Lord Chancellor’s Speech White Paper Launch – A Smarter Approach to Sentencing

Introduction

Thank you, Iain 1

And thank you to everyone joining us remotely. It is a great shame that more of you could not be here in person today but, as the Prime Minister set out last week, restrictions on the numbers of people gathering in public is crucial if we are to control coronavirus.

In the last few months, the virus has dominated almost every aspect of our lives. For us at the Ministry of Justice, it has taken a huge amount of effort to minimise coronavirus in our prisons and to get our courts working again. But efforts have continued at pace on the issues that mattered before the pandemic and which will continue to matter after it.

The first duty of any government is to keep the public safe from harm. It is a responsibility this government takes extremely seriously, and my department has been working on a range of measures to make the sentencing system work better to protect people and to reduce crime.
It is a great honour for me to present this White Paper – entitled A Smarter Approach to Sentencing.

Throughout the course of my career, I have seen the system from many angles – as prosecution and defence counsel, as a part-time Crown Court judge, as a Member of Parliament serving on the Justice Select Committee, as a Law Officer of the Crown, and now as Lord Chancellor and Secretary of State for Justice.

Indeed, in my maiden speech to Parliament just ten years ago I set out my belief in what I called a smarter sentencing system.

Sentencing as it stands

When I first started practising as a criminal barrister about thirty years ago, it was clear that there were problems with sentencing. In the time that has elapsed, governments of all complexions have come and gone and there have been 17 major pieces of sentencing legislation. Despite all this energetic law-making, few big or meaningful strides have frankly been made in sentencing.

What we have today is a system that can be hugely complex but sadly is nowhere near as effective. Victims and the public struggle to understand it and have too small a faith that it has their safety in mind. The courts can find it difficult to navigate. Inadvertent legal errors requiring correction, sometimes all the way up to the Court of Appeal, are made, and judges are too often forced to hand down sentences that frankly seem to make little sense in particular cases.

Working with the Law Commission, we have made great progress in simplifying the law with the new Sentencing Code. It is a huge generational moment, streamlining sentencing procedural law, which will mean greater transparency in the sentencing process. It will allow judges and practitioners to move away from having to be overly focused with the technicalities of the process, and instead be much more concerned on the outcomes. It will also give the public confidence that the law is being applied correctly.

That is the bedrock of the reforms we want to make.

Sadly, we know only too well what failure in sentencing can look like, as illustrated by the recent terror attacks, where offenders were released into the community only to commit horrifying acts of violence. We took immediate legislative action to prevent offenders like them from being released automatically without being assessed by the Parole Board.

It is our duty to ensure that innocent people are protected from these threats – to ensure that sentencing puts public protection at the heart of decision-making.

At the other end of the spectrum, sentencing failures can perpetuate low-level offenders getting stuck in a life of crime. The sad reality is that our prisons have far too many offenders like these and, in many cases, their criminality is exacerbated by mental health issues or addictions. I know because, frankly unlike most of my predecessors, I have met and indeed represented people in that situation. But the state often fails to address some of the drivers of crime, such as lack of employment and stable accommodation.

This means that offenders have little hope of being rehabilitated and we, as a society, have little hope of ending the cycles of crime in which any one of us can become victims. That is a failure, letting down everyone concerned. Aside from the social impact, it is also a waste of money, with the cost of reoffending running into the billions every year.

We need a new approach.

Protecting the public from serious offenders

The White Paper focusses firstly on the most serious offenders.

Because we believe it is crucial that sexual and violent offenders spend as much of their sentence behind bars as possible. This is what the public wants, and victims should be able to expect.

Automatic release and parole board oversight

Offenders who have committed serious crimes and who are assessed to be dangerous at the point of being sentenced can receive either a life sentence or an Extended Determinate term. This means there is no automatic release and these cases go to the Parole Board to assess whether it would be safe to release offenders.

But there are small number who, for particular reasons, are assessed as posing a serious threat to the public, for example through terrorism, when that is not the crime for which they are serving a sentence. At present, these offenders will be eligible for automatic release from prison and will not fall under Parole Board oversight.

By introducing a new power for the Justice Secretary to prevent their automatic release and instead refer their cases to the Parole Board, we will now ensure that these offenders are properly assessed before being released – to determine whether or not they do pose a threat to the public, or if it would be safer for them to serve the remainder of their term in prison. This represents a major change and will reassure the public that dangerous criminals will be properly assessed before release.

