Boris’s sentencing bonanza part 2.1: “A smarter approach to sentencing”

This is the second part of Legal Andy’s series on the government’s latest sentencing proposals. You can find Part 1 here.

The document is 115 pages long (link below) but O lucky reader we’ve done a summary and for a bonus, a summary of the summary.  It’s a two part scheme.

  1. Longer Jail sentences
  2. Vague plan to fix the mess in the low level criminal justice system that ain’t gonna work as no government really gives a hoot about it.

But first a word from our sponsor. Banks on Sentence. This is the leading textbook on sentencing law. £138.99 for the current 2 volume edition bit more for the online version. Mr Banks will have a lot more scribbling to do coving all this, in fact he’s given up editing it himself and got a sidekick in to do all the donkeywork.

Older readers may remember the Criminal Justice Act 2003. That had two big points as well. Reducing jail sentences and guess what? A vague plan… that never came to pass. In 2003 the then government got out of the mess of overflowing prisons by lowering the first parole date for sentences of four years plus from two thirds to a half. Which was clever ‘cos saying “all Judges are to give crooks 25% off their time in stir” wouldn’t look as good. This is being reversed, mostly.  It will add 2000+ to the prison population but it’s not hard to see why it will have little vote winning impact as the publics’ scrutiny of the parole system is low. The complexity of the scheme means they can’t even shout out “we’re increasing jail terms for serious offenders by a third”. Already the media is running stories pointing out the holes, usually cops injured in car crashes where the culprit will only serve half their term while the cop faces a “lifetime of torment.” But they are curiously reticent when it’s the cops who are the unpunished perpetrators as with Henry Hicks. (link at end).

The second part stems from the fact that it is a universal truth that short prison sentences do nothing to reduce crime. In 2003 the plan was to have “custody plus, in which a short prison term would be followed by community service. This simply didn’t happen. Partially because of the cost involved, but mostly because there was no real political will to radically reform the system. Watch and gape with amazement as the same pattern of incompetence, lethargy and small mindedness unfolds before your eyes over the next few years. We will come to this in Part 2.2.

 This government has already been tampering with the parole system firstly for terrorism offences because of the London Bridge attacker being “out on licence” and then

All this is not new and like much of our penology comes secondhand from the United States. In the 1980’s The Reagan administration pushed “truth in sentencing” whereby prisoners would serve at least 83% of the notional prison term. The prison population rocketed but the US was able to afford this and make it pay by turning the prison population into a mass pool of slave labour. That is of course the long term danger. The US with six times the UK population has around 50,000 prisoners serving sentences with no chance of parole compared to the UK’s 60ish.

Rather than just change all sentences of four years or more to the two thirds system, which was the pre 2003 position. Only certain “serious violent and sexual” offences listed in schedule 15 of the CJA 2003 will be changed. Now just to be clear it’s not this simple but here’s our guide to the types of sentence with different release rules. So from the top after these “reforms” we will have.

SDS.  Standard Determinate Sentences.

Bog standard jail time. You are released after half the given sentence on a licence with conditions supervised by the probation service.If you break the conditions or your probation officer don’t like you then you can be recalled to prison to serve part or all of your remaining time. Sometimes you can get out earlier on a electronic tag if you are serving less than 4 years.

But wait there’s a new power! If you’ve got a SDS but the authorites decide you might be a terrorist threat (without being convicted of terrorism related stuff) then the Home Secretary can have the parole board decide if you should be released before the end of the nominate term. Oh and they can do the same to anyone who presents “a serious danger to the public”. Certainly not an easy threat to make to people converting to Islam while inside.

Serious Violent and Sexual Offences of Four Years or More.

 For these the first chance of parole is at two thirds of the nominal term. Otherwise as SDS above.

SOPC. Sentences for Offenders of Particular Concern.

 As the above but with an extra year on licence at the end of the given term. Previously these could be released at halfway. These are sentences for sexual offences, brought in by yet another “we must do something about such and such” law. In this case the Criminal Justice and Courts Act 2015 which inserted schedule 18A into the Criminal Justice Act 2003. These also apply to terrorist offences but are being largely replaced by the new ones below:

EDS. Extended Determinate Sentences.

These sort of replaced IPP (Indeterminate sentences for Public Protection). While IPP’s were totally indeterminate, around 2000 people are still serving them despite their being abolished in 2012, and you remained on licence potentially forever, these have limits.

