Short prison sentences are the focus of the following oral question to the Government in the House of Lords on 29 June 2020: “Lord German to ask Her Majesty’s Government what plans [it] has to reduce the number of short prison sentences”.

The effectiveness of short-term prisons sentences has been debated for several years. Those in favour of reform say that such sentences are an ineffective deterrent that increase criminality. Opponents to reform argue that the abolition of such sentences would result in criminal individuals, who would otherwise be incarcerated, being free to commit further crime. Both sides of the argument are explored in this blog.

History of calls for reform to short prison sentences

Calls for reform of the use of short prison sentences in England and Wales are not new.

In July 2001, the Making Punishments Work review, also known as the Halliday Review, looked at the sentencing framework in England and Wales. It found that shorter prison sentences were “ill-equipped to do anything to tackle the factors of underlying criminal behaviour, by comparison with any other sentence […]”.

The Coalition Government’s transforming rehabilitation reforms in 2013 also considered, amongst other things, the use of short prison sentences and their reduction on reoffending.

Five years later, the House of Commons Justice Committee issued its Transforming Rehabilitation report in 2018. The committee recommended that the Government introduce a presumption against short prison sentences. The Government welcomed this, saying it was “currently exploring options […]”. In a follow-up report in July 2019, the committee noted the Government’s stated intention to move away from short custodial sentences.

The Conservative manifesto for the 2019 election did not explicitly include plans to reduce the use of short prison sentences.

What has the Government recently said?

A Ministry of Justice analytical series study from 2019 referred to evidence that suggested prison sentences of under 12 months, without supervision on release, were associated with higher levels of reoffending than sentences served in the community.

During his time as Justice Secretary, David Gauke advocated for the criminal justice system to move away from using short prison sentences of up to six months. Mr Gauke referred to research suggesting that the replacement of certain short prison sentences with community orders could lead to 32,000 fewer proven reoffences per year. He argued, amongst other things, that short prison sentences did not offer enough time to address problems such as drug misuse.

Mr Gauke’s successor, Robert Buckland, announced that short sentences of under six months would not be abolished. Speaking to the House of Commons Justice Committee in October 2019, Mr Buckland said he did not believe abolishing short sentences was the right way forward:

My own experience as a recorder teaches me that there are times when, however reluctantly, [short term prison sentences] should be available to judges and magistrates. For example, repeat offenders who fail to comply with community orders ultimately need the sanction of custody.

What are the arguments on short prison sentences?

In March 2019, Ellie Reeves (Labour MP for Lewisham West and Penge) led a Commons debate about the cost and effectiveness of prison sentences of under 12 months. Ms Reeves said that short sentences often resulted in limited opportunity to address the needs of the prison population. She provided examples of limited access to education, work, and offending behaviour programmes.

Robert Neill (Conservative MP for Bromley and Chislehurst) agreed with Ms Reeves, referring to the purpose of prison being, not just punishment, but a place for reform and rehabilitation. Marion Fellows (SNP MP for Motherwell and Wishaw), highlighting the economic costs of short prisons sentences during the debate, said:

[…] if prisons are full of people on short sentences, there will be less time and money available for real rehabilitative work within the prison system.

In contrast, John Hayes (Conservative MP for South Holland and The Deepings) argued that the removal of short prison sentences could send out the wrong signal. Mr Hayes said that the Government should instead focus on reforming prisons:

Prison is of course about trying to put people straight, but it is also about punishing people for the harm they have done. That is an entirely respectable part of criminal justice, and it is what our constituents expect of us and of the Government.

In February 2019, a report by think tank Civitas stated that ending prison sentences of below six months would see 34,000 individuals receive non-custodial sentences each year. The report’s author and founder of the Centre for Crime and Prevention, Peter Cuthbertson, said:

The [G]overnment must now consider the evidence, rather than proceed any further with plans for an effective amnesty for burglars, shoplifters and other prolific criminals.

Andrew Neilson, the director of campaigns for Howard League for Penal Reform, was quoted by Sky News as describing the Civitas study as “scaremongering”. In a blog written by Frances Crook, chief executive of Howard League for Penal Reform, in July 2019, Ms Crook spoke of reasons why short prison sentences should stop. Her reasoning included their ability to “embed criminality” and link to recidivism.

In 2018, the Prison Reform Trust called on the UK Government to follow Scotland and introduce a presumption against short prison sentences. A presumption against the use of sentences of three months or less was first introduced into Scotland in 2011. This came into force as an amendment to the Criminal Justice and Licensing (Scotland) Act 2010. The presumption against such sentences was extended to short sentences of less than 12 months in July 2019. An evaluation of Scotland’s extended presumption in February 2020 noted a decrease in the use of short sentences in Scotland.

Coronavirus and short prison sentences

The coronavirus pandemic has ignited calls to temporarily reduce the use of short prison sentences.

On 1 April 2020, the Revolving Door charity argued that the Government should temporarily suspend prison sentences of six months or less for certain non-violent and non-sexual offences. This call was supported by a coalition of members from the House of Lords, police and crime commissioners, academics and more. Matthew Ellis, the Police and Crime Commissioner for Staffordshire said:

There are practical reasons during the current pandemic to reduce pressure on our prison service by releasing low-risk, non-violent individuals serving short sentences […].

On 7 April 2020, the Government began the end of custody temporary release scheme (‘ECTR’). This allows ‘risk-assessed prisoners’ who are within two months of their release date in England and Wales to temporarily released. The aim of the ECTR was to limit the spread and impact of coronavirus on the prison estate. As at 29 May 2020, 95 prisoners had been released under the ECTR in England and Wales.

On the same day that the ECTR came into operation, the House of Commons Justice Committee asked the Justice Secretary whether the coronavirus pandemic had thrown into perspective the need to consider short sentences. In response, Mr Buckland said “it was tempting to use the crisis as a pretext to change policy on sentencing”, but he was not persuaded that short sentences should be abolished.

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Image by Emiliano Bar from Unsplash.