Around 2,000 more serious and violent offenders who receive a standard determinate sentence of 7 years or more will now spend at least two thirds of their sentence behind bars, thanks to legislation already brought in by this government. We are going to widen that approach, so that offenders serving a fixed sentence of 4 to 7 years will also spend longer in prison.

Sentence lengths for serious offences

The public rightly expects child killers to feel the fullest and the harshest extent of the law. We will therefore ensure a Whole Life Order is not just available to sentencers in these cases, but that it will be their starting point. In exceptional circumstances we will also give judges the discretion to impose a Whole Life Order on those aged 18 to 20, where currently only those aged 21 or over may receive this severest of punishments.

Adult offenders who are given life sentences in other circumstances often do not serve enough of that sentence before they come before the Parole Board to consider their release – certainly not as much as the public rightly expect.

We will now ensure that these offenders spend longer behind bars before they can be assessed for release. By changing the way in which discretionary life sentences are calculated, we will see to it that judges base the minimum tariff to be served on what two thirds of an equivalent determinate sentence would be, rather than half, as they do at present.
We will also increase the time that must be served in prison for those who commit sexual offences against children and receive a “Sentence for Offenders of Particular Concern”. At the moment such offenders may be considered for release by the Parole Board after serving half their custodial term, but we will up that to two-thirds before the Board may look at the case.
There exists in law a minimum custodial sentence for those who commit key offences, including a “second strike” for possession of a knife or offensive weapon and a “third strike” burglary of someone’s home. These are serious crimes that put the public at risk of both physical harm and deprivation of their hard-earned possessions, and of their wellbeing when it comes to safety at home.

But too often these types of offenders receive sentences below the statutory minimum, failing to properly punish or act as any kind of meaningful deterrent and protect the public. We are proposing therefore to modify the criteria for passing sentences below the statutory minimum, making it less likely that a court would depart from the minimum term.

The public want to know that custodial sentences for these sorts of crimes do what they say on the tin. They want to know that when serious and violent offenders go to prison, that’s where they’ll stay for as long as possible. These reforms will restore their faith that the system will keep dangerous criminals off our streets for longer.

Supervising offenders in the community

It is imperative that judges and magistrates have the power to impose short custodial sentences, where they are appropriate. I have seen first-hand on many occasions cases where this is the right and frankly the only sentencing option that is realistic for the court to hand down.

But protecting the public is also about making sure that we make smart interventions to prevent low-level and repeat offenders from going back and forth to prison, for short custodial sentences that hold little rehabilitative value for them.

Offenders in this category often live chaotic lifestyles, sometimes driven by drug and alcohol misuse, or poor mental health. Their backgrounds are often characterised by entrenched poverty, absent role models, and a lack of any decent education. This makes for bleak prospects and many offenders believe that they have few options but to get involved in criminality.

There is no doubt that they deserve punishment but, if we are to have any chance of turning their lives around – and in the process preventing crime – then we need to divert them towards lives that hold the promise of the things we all want from life – a place to call home, meaningful work, a future that’s better than the past.

If we’re going to offer offenders opportunities to work hard towards those things, then we must identify their individual needs and ensure that the sentencing toolkit is able to meet them.

Community Sentence Treatment Requirement

The Community Sentence Treatment Requirement is a sentencing option whereby treatment is ordered as part of a sentence, allowing offenders to address the mental health problems or substance misuse issues that, under certain circumstances, can fuel or worsen their offending.
We want more people to have this same chance and will therefore support further scaling up of the CSTR Programme, and thereby encourage sentencers to use it to deliver tailored interventions to support more offenders.

This will of course require funding, which we will make available this year alongside the significant injection of resources already allocated by NHS England and Improvement for the CSTR Programme in their 2019 Long Term Plan.

Expanded use of technology

Some offenders need more than just treatment – they need to be monitored closely to drive changes in their behaviour. We now want to see the expanded use of technology right across the sentencing framework to achieve just that.

We will therefore expand the use of Electronic Tagging in enforcing curfews – increasing the maximum amount of time they can be used to up 20 hours per day; and we will legislate to increase the maximum amount of time an Electronic Monitoring Device can be imposed from 12 months to 2 years. Additionally, we plan to allow probation officers some power to vary EM requirements.

These changes will encourage compliance with orders of the court and will allow sentencers to address more serious repeat offending with increased restrictions.

High-Quality Pre-Sentence Reports

Pre-sentence reports should give crucial insights into the individual needs of offenders. These are often complex but with an accurate picture of the offender’s history, a court has the best opportunity to pass a sentence likely to drive better outcomes.

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