In 1993, speaking in character as a hard-line Conservative home secretary Michael Howard famously (or, for some, infamously) asserted that “prison works.” Among other things these two words may be read as an implied rebuke to Kenneth Baker, a less draconian Conservative predecessor in the office of home secretary, who, in that capacity, had overseen the passing of the Criminal Justice Act 1991. This is a legislative measure remarkable for its penal restraint, at least when looking back from 2014. Under its terms the primary determinant of the duration of a prison sentence and other penal measures was based on a restrained version of the retributivist theory of punishment. Under the Act the calculation of the defendant’s (D) just deserts was based on the gravity of the criminal offences and the attendant circumstances on which D’s convictions were based. Previously, D may have been found guilty of criminal offences committed at an earlier stage of his life and served time or suffered some other penalty for this offending. By dint of this previous punishment, D was considered to have paid his dues and he would start with a clean sheet when next up for punishment. In other words, the default position under the Criminal Justice Act 1991 was that previous offending would have no aggravating effect on determining a proportionate punishment for current offending (It should be noted, however, that The 1991 Act did make provision for the imposition of “longer than commensurate” sentences for dangerous offenders but in a more limited form than in later legislation).
The restraining impact of the 1991 Act was short lived. Michael Howard’s enthusiasm for longer prison sentences played well with the electorate judging by the opinion polls and the (New) Labour party decided to get in step. Tony Blair’s slogan – “tough on crime; tough on the causes of crime” – also went down well with potential voters, particularly the first part. The restrained retributivism the 1991 Act was doomed following this two party consensus (By and large the Liberal Democrats did not enter the penal populism stakes).Indeed, a rivalry ensued as to which party was toughest. Whether or not prison works depends on what you are seeking. What prison can do is radically reduce D’s opportunities for offending against members of the general public while he is incarcerated, something well understood by everyone. Risk prevention became far more salient in penal policy. Applying the plausible generalisation that the past is a reliable guide for the future, D’s past offending as well as his current offending featured in the risk assessment. The more adverse the risk assessment, the longer D should spend inside if crime prevention rather than retributive justice is the aim.
Legislative provisions based on this preventive rationale culminated in sections 224 to 236 and schedules 15 and 15A of the Criminal Justice Act 2003 which introduced dangerous offender legislation of unprecedented inflexibility and breadth. These provisions replaced the “longer than commensurate” sentences of the 1991 Act and “automatic” life sentence introduced in the Crime (Sentences) Act 1997. All that can be said here is that the combination of extended sentences, automatic life sentences, and imprisonment for public protection (IPP) brought in by the 2003 Act caused a surge in imprisonment, a plethora of appeals, and a logjam at the Parole Board. The late Dr David Thomas, the leading academic authority on sentencing and also an experienced practitioner, described the impact of these measures as “catastrophic” and “the worst disaster (so far) in penal history.” Sticking plaster reforms were brought in by the Criminal Justice and Immigration Act 2008 (ss 13-18 and Schedule 5) and the whole scheme was largely dismantled by sections 122-128 of the Legal Aid, Sentencing, and Punishment of Offenders Act 2012.
Some knowledge of this dismal history is necessary to any informed appraisal of the dangerous offender clauses to be found in the Criminal Justice and Courts Bill (clauses 1-5). The 2012 Act had significantly improved matters, at least for those who favour a sense of proportion in punishment but without disregarding the legitimate public interest in being safeguarded from dangerous offenders. Indeterminate imprisonment for public protection and indeterminate extended sentences are abolished, replaced by a new extended, determinate sentence where dangerousness is presumed on the basis of fewer qualifying offences than before. Two thirds of the extended determinate term must be served before the prisoner is eligible for parole. A life sentence based on a dangerousness assessment can still be passed but only where D is 18 years old, is convicted of an offence which would otherwise merit a determinate sentence of 10 years or more and, additionally, has previously served a sentence of 10 years or more. Moreover judges need not impose a life sentence if in the circumstances it would be “unjust”.
In the light of recent penal history, there is a strong case for leaving the 2012 reforms well alone at least for the medium term. This is not the opinion of the Minister of Justice, Christopher Grayling, another penal populist politician. One cannot resist the feeling that he is trying to recapture some of the ground reluctantly ceded in 2012 under Liberal Democrat pressure. As the Bill currently stands, prisoners serving an extended determinate sentence will no longer be released after serving two thirds of their term. Early release will require a positive safety assessment from the Parole Board. Provision will also be made for prisoners convicted of child sex offences and terrorist related offences who have not received an extended, determinate sentence. No longer will they be released on licence after serving one half of their term but must apply to the Parole Board for early release. If early release is not obtained the whole term will be served and then release on 12 month licence.
No empirical case has been made supporting these changes which are bound to be challenged in the courts if applied to prisoners already serving their terms. No doubt, if these clauses are enacted, some crimes will be prevented. Beyond doubt, many prisoners will be disproportionately punished without any offsetting gain in security.
Robert Sullivan is Professor of Criminal Law at the University of Sussex