On 16th September 2020, the government published A Smarter Approach to Sentencing. This white paper makes a number of proposals for changes to sentencing in England and Wales. This blog looks at the provision for community sentences set out in the white paper. It is the fourth and final piece in a series of blogs that have delved into the detail of the white paper. You can read the other blogs here.

Supporting people outside of prison

The paper proposes a number of changes to the availability and delivery of community sentences, which should give more people the opportunity to address the underlying causes of their convictions in the community, rather than in prison.

The MoJ proposes to provide greater funding for the Community Sentence Treatment Requirements (CSTRs) programme. CSTRs are community sentences where people attend and complete treatment for a mental health, drug and/or alcohol problem as an alternative to custody. The CSTR programme aims to increase the use of CSTRs amongst sentencers, by improving how agencies work together to ensure that respective roles and responsibilities are clear. While the white paper doesn’t state how much additional funding the MoJ will commit to, it does state that funding will be in addition to that already committed through the NHS Long Term Plan.

There is also a proposal to establish pilots of problem-solving courts. Problem-solving courts give greater freedom to sentencers to find collaborative and outcomes-focused solutions to address the underlying factors that have led to someone coming into contact with the criminal justice system. They tend to operate out of existing courts, and focus on a specific issue or target group, such as substance misuse, mental health, families, women or domestic violence. There is much international evidence on problem-solving courts, which generally suggests they work well where the decisions of judges are informed by the expertise of specialist agencies. Clinks welcomes the greater piloting of problem-solving courts, and would urge the involvement of relevant voluntary sector providers when the pilots are being designed and established.

The paper also proposes establishing a pilot to test new ways of delivering pre-sentence reports in magistrates’ courts. Full pre-sentence reports can be hugely important to ensure sentencers are better informed of an individual’s circumstances. They can be especially important for women, to help sentencers take into account experiences of abuse and trauma, and they can also help address the disproportionate sentences given to people from black, Asian and minority ethnic (BAME) communities[1], as providing the full context and information about someone’s life can act as a mitigation against racist perceptions and biases held by sentencers.

There has however been a worrying decline in the quality and frequency of pre-sentence reports over recent years. Given the importance of pre-sentence reports, this proposal isn’t strong enough. We believe the government should be adopting specified targets for the completion of pre-sentence reports, in line with previous commitments they have made as part of the probation review programme. 

Additional measures on neurodiversity and criminal records

The white paper also proposes a few additional measures that go beyond the direct remit of sentencing. This includes a commitment for the MoJ to conduct a national call for evidence on how the system can better understand the prevalence of neurodiversity amongst people in the criminal justice system, and the development of a national training toolkit to upskill frontline staff on neurodiversity. We very much welcome this commitment to understand neurodiversity and adapt services to ensure equal treatment and access to people in the criminal justice system. We will work with the Ministry of Justice to understand how the voluntary sector’s knowledge and experience in this area can contribute to the call for evidence.

This paper also proposes changes to disclosure periods for criminal records. With some exemptions, people who serve up to four years will no longer need to be disclose their conviction to employers if they don’t reoffend for four years. Some people who serve sentences of over four years will no longer need to disclose convictions if they do not re-offend for over seven years. The result of this is positive, meaning many more people will no longer be required to disclose a conviction for most jobs or education courses, nor for housing or insurance. As Unlock highlight however, these proposals don’t go far enough, as exemptions to these reforms may mean that as many as two-thirds of people sentenced to more than four years in prison will continue to have a lifelong ‘never spent’ conviction.  

One step forward, two steps back?

There is a real risk that the potential positive impacts of measures such as CSTRs and problem-solving courts will be far outweighed by measures to make community sentences ‘tougher’. Amongst the proposals, is the creation of a new community order called a House Detention Order, which includes a lengthy and restrictive curfew aimed at people “who have not responded to existing community sentences.” The government also want to increase the maximum period of curfew enforced through electronic monitoring from 12 months to two years for more serious offences.

Without appropriate support in the community, stricter curfews and increased tagging are likely to lead to more people breaching the terms of their licence and effectively leading them into prison via alternative routes. People will find themselves back in a prison system that is underfunded and overcrowded, and will likely get worse in the coming years as the punitive impacts of other parts of the sentencing white paper further fuel population increase. People facing multiple disadvantage are perhaps the most likely group at risk of this, as people without settled accommodation and facing complex challenges in their lives may struggle to adhere to tight restrictions. The Making Every Adult Matter Coalition have published a fuller briefing setting out the impact of the white paper on people facing multiple disadvantage.

Overall, and as set out in previous blogs, this white paper fails to coherently change the direction on sentencing policy towards reforms that can reduce reoffending. Clinks thinks that instead of increasing the length of sentences, the Ministry of Justice (MoJ) should develop a clear strategy for reducing the number of people in prison. Our sentencing briefing shows how we think the government should achieve this, by addressing sentence inflation, reducing the use of short prison sentences and increasing the use of community sentences as an alternative to custody.

[1] We acknowledge that the term BAME can be problematic as it refers to a group of people who are far from homogenous. The intersection of race, ethnicity, faith, and culture makes social identities multi-faceted and shifting: the experiences of individuals within these groups will vary. Wherever possible, we seek to be specific when describing groups of people but at times use the term BAME – albeit reluctantly – to describe inequality and discrimination across groups when necessary.

This blog is part of a four-part series looking at the implications of the sentencing white paper. Read previous blogs here.