Criminal justice - the social purpose of sentencing

Friday 26th March 2004

The following are his opening and closing remarks:

My Lords, the present situation of the penal system of this country is occasion for recognising a very high level of paradox. The proverbial Martian observer, perhaps a more likely character in the light of recent exploration than we once might have thought, would doubtless be rather surprised by what they might see.

No-one appears to be satisfied with the present situation. We are familiar with the question of the expense involved in custody; the figure of £37,000 per annum as the cost of maintaining a prisoner in custody is frequently quoted and it is as frequently noted that this is a multiple of what it costs to keep a child at Eton during a year. The unsatisfactory outcomes of the system in terms of re-offending rates are likewise statistically easily demonstrable and there are human rights issues about the treatment of prisoners in custody to which attention has been drawn by successive inspectors of the prison system. And while we might expect that inspectors of the system would be critical it is rather more surprising, indeed shocking, to hear the views of practitioners within the system. It is, I think, some twenty years since the then governor of Wormwood Scrubs in a letter to the Times said, 'I did not join the prison service to manage overcrowded cattle pens, nor did I join to be a member of a service where staff that I admire are forced to run a society that debases'. Similar sentiments are echoed very strongly by more recent practitioners within the system, often at a very high level of seniority. There is in fact a consensus not only in those concerned with criminology and the practice of the law but also across the political parties that our present system needs review and yet that review seems extraordinarily slow in coming.

I am most grateful to Your Lordships for affording the opportunity for this debate. Many of the points that I shall make, and doubtless others will be making, in the course of the discussion this morning have been made for twenty years or more. However, we do stand, my Lords, at a point of some significance and some opportunity. We have the aforesaid consensus across the parties, within the academic side of criminology, and among practitioners within the penal system -- and we have, very strongly flagged, a number of concerns from government about restorative justice and non-custodial options. The 2003 paper from the Home Office on "Restorative Justice: the Government's Strategy", the Carter report this year and also the Halliday report of 2002 make the point amply. We also now have a Sentencing Guidelines Council in process of formation and we have significant changes, and I would say, improvements, moving forward within the youth justice system.

This is, in short, a moment of some hopefulness within the system and yet issues persist around communication -- and I would take that to mean both communication within the penal system, that is to say the sharing of good practice, and communication about the system, that is in the countering of tabloid cliché about custodial practice and its effectiveness. It is very important in this debate to be conscious of the distorting effect that populist debate may have upon serious consideration of these issues and very important to register that facile point-scoring on this subject, and the wish to appear tougher on the subject, actually cuts corners and begs questions to a degree that is lethal for the proper reform of our system.

Let me return for a moment to the issue of communication within the penal system. Many institutions exercise admirable practice in education and socialisation and rehabilitation of prisoners and yet with the high mobility in prison population – one factor among many in the overcrowding prevalent within the system -- national parity in delivering programmes is virtually impossible and the sharing of good practice is made much harder. It is in the light of all of this, my Lords, that I wish to raise this question about the social functions of sentencing.

As the Sentencing Guidelines Council gets into its stride, it is all the more important for there to be an articulated consensus around this matter. And part of the emerging agreement around penal policy and sentencing has to do with the recognition that punishment does not have to do simply with retribution, that punitive practice alone will not address motivation, and that the failure to address motivation is a failure to address the problem of re-offending. The most serious question here appears to be how the broken relationships involved in criminal activity are to be restored by a sentencing policy capable of being justified to victim and offender. The point was put dramatically by Michael Ignatiev some years ago in an essay on the subject, when he described humane punishment as a 'contract in which the state is bound to respect the institutional conditions of justice and the prisoner gives his consent to the pain, the deprivation of liberty he is to suffer'. A strong statement as Ignatiev himself admits, which may seem uncomfortably abstract and remote in the context of current practice, and yet a penal policy which makes provision for the recognition by the offender of the nature of an offence and therefore begins to address issues of motivation is a penal system worthy of the name. Prisoners do not stop being members of society and it was a distinguished predecessor of mine in the Primacy, Archbishop William Temple, who observed in the early 1940s that the prisoner is never simply a prisoner.

In addition to this however, it is important to note that the system as currently practised does very little to achieve what is fashionably called "closure" for the victim. If re-offending is still a problem within the system, if issues of motivation are not addressed and if questions of reparation and restorative justice are not foregrounded, the victim is left worse off than before. I am not, my Lords, appealing for a review of penal policy slanted towards offender rather than victim, rather I am arguing for a system and a policy which recognises both as members of society needing reintegration into something like normality. Now, of course, excessive expectations of the rehabilitative function of imprisonment or any other legal penalty may lead to imbalance. There is no case for infinitely extendable rehabilitative programmes; natural justice intervenes at this point. But if the purpose of sentencing is to contribute positively to a well functioning society rather than just to achieve control and damage limitation, these elements of restoration, reparation, rehabilitation are imperative.

I welcome, therefore, the definition of sentencing offered in last year's Criminal Justice Bill where the five purposes of sentencing were spelled out with clarity: the punishment of offenders, the reduction of crime – partly by the deterrent effect of penalties in post – the reform of offenders, the protection of the public and reparation for offences committed. Any practice of sentencing now has to take those fully into consideration and the Guidelines Council will need suggestions and steerage about how precisely and in practice those are to be achieved.

