As it stands, the Crime (Sentences) Bill in effect transfers the decision to imprison from the court to the legislature. The Bill mandates life sentences on persons convicted on a second occasion of specified sexual or violent offences, and, where there have been two previous convictions, insists upon a prison term of at least seven years for certain drug trafficking offences and of at least three years for domestic burglary.
The sentencing judge can only depart from these provisions in cases where "exceptional circumstances" exist. If enacted, these measures represent an alarming encroachment on judicial independence, and senior judges have been to the fore in defending existing constitutional arrangements. The principle here at stake is crucial, and there is also every reason to suppose that the mandatory sentencing approach, as is only too evident in the United States, would be continually extended to embrace other categories of offenders along with a regular ratcheting up of mandated prison lengths.
The radical nature of the Crime Bill is also shown by its reinforcement of the rejection of a cross-party consensus, which has existed for much of this century, that due regard be paid to legitimate constraints upon prison population growth. This reshaping of British criminal policy, which dates from 1992-93, is reflected in the 24 per cent increase in average prison numbers between 1992 and 1996. The pace of escalation continues to quicken. As of last Friday the total stood at just under 58,000 and is expected to exceed 60,000 some time next month, 62,000 by the autumn and a projected 66,000 at the turn of the century. These projections take no account of the Crime Bill, which the Home Office expects will result in a further 11,000 prisoners within 12 years of implementation.
All of this amounts to a rate of imprisonment which will put the UK disconcertingly out of step with our European neighbours. The question will have to be addressed as to what sort of society we are becoming as we double the proportion of citizens behind bars. The cost implications, which might once have served as a further constraint, are enormous. As Michael Howard reminded prison governors yesterday, since 1979 some 18,500 new prison places have been created. A further 8,600 are due to be added by March 2000 and a further six new prisons are committed beyond that date. The Prison Service, which secured an additional pounds 692m in the last Budget will, of course, require massively increased funding to keep pace with these numbers.
The erosion of restraints upon prison system growth is one measure of the extent to which criminal policy has become the victim of populist posturing by the two main political parties. After three or four bleak years there is at last some principled discussion of the issues at stake, notably by several senior Conservative members of both houses, Liberal Democrats and by both the Lord Chief Justice and the Master of the Rolls.
As with the Police Bill, the Labour Party appears to be shifting its ground. While Labour members of the Commons were instructed to sit on their hands, in the upper house today it is Labour which is tabling two of the key amendments. These seek to allow judges greater flexibility to depart from mandated minimum sentences if not to do so would be "unjust in all the circumstances". It remains uncertain whether Labour will support the amendment put down by the Conservative peer and former cabinet minister, Lord Carlisle, which allows departures from mandatory life sentences "if it would be in the interests of justice to impose another sentence".
The carrying of these amendments would mark a substantial but not fatal advance, and it is far from clear what the outcome might be of any discussions between Michael Howard and Jack Straw prior to the Bill returning to the Commons. While outright defeat of the Bill can be ruled out, it is still possible that a general election will intervene. Should the Bill fail, there is the chance that after an election calmer voices might prevail.New efforts might then be made to shape a criminal policy which is worthy of the traditions of this country.
Whatever the political complexion of the next government, one might then be able to envisage a memorandum from the Home Secretary to the Prime Minister mirroring that of Churchill to Asquith in September 1910. Churchill set forth a series of measures to achieve a 10-15 per cent decrease in the average daily prison population. In the event, by the early 1920s prison numbers were halved. Churchill's contribution is probably less to be found in the specific legislation and other steps taken than in his role in shaping what he called the mood and temper of the times.
Perhaps it is possible to end the century on the hopeful note with which it opened. As Churchill wrote in his memorandum, there is "a terrible and purposeless waste of public money and human character involved in all of this".
The writer is professor of law and criminal policy at Southampton University and is chairman of the Howard League for Penal Reform.