If the Judge thinks you are still going to be dangerous at the end of your sentence but not so dangerous that you need a life sentence and have committed a crime with a maximum of a life sentence and are included in the schedule of offences which you can get an EDS for, then your sentence has an extra licence period of 5 years for violent offences and 8 years for sexual offences. You can be recalled to jail at any point and stay there until the end of the extended licence period at the discretion of the parole board.

STS. Serious Terrorism Sentences (& Trivial Terrorism Offences)

The Terrorist Offenders (Restriction of Early Release) Act came in Feburary. All terrorism offences (yep there’s a schedule of ‘em) now require the parole board to determine if you are still dangerous at the two thirds point and only release you on licence if you are considered safe. This applies to people who got a SDS and were told they only had to serve half. But that’s not enough.

The Counter-Terrorism and Sentencing Bill will bring in new “Serious Terrorism Offences”. This will be a minimum of 14 years to be served in full with a supervision period of between 7 and 25 years afterwards. Terrorists that don’t qualify for this but get an EDS will have to serve the whole term plus an extended licence period of up to 10 years. There’s still provision for “terrorists” to get SOPC or even SDS if they “most minor”.  Simples!

Discretionary life sentences.  Altering the tariff calculation.

There are a number of crimes that have a maximum sentence of life imprison but usually only for the worst examples and where the perpetrator is considered particularly dangerous. These include offences such as kidnapping, rape, torture, setting off a nuclear explosion (yes really- link below) or causing a public nuisance. All life sentences have a “tariff” attached, which is the minimum time you must spend in jail before you can be considered for parole.

The change here increases from half to two thirds the starting point of a tariff for life sentences expressed as a proportion of the standard determinate sentence.  This closes a “loophole in the law” created by the increase to serving two thirds of the nominative sentence. Perhaps it’s best explained as an example. Say you robbed loads of banks and the judge thought you deserved a 30 year sentence. If you were sentenced before April this year the judge could either give a SDS of 30 years or a life sentence with a 15 year tariff. The life option is for cases where the judge thinks you will still be dangerous at the normal release point. To get out you would have to convince the parole board you’re not dangerous. Either way you would be eligible for parole after 15 years.  At the moment if the judge gave you a life sentence you would be eligible for parole after 15 years as before. But if the Judge didn’t think you needed a life sentence and simply gave you 30 years you wouldn’t be eligible for release until you served 20 years.

Mandatory Life Sentences.

Apply only for Murder. The changes here are to schedule 21 CJA 2003 which sets categories for the starting point in determining the tariff for life sentences for Murder. The changes mean under twenty one year olds (at the time of the offence) can be sentenced to a whole life Tariff and that all child murderers will get whole life tariffs unless there are exceptional circumstances. At the moment only child murders involving kidnapping, sexual or sadistic motive attract a whole life tariff.

Now child murderers aren’t popular and even less are terrorists who murder children. But the sentences already available are quite severe. Hashem Abedi, brother of the Manchester arena bombing has a 55 year tariff not a whole life one because he was under 21 at the time. No one can tell what the situation will be in 55 years time, and there are precedents of “terrorists” being released when political conditions change as with the Good Friday Agreement. So this is simply posturing by the government. Good grief we may even have a humane justice system by 2075.

 However there is one unpleasant aspect in that many child killers are their parents or carers whose culpability is low while the culture of vilification can lead to grave miscarriages of justice. See the Sally Clark case, link below.

Death Sentence. Not reintroduced!. Thank atheism for small mercies. (N.B abolished 1998 in case you’re in a pub quiz).

So that’s the Jail plan. Pretending they’re fixing a system has gone soft like 1960’s Batman where Warden Crighton releases the Joker and Catwoman after only two episodes in pokey to try to take over Gotham City again. But in truth it’s just locking people up for longer with no aim of rehabilitating the prisoners or making the public safer. Just a pathetic attempt to pander votes from people indoctrinated by the right wing press’s endless trope that prisoners have it soft, judges are softer and “crime” has nothing to do with social injustice.

Here’s the current proposals and the tariffs for murder plus the cases
mentioned and the law on letting off atomic bombs.
https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing
https://www.cps.gov.uk/legal-guidance/sentencing-mandatory-life-sentences-murder-cases
https://www.islingtongazette.co.uk/news/police-apology-to-henry-hicks-family-1-6499624
https://en.wikipedia.org/wiki/Sally_Clark
https://www.legislation.gov.uk/ukpga/1998/7/section/1/enacted

Andy from ACAB

Image Credit: Wikicommons/Public domain