in play, about the effectiveness of imprisonment in some circumstances.
The new proposals, initiated by the Justice Secretary seek to reduce the number of people serving indeterminate sentences of imprisonment. Some of these terms have been imposed because of the prisoners past record rather than for the crime for which he was convicted, and as such, represent an extra element of retribution handed out by the criminal justice system. If retribution worked to reduce crime, there may be some justification for this, but it does not…and it is expensive.
Clarke also seeks to prevent the more vulnerable sections of Society being sent to prison, when other community based disposals may be more effective. On reducing the numbers of women sent to prison, the Justice Secretary is only following the learned views of Baroness Corston, in her Report on the issue some years ago. (http://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/corston-report/)
But not everything put forward by Clarke makes sense and some of it is downright worrying.
It must be wrong that the time that a discount on sentencing for a guilty plea begins is at the police station, as Clarke proposes. Most defendants, some of them very vulnerable, are presented with the evidence, or what there is of it, for the first time in custody and to be placed under artificial pressure to plead guilty at a police station before they have received mature advice is as unfair as it is undesirable.
Apart from being deprived of mature reflection and advice on the evidence, there is no way that a defendant in the early hours of the morning in a police cell will be able to consider if the evidence upon which he is being pressured to plead to is even admissible.
Here is the ‘access to justice’ point at its starkest, made even more acute if the MoJ are going to abolish police station representation, the result being that vulnerable people are being encouraged, even coerced by the promise of a reduced sentence, by pleading guilty at a police station at a time when they have no physical legal representation at hand. This should be resisted.
So, a mixed bag and much to be discussed. But let us not descend into ‘red top’ debate about prisoners rampaging the streets. The public deserve better than that.