Legal Opinion: The Government must build a consensus on prison policy

Ministers have allowed headlines and political posturing to dictate penal policy. Now the time has come for the Government to step back from introducing more sentencing legislation, says Robert Verkaik, Law Editor
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With the crisis of the rising prison population showing no sign of abating, it may seem that the Government has little choice but to build itself out of trouble. And the prospect of more prisons is now firmly on the political horizon. But unless we want to end up with a penal policy of exponential growth, tackling offending by finding more and more cells can only be part of the solution.

There must also be just as much determination to ensure the judges are willing to use prison as a last resort.

Ministers are sensitive about telling judges what to do. But one important outside influence is the work of the Sentencing Guidelines Council (SGC), chaired by the Lord Chief Justice, Lord Phillips of Worth Matravers, a keen advocate of alternatives to custody.

Yesterday the SGC published its latest advice to judges, offering a much more flexible range of sentences for theft and shoplifting. And like so many of the other carefully considered papers written by the SGC it was immediate greeted by a barrage of negative headlines characterising it as yet more evidence of the courts going soft on prison.

"Burglars addicted to drugs will not go to jail," screamed the headline in the Daily Telegraph. "Go soft on shoplifters," said the Daily Mail. The headline in the Daily Express went further: "Crime: now we go even softer". Crooks who target the elderly could avoid prison and get away with just a community order, the paper reported.

The SGC is no stranger to such a media reaction and had gone out of its way to present a much more measured tone, telling judges that they should use jail when the crime fitted. In fact it is hard to recognise the story from the SGC press release published yesterday. Far from urging judges to go soft on criminals, the council began by reminding them that offenders who target elderly victims and steal from them on the street or in their homes should face custodial sentences.

It added that thefts from vulnerable victims attract a starting point of 18 weeks' custody. "Where the thief steals items worth more than £2,000 or the property is of high sentimental value to the victim, the council proposes that higher sentences may be appropriate," said the consultation paper. The council even suggested that targeting vulnerable community premises, such as schools, places of worship and doctors' surgeries, may result in a higher than usual degree of harm in terms of inconvenience caused and should be regarded as an aggravating factor.

Under another proposed guideline members of organised shoplifting gangs who intimidate their victims or use or threaten force should face jail sentences of up to four years. It was only later in the guidance that judges were told there maybe mitigating circumstances that permit them to impose non-prison sentences.

The Sentencing Advisory Panel, which advises the SGC, predicted that if the guidance was followed there would be more offenders given a fine or a discharge, and fewer given either a community order or a custodial sentence.

By the panel's estimation, about 60 per cent of offenders will receive the same type of sentence as they would hypothetically receive under the current arrangements, with about 20 per cent receiving a more lenient sentence and 20 per cent a more severe sentence than at present.

Since Labour came to power nearly 11 years ago, judges and magistrates have been bombarded by dozens of new criminal justice bills and scores of new criminal offences. The council's work in hacking through this jungle of new law has helped judges and magistrates free themselves from the shackles of rigid sentencing.

But if the government is really serious about getting more offenders out of prison, it should think about legislating a little less and funding non-custodial programmes a lot more.