Sunday, December 10, 2006

A Straw in the Wind

At the recent Magistrates' Association conference the Lord Chief Justice made a speech that gave some interesting pointers to the way in which government, and the Treasury in particular, are trying to influence the approach taken by sentencers. This passage seems particularly significant:-
While I am on the topic of sentencing there are one or two other matters that I would like to raise. The first relates to the use of the Suspended Sentence Order. The power to make these was conferred by the 2003 Act in respect of offences committed after 4 April 2005. Their attraction is that they can be combined with a variety of community requirements aimed at rehabilitation over a supervision period of up to 2 years.
They are now being made at the rate of about 3000 a month.

Three quarters of these sentences have been imposed by Magistrates and half of these in respect of summary offences. Now it is only proper to impose a suspended sentence if the offence justifies a sentence of immediate imprisonment. So, if the suspended sentence is being properly used, one would expect to see a commensurate drop in the sentences of immediate imprisonment. There has not been such a drop. This leads me to the suspicion that some sentencers are imposing a suspended sentence where the appropriate sentence would be a simple community sentence, in order to give the offender a powerful incentive to comply with the community requirements. This is improper sentencing and can bring the consequence of activation of the suspended sentence resulting in a period of imprisonment that is disproportionate to the original offence. Over 800 breaches have been received into custody this year, increasing the pressure on the prison population. So please resist the temptation to slap on a suspended sentence where there is a viable alternative to a custodial sentence.

The way I read that is that the powers that be have become alarmed by the enthusiasm with which sentencers have taken up the new Suspended Sentence Orders brought in as part of the monster 2003 Act. Most of us find it really useful to be able to impose a suspended sentence that incorporates requirements such as unpaid work or drug treatment, with the threat that any breach will result in the sentence being implemented - and there's the rub. Years ago we were more or less precluded from imposing suspended sentences because so many were being breached and the prison population was, at the time, heading up towards 50,000. Breach occurred when the subject of the order reoffended. Nowadays there are two ways to breach the order:- reoffend, or fail to carry out the requirements, giving double the opportunity to get yourself locked up. Worse, from the Treasury's point of view, the requirements use Probation resources, and that costs money.
Finally, with the ongoing panic about supervision of paroled prisoners front-line probation staff are going to be diverted into parole work, leaving the courts short of resources to use community sentences. So what's the answer? It's elsewhere in His Lordship's speech: Fines. Fines yield rather than cost money - the Treasury is very much in favour, as you might expect.
I can see the attraction to the Treasury, and I can see that with Probation in some areas near to collapse fines look attractive. Unfortunately most offenders do not work, and many do not receive benefit because they are too chaotic and useless even to claim the dole properly - so what are we supposed to do?
This magistrate, and many with whom I have discussed the situation will carry on sentencing within the guidelines and according to our assessment of seriousness. If the Government has managed to screw up the Prison and Probation Services, then they will have to sort them out, or to change the law to restrict sentencing - watch out for the tabloids then.
My personal prediction is that we will lose access to Suspended Sentence Orders before the end of 2007. You read it here first.

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