Prison Sentences

Lord Keen of Elie Excerpts

Monday 29th June 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

Custody is always a last resort, but courts should have the option of imposing short custodial sentences where appropriate. Community sentences also have a part to play in our efforts to break the cycle of reoffending. Our plans for new sentencing legislation include more robust community sentences, which both punish and address offenders’ needs.

[Lord German (LD) [V]]

Bearing in mind that this Question is about reducing the number of short prison sentences—and bearing in mind the Minister’s review of the number and application of these sentences— does he accept the evidence, much of it from his own department, that for many offenders a short prison sentence will lead to a higher rate of reoffending? Remember that, just last year, the Justice Secretary told Parliament that a reduction of 32,000 reoffences could be achieved. What are the Government now going to do about this evidence? Are they going to inform the courts about what they could do?

[Lord Keen of Elie]

On the basis of figures from research in 2016, it is suggested that if offenders received a prison sentence of up to 12 months, they were something like four percentage points more likely to re-offend than if they had received a community sentence. However, noble Lords must bear in mind that those receiving a prison sentence of up to 12 months are very frequently those who have already received a community sentence and then re-offended.

[Lord Judd (Lab) [V]]

My Lords, this is a very important question. It is absolute economic nonsense to put so much concentration on short sentences when the money could be used much more constructively towards rehabilitation. The reconstituted probation service will have a key role to play, but do the Government accept that, apart from establishing that crime is crime and cannot be tolerated, the task overall is to rehabilitate? Many of these short sentences are dealing with people whose lives are in chaos. Without proper rehabilitation facilities, their lives become more chaotic; it does not help towards rehabilitation.

[Lord Keen of Elie]

Rehabilitation is of course an important aim, but it is not the sole aim in the context of criminal justice. At present there are no plans to end short-term prison sentences. Of course, short sentences do not help some offenders turn their backs on crime, but protecting the public has to be our priority.

[Baroness Hamwee (LD) [V]]

My Lords, is the Minister satisfied that the rehabilitation provided during a short sentence can be sufficient to enable an offender to learn to live a better life, rather than learn to do crime better?

[Lord Keen of Elie]

It is very difficult to estimate the extent to which rehabilitation can be effective during a short prison sentence. Indeed, where someone is sentenced to a period of less than six months in prison, the median period actually spent in custody is about six weeks.

[Lord Garnier (Con) [V]]

My Lords, I refer to my interest in the register as a trustee of the Prison Reform Trust. Does the Minister accept that short-term sentences of imprisonment are in normal times of little use in protecting the public and of no use in reforming the offender, who is frequently a mentally ill drug user? However, now they are positively counter- productive. The impact of Covid-19 means that prisoners are in their cells for 23 hours a day, essentially living in a shared lavatory with no access to purposeful activity, fresh air or rehabilitation courses. Should not all custodial sentences of six months or less be immediately suspended, with strict supervision conditions attached?

[Lord Keen of Elie]

The Court of Appeal recently set out in its judgement in the case of Regina v Christopher Manning that

“Judges and magistrates … should keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency”,


and we acknowledge that to be the case. However, that does not alter our position with regard to the ability of the judiciary to impose short sentences.

[Lord Ramsbotham (CB) [V]]

My Lords, can the Minister tell the House whether the Prison Service is happy with the current situation regarding short sentences?

[Lord Keen of Elie]

My Lords, I am not in a position to judge the happiness or unhappiness of the Prison Service, whether in this context or any other. However, clearly, where the independent judiciary finds it appropriate to impose a prison sentence of 12 months or less, we know that the Prison Service will respond positively and deal with that.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, does the Minister agree that the vast majority of short-term prison sentences are given to people who have been on community sentences, sometimes a number of times? How do the Government propose to make community sentences more robust, because surely the key is for the judiciary and the general public to have greater faith in them?

[Lord Keen of Elie]

The noble Lord makes a very good point. Of adults sentenced to six months custody or less, about 84% have previously received a community order, and, indeed, a very large proportion of those have received repeated community orders before finally the court has imposed a custodial sentence. I also acknowledge the noble Lord’s point regarding community sentences. That is one of the things our imminent White Paper is going to do, and we will seek to make community sentences tougher, for example through longer curfews and more hours of unpaid work. We are also, of course, developing the whole area of GPS monitoring with regard to community sentences.

[Lord Dholakia (LD) [V]]

My Lords, the pandemic has once again focused attention on short-term sentences or their abolition in favour of community-based penalties. As of 29 May 2020, according to the Library Note, only 95 prisoners have been released under the End of Custody Temporary Release scheme, commonly referred to as ECTR. To what does the Minister attribute the higher sentencing tariff in our courts, and could the Sentencing Council be asked look again at the way judges are using the sentencing tariffs?

[Lord Keen of Elie]

We consider that the independent judiciary should be in a position to impose the sentence they consider appropriate in an individual case. Releases under the early release scheme have of course been done on an individual basis and in addition, female prisoners have been released under the scheme—pregnant prisoners and those in mother and baby units. According to my figures, as of 22 June a total of 23 women had been released under that scheme.

[Lord Dubs (Lab) [V]]

May I refer the Minister again to the Ministry of Justice research report, published last year, on the impact of short prison sentences and community sentences? Did not that research show fairly clearly that replacing short prison sentences with community sentences would prevent many, many crimes? Would not that be the best way forward?

[Lord Keen of Elie]

We are not satisfied, on the basis of available evidence, that replacing short custodial sentences with community sentences would prevent many, many crimes. As I indicated earlier, a very, very large proportion of those who do receive a short prison sentence have received repeated community orders and gone on to re-offend. It is a very difficult issue, but we plan to improve the whole area of community sentences, and that will play a part, we hope, in reducing re-offending.

[Lord Randall of Uxbridge (Con) [V]]

Further to the reply given to my noble and learned friend Lord Garnier, perhaps the Minister will consider whether we should be looking again at the efficacy of short sentences as a result of the pandemic?

[Lord Keen of Elie]

We do not consider that the pandemic is, in itself, a reason to re-examine the whole issue of short sentences, and we have no plans at present to review the ability of the judiciary to impose them.

[Lord Woolf (CB) [V]]

In view of what the Minister has said, does he agree with me that it would be sensible to follow the example, set in Scotland, of having a presumption against short sentences? That does not interfere with the judiciary’s discretion but it confines it to the minimum of cases, where it is appropriate.

[Lord Keen of Elie]

We consider that the judiciary is in a position to exercise its own independent judgment with regard to the imposition of short sentences, without the need for further guidance.

[The Deputy Speaker (Lord Bates) (Con)]

My Lords, I am afraid that the time allowed for this Question has now elapsed, so we will move to the third Oral Question.