The Sentencing Bill and Criminal Justice Bill both had their first reading in the Commons on the 14 November, and the Ministry of Justice have now published the associated impact assessments and explanatory notes. The Criminal Justice bill is due for Second Reading on the 28 November; the date for Second Reading for the Sentencing Bill is yet to be confirmed.

We have summarised further detail on the provisions in each Bill that are likely to engage the voluntary sector.

Sentencing Bill

Sexual Offences (Sentencing and Release)

These provisions add rape and other specified sexual offences (a full list is provided in the impact assessment) to the “Special Custodial Sentence for Certain Offenders of Particular Concern” (SOPC) regime. Determinate sentences will no longer be available for these offences. In cases where a judge does not hand down a life or extended determinate sentence (EDS), they must instead impose an SOPC.  The provisions also alter the release point for these sentences, so that people convicted of rape and other “most serious sexual offences” will no longer be eligible for parole at the two-thirds point of the custodial term. Those sentenced to an SOPC will remain on licence for 12 months post-release, while those sentenced to an EDS will remain on licence for up to eight years, as determined by the court.

These provisions will also apply to children convicted of rape and other specified offences.

The impact assessment predicts small savings to the Parole Board and to local authorities, who will have reduced responsibilities for accommodation given shorter licence periods as well as an assumed benefit to victim satisfaction. These changes will result in a need for an additional 1,500 prison places in the next ten years, and between 2,350 and 3,400 by 2047/48, costing just over £3 billion over the next 40 years. Non-monetised costs include the worsening of conditions in prisons due to overcrowding, the reduction in access and motivation to complete rehabilitative interventions in prison, and a reduced licence time for people sentenced to an SOPC, meaning less opportunities to access either rehabilitative or resettlement support. Voluntary sector organisations working with this population will want to know how they can continue to support beyond the shorter licence period, and we will continue to work with the Minister and officials to understand this.

Presumption against short prison sentences

The Sentencing Bill introduces a duty on the courts to suspend sentences of less than 12 months, except where there is a significant risk of harm to an individual or where the convicted person has breached an order of the court, or in other exceptional circumstances that would not justify a suspended sentence.

The Ministry anticipates an increase of between 1,700 and 6,800 in community caseloads, with cost increases of just under £41 million over 10 years. Non-quantified costs include the amending of sentencing guidelines and training of sentencers and probation staff, an increase in unrepresented defendants (where legal aid is not available as liberty is not at stake), the cost of additional community resources including health and housing, and the impact on victim satisfaction. Benefits include a reduction in reoffending – the revolving door of short sentences and their financial and human cost is well evidenced. This measure is anticipated to save a total of just under £76 million over 10 years, as well as non-monetised impacts on health, family and community.

While we welcome this aspect of the Bill, the additional pressure on probation services, commissioned rehabilitative services providers, and the wider voluntary sector working with people in the community remains a concern. These services will need to be adequately resourced to meet this increased demand. There is also work to do to ensure that sentencers are informed and confident enough to suspend sentences in appropriate cases, and that there is sufficient monitoring of racial equity. We anticipate that a significant proportion of those eligible for this measure will be women, and we will be working with the women’s sector and officials to identify opportunities for collaborative work to support this measure.

Expansion of home detention curfew (HDC)

The Bill will:

• Allow prisoners serving standard determinate sentences of four years or more to be considered for HDC, provided their sentence, under current legislation, means they would be automatically released at the halfway point
• Replace the lifetime ban on HDC for people who have been recalled for breach of HDC curfew conditions, with one that only applies to where recall was still being served less than two years before the current sentence was imposed
• Remove the ban on access to HDC for people returned to prison after committing a further imprisonable offence between release from custody and the end of their sentence.

The impact assessment indicates that 850 additional people will be released on HDC, with 200 additional Community Accommodation Service Tier 2 (CAS-2), formerly the Bail Accommodation and Support Service (BASS), bed spaces needed. This will have a minimal impact on prison places but a positive impact on those released. Benefits are estimated at £9.8 million over 10 years. Costs include the need for additional probation resource, housing, and electronic monitoring capability and are estimated at £89.8 million over 10 years.

