Reflections on the Sentencing Bill, from our Director, Phil Bowen.
This week, the new Lord Chancellor, David Lammy MP, introduced a new Sentencing Bill in the House of Commons. The Bill sets out a series of measures designed to reshape how sentencing works in England and Wales, primarily to stave off future prison population crises. As he said, without this Bill, "our prisons could run of out places entirely, leaving us with nowhere to put dangerous offenders, police without the capacity to make arrests, courts unable to hold trials and a breakdown of law and order."
At first glance, the Bill appears to mark a significant step forward. It signals an acceptance that the political consensus toward ever tougher sentencing (a consensus that has been locked in for decades) is unsustainable, with rising demand colliding with limited capacity. However, as I argued in the Telegraph earlier this year, legislation alone will not insulate us from a future prison crisis. Delivery depends far less on the words written into law than on the resources, capacity and capability of our prisons and probation system.
Perhaps the most acute challenge lies with probation. Over the past decade, the service has been stretched to breaking point by underfunding, high workloads, and rapid turnover of staff. Community justice only works if probation can credibly supervise and support those subject to them. Yet in many parts of the country, probation officers are simply too thinly spread to provide consistent oversight. If the Bill is to succeed in delivering effective community supervision that retains public confidence, probation must be equipped with the people, skills and stability to deliver.
For example, one of the most high profile of the Bill’s provisions, a presumption against short sentences, aims to reduce demand on prison, as well as recognise that, for many, a short prison sentence is not the remedy to pull them out of a cycle of often repeat offending. But the evidence from the implementation of a similar approach north of the border should give pause Scotland’s experience has neither significantly reduced the use of short custodial terms nor altered the overall size of the prison population (indeed they have a capacity crisis of their own). Judges and sheriffs, faced with changing offence mixes and limited community resources, have often understandably had scepticism about the efficacy of community penalties. This suggests that cultural change, judicial confidence, and investment in community justice matters just as much as statutory presumptions.
In a roundtable with David Gauke, who led the Sentencing Review that this Bill seeks to turn into reality, I argued that we should not rely on legislation to do the heavy lifting. Part of the reason for that is that introducing sentencing legislation is an inherently political and public act, shaped by debates about being “tough” or “soft” on crime. The Bill’s provisions on “income reduction orders” or the publication of offenders’ names and photographs (neither of which feature in the Gauke review) reflect this reality. These measures are performative: designed to send signals to the public about punishment. While they may satisfy the political demand for toughness, they are likely to be yet more barely implementable law that will also do little to address the structural drivers of the prison population.
The new Sentencing Bill should be welcomed as a necessary attempt to shift sentencing and bring demand and capacity into better alignment. It looks to strengthen community sentences and to reduce the unsustainable pressures on our prison system, within a political context in which the room for manoeuvre seems narrow (though the research of our colleagues at the Common Ground Justice project suggest that there is actually a much wider public appetite for nuance and trade-offs).
But this Bill will not, on its own, prevent the justice system from running into a crisis again. That requires long-term investment in capacity, a credible probation service, and a justice system that is capable of delivery, not just legislation. The Bill is a start—but the harder, less visible work of building capability and confidence in our justice institutions still lies ahead.