Cutting custodial sentences the proposed reform

18th January 2019 Business Crime

This week Prison Minister Rory Stewart contented that custodial sentences of 6 months or less are ‘long enough to damage you and not long enough to heal you’. It is proposed that the sentencing powers of the court to impose prison sentences of 6 months or less ought to be abolished.

Short sentences are seen as ineffective, allowing for little if any time for rehabilitation and causing massive disruption to offender’s lives, the result being even higher rates of repeat offending. It is suggested that short prison sentences are not as effective as cutting re-offending as community orders; plans to increase education and workshops will replace prison sentences. The proposal would of course also ease pressure on prisons such as HMP Liverpool and HMP Nottingham which have been reported to be ‘fundamentally unsafe[i]’. Given statistics that over half of all offenders who receive an immediate custodial sentence are sentences of 6 months or less, the move would dramatically affect and arguably improve such appalling conditions.

The plans would mirror the law implemented in Scotland in 2010; the courts are now guided by a legal presumption against sentences of less than six months. If a custodial sentence of 6 months or less is imposed, the reasons are required to be noted in court. It is reported that re-offending rates in Scotland have fallen to their lowest levels for nearly two decades. There is arguably cogent evidence that the abolition would be an effective long term route to reducing crime rates in England and Wales.

Will the proposal however be deemed as taking a ‘soft approach’ on crime? This question must be considered alongside the broader question of what is the true purpose of a custodial sentence; deterrence, punishment, rehabilitation, or a combination of the same? Whilst the new recommendations are said to deal more effectively with rehabilitation, what of those who have been a victim of a domestic burglary, or someone who’s property has been damaged? Whether victims of crime will feel that they have been belittled by the criminal justice system is a debate likely to arise. The radical change has been deemed by some as ‘soft justice’ and a move that would allow offenders to ‘dodge jail.’ Whilst such views are inevitable, it must be noted that the new proposals would not be applicable to those sentenced for violent or sex offences.

For defendants who are charged with offences that would ordinarily attract a custodial sentence, what are the alternative sentences that may be imposed by the Magistrates’ or Crown Court? Should defendants be less concerned about the consequences of offences that have been committed? The Magistrates’ Court Sentencing Guidelines set out that defendants who are to be sentenced for offences such as Theft[ii], Harassment[iii] or Anti-social behaviour[iv] would expect to receive a Band B or C fine (75% to 175% of a defendant’s weekly income), and low to high level Community Orders, which may include unpaid work, a curfew or residence condition, supervision or requirement for rehabilitation. Moreover, regardless of whether an individual receives a prison sentence, the conviction will appear on the Police National Computer (PNC) and is disclosed on both standard and enhanced DBS checks. It would therefore seem that Rory Stewart’s suggestions that his proposals will counter the impact upon offenders in prison who stand to “lose their job and their reputation„, does not stand up to scrutiny. It is argued that the potential impact upon a defendant of alternative sentences is equally detrimental and those who are likely to face such sentences must ensure they seek expert legal advice.

It is anticipated that any reforms will take place within the next 12 months.

If you have been charged with an offence and are due to appear in the Magistrates’ or Crown Court, JMW’s criminal defence team can provide the expert advice and guidance you need. Find out more about our expert team and the services and advice we provide here -

[ii] Theft Act 1968, s.1

[iii] Protection from Harassment Act 1997, s.5(5)

[iv] Crime and Disorder Act 1988, s.1(10)

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Catherine O'Rourke is a Solicitor located in Manchester in our Business Crime & Regulation department

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