The voluntary sector has called for a presumption against short prison sentences and the expansion of HDC for some time, and we welcome these measures. To address increased demand for probation and voluntary sector services as a result of these measures, we will identify and promote opportunities for collaboration and continue to work with the Ministry of Justice and HM Prison and Probation Service (HMPPS) to ensure that services are adequately resourced and accessible so that these measures can be successful and sustainable.

Criminal Justice Bill

This is a wide-ranging Bill that contains measures covering areas including prisons, probation, the police, and the courts, as well as creating new offences. Costs include prison construction costs of £31.4 million, and ongoing costs to HMPPS of £65.6 million. Additional non-quantified costs include an increase in drug treatment demand. Though these costs are forecast to be outweighed by benefits created by other measures, they indicate the potential for increased demand for prison and treatment places, which may not be immediately available when needed.

Of the measures contained within this Bill, there are several that are likely to be of particular interest to the voluntary sector.

Overseas prison rental scheme

The Criminal Justice Bill introduces the legislation needed to facilitate the rental of overseas prison places. The impact assessment of this measure indicates that between 500 and 1,000 rental spaces are being considered, and the Ministry’s best estimate scenario is £202.9 million (over 10 years) for 600 prison places. This consists of 87% on prison rental, £23 million for transport (9%) and £8.8 million for other costs, including British Staff and Offender Management in Custody (4%). Other costs, as yet unquantified, include in-prison healthcare costs for the duration of prisoner rental periods and potential other unknown costs. A comprehensive costs assessment is not possible as there is, as yet, no agreement with a partner country.

Key questions about this proposed legislation remain unanswered – which groups are likely to be selected for transfer, how will their access to rehabilitation, regime and resettlement services be assured, how will they and their families be supported to maintain contact, and under what jurisdiction will their legal and human rights be upheld? Read more about Clinks’ and the sector’s views of this plan in the recent blog from our CEO, Anne Fox.  We will continue to ask these questions of the Prisons Minister, Edward Argar, and of officials. In the meantime, Linda Kjaer Minke and An-Sofie Vanhouche, writing in the Nordic Journal of Criminology, provide a comprehensive look at other European overseas prison rental agreements.

Replacing the Vagrancy Act

The Bill will also replace the Vagrancy Act 1824 – the legislation criminalising rough sleeping and begging. The Bill’s policy paper notes that it will “introduce powers for the police and local authorities to address rough sleeping where it is causing damage, disruption, harassment or distress, or a security or health and safety risk.” It goes on to note that, in such instances, “it would be for the police and/or local authorities to determine the appropriate response” whether that is through a “move on direction, (the) issue of a nuisance rough sleeping prevention notice or applying to a court for a nuisance rough sleeping prevention order” - with the latter measure proposed as a means to “help those who are genuinely homeless and with complex needs to be directed to appropriate support.”

We are concerned that these measures offer a criminal justice-related solution in place of what is really needed – a housing-based solution. We know that significant proportions of rough sleepers have had some form of contact with the criminal justice system, and therefore tackling homelessness is unachievable without ending prison leaver homelessness. Instead of further criminalisation, what is required is a cross-departmental effort to ensure that everyone leaving prison has access to appropriate and sustainable accommodation. At Clinks, we are working to develop solutions in this area through our work on the Reducing Reoffending Third Sector Advisory Group (RR3) Special Interest Group (SIG) on Accommodation. We are also monitoring the rollout of Community Accommodation Services Tier 3 (CAS-3) provision (temporary accommodation for people leaving prison for up to 84 nights), while focusing efforts on how to support people into more sustainable housing options once they have left CAS-3 housing.

Further measures in the Bill

There are further measures within the Criminal Justice Bill that are likely – as with the Sentencing Bill – to place greater demands on the Probation Service. These include making Multi-agency Public Protection Arrangements (MAPPA) “automatic for certain people convicted of controlling or coercive behaviour”, and an “extension of the application of polygraph testing in relation to certain [people] who pose a risk of sexual offending on release and an existing cohort that committed offences with a terrorist connection before the court was able to make such a determination.” It is important to note that though the impact assessment for these measures indicates only a small number of people will be brought into scope for MAPPA and polygraph testing, these measures will still place additional burdens on a stretched probation system.

Contact us

Clinks is keen to work with others in the sector around these Bills and will be focusing specifically on measures that will place additional burdens on the voluntary sector (mainly the presumption against short custodial sentences). If you would like to get in touch with Clinks about this, please contact our Influence and Communications team.

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