This raises the question of the necessary involvement of a sentencing authority with prison management and others in the construction of a sentence plan before sentence is passed. At present there are uncomfortable hiatuses within the system where it becomes impossible to construct a balanced sentence plan prior to sentencing. The possibility of a mixed pattern of custody and supervised work and restorative exercises has to be considered and balanced before a final decision is made. This involves time and skill and therefore training and therefore expense, but we have my Lords, to consider whether the expense involved in this is greater or less attractive, than the expense involved in our present fairly prodigal approach to the matter.

Central to much of this of course is the principle of the responsibility of the offender. The 2001 report constructed under the leadership of Stephen Prior on "the responsible prisoner" sets out the assumption that it is possible for an offender to make different choices from the choices they have hitherto made, and I must say, my Lords, that approaching this as a Christian I feel this to be a principle that ought indeed to be fundamental to our approach to sentencing policy. Dignity and choice, the possibility of change, the necessary involvement of a community in building individual lives, all that seems to go necessarily with the Christian approach to the dignity of victim and offender alike.

Such an approach is also arguably the only one that does not ultimately make the offender a simple outcast from the social process. It has been well said that our present policy and practice is tantamount to a sentence of banishment and little more. A philosophy of straight-forward expulsion does little to help the victim and the point has been put with characteristic eloquence by the noble lady, Baroness Kennedy, when she speaks of our present system as the "warehousing" of large portions of our population, including – a point which she underlines – children.

In specifics then, my Lords, what is it that we are looking at, as we consider the social purposes of sentencing, and the possible guidance that members of your Lordships' House and others would wish to give to those reconstructing a sentencing policy? I mentioned already the significance of sentence plans and the importance of involvement of the sentencing authority with others prior to sentence being passed. I also mentioned, and I would want to underline this very strongly, the need for parity in the delivery of rehabilitative programmes across United Kingdom penal institutions. Most importantly of all, however, we need, I should argue, that change of philosophy which takes us steadily and inexorably away from believing that a custodial sentence is, so to speak, the default position for every offence or, in some ways worse still, a measure of the seriousness with which an offence is taken. Many have insisted, I believe quite rightly, that to regard certain patterns of restorative justice as an easier option than custody is totally false.

We need then, involvement in and investment in restorative justice models as argued in the Home Office paper of July last year to which I have already made reference and I note in that paper the commitment to work across the boundaries of the criminal justice system and other systems, the possibility of further significant development of community justice centres, and a general exploration of means of diversion from prosecution in the first instance. But that, of course, will only go forward if there is also caution at the highest level in this country about creating new criminal offences with custodial tariffs. Reading this week about a parent jailed for collusion with her child's truancy, I find myself asking not for the first time whether we understand anything about the social effects of custody on family life. I note also the development, I believe particularly in Berkshire, of the Canadian model of circles of support and accountability as a means of dealing with that most difficult and challenging of subjects: the treatment of sex offenders.

In short my Lords I wish to endorse very heartily that much quoted remark of Winston Churchill in 1912, that the level of civilisation in a society is to be judged by how it treats its prisoners. Our current situation gives us little cause for self-congratulation on our level of civilisation. And all I have said should also underline the tragedy to which I alluded briefly at the beginning of my remarks, that those exercising great dedication and skill within our present penal system deserve a better vision to realise than that which they are now obliged to attempt to implement. 'I did not join the prison service to manage over-crowded cattle pens,' if I may refer once again to Governor John McCarthy's remarks.

My Lords, what we are looking for is in fact very simple. It is a sentencing policy that takes responsibility itself for the social fabric and assumes responsibility in both offender and victim. A policy which considers that the actions of the courts and the penal system alike are there to provide constructive guidance for society, guidance that can be justified to victim and offender alike. It is also a system which incidentally addresses problems of prodigality and waste in our present practice and I hope and pray a system which will look to and deal with the human rights abuses which still prevail within so many areas of our penal practice.

My Lords, I beg to move the motion standing in my name.

[A debate followed, after which the Archbishop gave the following closing remarks:]

My Lords, I have listened with the deepest appreciation to the debate and I want to express gratitude to all those who have contributed to it, particularly those who have put enormous experience at the service of our discussions today.

I am particularly grateful for the emphasis placed on two points. First, a number of speakers have referred to the impact of custodial sentencing on family life and have clearly noted the impact of that on the wider community. Secondly, the importance of restorative justice has been accepted across all the divisions in the House and has been recognised and applauded. I can only echo the Minister in hoping that what has been said on all sides of your Lordships' House will become a reality and that there will be no retiring from the positions advanced.

I repeat my gratitude to the business managers of your Lordships' House who have made the debate possible. While I do not believe that we should under-rate the difficulty of the changing mindset which we are all committed to seeking, it would be wrong to conclude the debate without reiterating the notes of optimism, which have been repeatedly sounded, and the sense of being at a moment of opportunity and growth.

I want to express personal thanks for the appreciative remarks made about the prison chaplaincy. It has been a great pleasure to hear these tributes being paid to men and women whom I know only too well to be at the forefront of their ministerial profession. In the light of all that, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

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