Law: To imprison or not to imprison

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CAN THE prison population be allowed to grow indefinitely? Do community sentences work? If not, how can they be made credible alternatives to jail? These three questions dominated the deliberations of the Commons Home Affairs Committee, whose Report was released last week. The chairman, Chris Mullin MP, and his colleagues have produced a surprisingly tough- minded document. Their major concern is the exponential rise in the prison population. In the last five years there has been an increase of more than 50 per cent. There are 65,000 in prison now, with a forecast of a total of over 82,000 in seven years' time. At pounds 24,271 per place, this would produce an annual bill from the year 2005 of pounds 2bn. Faced with this, the members of the committee have produced a down-to-earth report, packed with common sense. It is a pity that one crucial question - which offenders should not be imprisoned at all? - is left unanswered.

Protection of the public, they say, must be one of the principal objectives of any sentencing policy. This is easily achieved for the term of a sentence of imprisonment, but do community sentences offer better long-term protection by weaning offenders away from their criminal lifestyles? The frustrating truth, which the committee openly acknowledges in answer, is that there is "an absence of rigorous assessment into the effectiveness of individual community sentences at present". Such sentencing will thus continue to be a matter of guesswork and optimism.

Probation officers are praised for their dedication, but there is a sharp reminder to them in the Report that they represent the public, not the criminal. The use of the word "client" by some to describe their charges is criticised.

The committee grasps the nettle when it comes to public perception of community sentences. The public and the criminal regard them as a let- off. So, strict enforcement is vital. Creation of a new offence of breach of a community sentence is recommended, carrying a prison sentence.

There is a welcome recommendation on the use of suspended sentences. The power of a judge to suspend a sentence was restricted by Parliament in 1991 to be used only in "exceptional circumstances". Conscientious application of the law by the courts resulted in many offenders being sent to prison who would previously have been given suspended sentences. The committee's recommendation to the Government to allow more frequent use of the power may help the court to do justice again in many an individual case, to the incidental advantage of the tax-paying public.

In most respects the report is sharply focused, but there are some vague passages: "We suggest that many people currently imprisoned could be dealt with more effectively by a non-custodial sentence". Who are these people, and what offences have they committed? A prison sentence is only imposed for an offence which is "so serious that only a custodial sentence is justified for it". The judge is required by law to give reasons (and judges take scrupulous care over this).

Perhaps the way forward is to encourage a greater openness in debating the way in which a non-custodial sentencing policy may develop. Almost everyone would agree that immediate custody is the only way of dealing with persons convicted of murder, rape, armed robbery and kidnapping. What then, of burglary? At present, the policy of the court is clear: an immediate custodial sentence is almost inevitable. Other examples of the current categories in which immediate imprisonment is imposed are suppliers of hard drugs, street muggers, child molesters and swindlers who prey on the elderly. At the moment it is left to the judges to do the best they can to reflect the view of society.

Patrick Curran QC is a barrister at 9-12 Bell Yard