Dominic Lawson: The progressive case for imprisonment

To withhold a jail sentence on grounds unrelated to the law is not justice but hotel management
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You can't please all of the judges all of the time. The Lord Chief Justice of England and Wales, Lord Phillips, has declared that too many people are being sent to prison, and that the system cannot cope. "We can not go on like this" he thunders.

Yet earlier this year, when Dr John Reid told judges that they should send only "the most dangerous" criminals to prison, because of the overcrowding of our jails, the then Home Secretary was immediately attacked by judges outraged at his suggestion. Judge Richard Bray of Northampton Crown Court was typical of these, declaring "I am well aware that there is overcrowding in the prison and detention centres; that is not going to stop me passing proper sentences in each case."

Lord Phillips and Judge Bray are both right. Our prisons are full to bursting point; but to refrain from giving a custodial sentence on grounds which have nothing to do with the law is not justice but hotel management. Actually, hotel owners would have been much more rational. If they had instituted policies which were going to increase the number of people dropping in, they would simultaneously have invested to increase the number of beds available, such as by building a large number of new hotels.

Over the past 10 years the Labour Government has introduced no fewer than 24 Criminal Justice measures, many of which have had the effect of increasing sentences – but has been strangely amazed by the extent to which such measures have increased the prison population. What is especially bizarre is that it had decided to maintain the approach to dealing with crime pioneered by Mr Michael Howard – "Prison works" – while cutting back on the prison building programme which the Conservatives had planned.

Successive Labour Home Secretaries have complained privately that they have wanted to build more prisons, but that the then Chancellor Gordon Brown had refused to allocate the necessary funds. Indeed, Charles Clarke, when he was Home Secretary, told me that he had fought off a move by the Treasury which would have forced judges to consider "the financial cost of any likely sentence" before making their decision. Can you imagine what our judges would have made of that suggestion?

Yet Lord Phillips, in his speech last week, surprisingly seemed to endorse this dangerous notion that punishment should fit the fiscal purse rather than the crime. He warned that locking up a murderer for 30 years means investing £1m in his punishment. I fear that Lord Phillips is being slightly disingenuous here: in an earlier speech he indicated his disgust at such long sentences for even the most violent of crimes, arguing that in future such lengthy terms of imprisonment would be seen to be "as barbaric as the cat o'nine tails."

Well, barbarism comes in many forms. For example, there is the case of Damien Hanson, who had been sentenced to 12 years for attempted murder (with a machete), but released after six years by the Parole Board – they were most impressed by the anger management course he had attended. A few months after his release in 1994, during a carefully planned burglary, he repeatedly stabbed John Monckton and his wife Homeyra – in front of their little daughter. John died, and Homeyra survived – but with appalling injuries. Perhaps I am over-sensitive, because John was my wife's cousin, but I don't regard the 36-year sentence which was subsequently passed on Hanson as "barbaric" – and it was certainly less barbaric than the consequences of his early release, however much that might have appealed to Lord Phillips' refined sensibilities.

The Lord Chief Justice is also being disingenuous when he protests that sentencing ought to reflect the overcrowded nature of our prisons. It already does: the very first commandment in the Compendium of the Sentencing Guidelines Council – of which he is chairman – states that "in view of the dangerous overcrowding of prisons, where a sentence of imprisonment is necessary, it should be as short as possible, consistent with public protection." Indeed, it is for the same reason that all those who have sentences of four years or less are automatically released after serving half their time, regardless of their conduct in prison.

One of the consequences of this is that a very large number of criminals now serve sentences of a year or less, which Lord Phillips and many others regard as a pointless and disruptive exercise. He and they may well be right – but are they seriously suggesting that nobody should be given a prison sentence of less than a year? Or two years? Let them tell us what they think should be the minimum term of incarceration. I hope it will not be too barbaric.

On the day after the Lord Chief Justice's speech I had the interesting experience of addressing a seminar entitled "Britain Behind Bars", held by the liberal think-tank CentreForum. I had the impression that I might have been the only person there who did not feel that a high prison population was the manifestation of a deeply reactionary policy. I suggested to "Britain Behind Bars" that there is another way of looking at it. The Government Survey of Personal Incomes shows that the bottom 50 per cent of earners contributes 10 per cent of all income tax, with the other 90 per cent coming from the highest-earning 50 per cent. By contrast, crime and its costs fall disproportionately – massively so – on the poorer areas of our towns and cities. Given the undeniable fact that when a criminal is in jail he cannot continue to attack his community, it is clear that an increase in prison spaces is the most dramatic way in which the better off in society can pay to make the lives of the least-well-off more bearable.

The thought of so many people in prison seems a bleak indictment of our society – but there is no such thing as an optimum level of incarceration. Our rate of imprisonment per 1,000 crimes is actually below the European average. Lord Phillips appears to argue that one of the sources of our greater criminality lies in the collapse of the family unit: he said that we should devote "more effort to tackling family breakdown". In this, he is absolutely right – but don't judges have enough to worry about, without becoming social workers in wigs?