David Gauke: The Sentencing Review does not propose soft justice but tackles a problem every party must care about

David Gauke is a former Justice Secretary and was an independent candidate in South-West Hertfordshire at the 2019 general election.

This is my first column on these pages since the publication of the Independent Sentencing Review, setting out how the Government should respond to the prisons capacity crisis, which I chaired.

The Review contains 48 recommendations, but in essence makes a simple argument – our prisons are full, we cannot build them fast enough to cope with rising demand and we are going to have to do more in the community.

Since its publication, I have been asked many questions about the proposals.  Here are a few of the most asked questions, and my answers.

The Review sets out proposals that will reduce the prison population in 2028 by 9,800 compared to the current projections.  Is this driven by necessity or a belief that our prison population is too big?

I have never made a secret of my view that I see no good reason why the prison population in England and Wales should have doubled in the last 32 years (from 44,000 to 88,000) or that we have the highest incarceration rate in Western Europe (139 per 100,000 compared to 64 and 68 per 100,000 in The Netherlands or Germany respectively).  The evidence that high incarceration rates are the most effective way to reduce crime is unconvincing, but it is clear that it is a particularly expensive approach for the hard-pressed taxpayer (the annual cost for the average prison place is £54,000).

Having said all that, even if you do not accept these arguments, we cannot escape the reality that the prison population is growing faster than we can build prison places.  Taking into account a small buffer, the peak deficit in which demand for places exceeds supply is in early 2028 when the shortfall is 9,500.  Our task was to reduce the projected prison population by this number.  If we do not meet this target, there is a risk of further emergency early releases, like those we saw last autumn. 

Why are you not excluding violent and sexual offenders from your recommendations?  What about domestic abusers?

A very significant proportion of prisoners have been convicted of violent or sexual offences and excluding them altogether would mean going much further for other offences where, as it happens, reoffending rates tend to be higher.  It is, however, the case that we recommended a rather cautious reform for the more dangerous offenders on extended determinate sentences (and even that recommendation has been rejected by the Lord Chancellor) and for many other serious offenders the earliest they can be released under our proposals (half way through their overall sentence) is the same release point that was in place five years ago.

On domestic abuse, we recommend improving the identification of domestic abusers at sentencing as well as greater use of specialist courts.  We also make the case that, although custodial sentences below 12 months should only be used in exceptional circumstances, these circumstances might include when a victim of domestic abuse needs a period of respite.

There is also a broader point on why we should be cautious about blanket exemptions from the general approach to sentencing.

When it comes to sentencing, the courts will have all the detailed information in respect of an offender and the specific offence.

A judge or magistrate will then sentence in accordance with the maximum and minimum sentences set out by Parliament and Sentencing Council guidelines, which already takes into account the seriousness of the offence.  Therefore, length of the sentence should already reflect the seriousness of the offence.  But if we then also have variable release points by taking an offence by offence approach, this can result in a system which is complex, confusing and unfair.  For example, someone with a five year sentence might be released earlier than someone with a four year sentence.  The better approach, ideally, would be to reform the original sentence lengths rather than differentiate release points.

Won’t this result in more crime?

The biggest risk to rising crime is failing to address the prison population crisis.  But moving people from custody to the community need not result in higher crime – in fact, it could mean quite the opposite.  Prisons all too often turn people into better criminals, not better citizens and the evidence shows that effective measures in the community can do much more to reducing reoffending rates than prison can achieve.  This does mean investing properly in probation and other parts of the system that reduces reoffending.  The big challenge is increasing our capacity to do that in the next few months.

Isn’t this just soft justice?

Again, we have to consider the alternative which is the inevitability of reintroducing an emergency early release plan.  Even putting this aside, both punishment and prison will continue to play an important part in our criminal justice system but there is more to punishment than prison.  We can strengthen community sentences, for example, by using sanctions like driving bans and curfews more widely and enforce them more effectively.  An aspect of our Review recommendations that has attracted relatively little attention is our proposals on how financial penalties could be used more widely to deter serious acquisitive criminals.

Is this fair to victims?

We have detailed recommendations on how victims can be better informed, including how we should be more transparent about how long an offender will be in prison.  We should also remember that for many victims what matters most is ensuring that there are fewer victims in future.  This is why we must prioritise reducing reoffending by improving rehabilitation.

Why not just deport foreign national offenders?  Or reduce the remand population by clearing up the courts backlog?

This is the argument made by the Conservative frontbench.

As it happens, we recommend deporting more foreign offenders, but this will not give us the whole answer.  Many foreigners in our prisons are awaiting trial, so clearly cannot be deported.  For serious offenders with long sentences, it would be wrong to deport them straight after conviction if this meant they walked free in their home country.

We should also reduce the court backlog but we should not forget that the majority of prisoners on remand will go on to receive a custodial sentence, as will some of those who are currently on bail awaiting a trial.  It is not clear that this will reduce the overall prison population in the short term.

What is your view on chemical castration of sex offenders?

Our recommendation here was to extend the pilot of a voluntary scheme using chemical suppressants for some sex offenders.  It is not the answer for every sex offender and the evidence base needs to be built up.  But many jurisdictions use chemical suppressants, including Poland where it is used on a mandatory basis.  The Review did not recommend that, but the Justice Secretary is willing to go further.

There is a need for a debate on pharmaceutical interventions, and not just in this context.  For example, there is emerging evidence that semaglutides, like Ozempic, reduce the rewarding effects of alcohol or drugs.  It is conceivable that, one day, pharmaceutical interventions could play a role in reducing substance abuse which, in turn, could reduce the risk of reoffending for many offenders.

Why are you helping out a Labour Government?

The prisons capacity crisis is a problem facing the country, whoever was in Government.  If the Conservatives had won last year’s General Election, a similar process would have been needed.  (Indeed, our proposals on short sentences are similar to those contained in last year’s Sentencing Bill which was, therefore, Conservative Party policy.)  Regardless of party, it is a problem that has to be addressed.

Better to try to solve a problem, not exploit it.