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House of Lords

Friday, 26 March 2004.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Portsmouth.

Sentencing

The Archbishop of Canterbury rose to call attention to the social purpose of sentencing; and to move for Papers.

The most reverend Primate said: My Lords, the present situation of the penal system of this country gives occasion for recognising a high level of paradox. The proverbial Martian observer, perhaps a more likely character in the light of recent exploration than we might once 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. 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.

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 in the system. It is some 20 years since the then governor of Wormwood Scrubs wrote in a letter to the Times:


    "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 strongly echoed by more recent practitioners in the system, often at a high level of seniority. There is consensus not only among those concerned with criminology and the practice of the law, but across the political parties, that our present system needs to be reviewed. However, 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 this morning, and doubtless others will be making, have been made for 20 years or more.

We stand 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 in the penal system. We have 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 and government strategy, the Carter report of this year and the Halliday report of 2002 make the points amply.

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We also now have a Sentencing Guidelines Council in process of formation, and we have significant changes, and improvements, moving forward in the youth justice system. This is, in short, a moment of some hopefulness in the system.

However, issues persist around communication, both within the penal system—the sharing of good practice—and about the system, in the countering of tabloid cliche about custodial practice and its effectiveness. It is important in this debate to be conscious of the distorting effect that populist debate may have on serious consideration of these issues, and it is important to register that facile point-scoring on this subject, and the wish to appear tougher, actually cut corners and beg questions to a degree that is lethal to 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 the education, socialisation and rehabilitation of prisoners. However, with the high mobility of the prison population—just one factor among many of the overcrowding that is prevalent in the system—national parity in delivering programmes is virtually impossible. The sharing of good practice is made much harder.

It is in the light of all this that I wish to raise the question of 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. 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, and that punitive practice alone will not address motivation. A failure to address motivation is a failure to address the problem of re-offending. The most serious question 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 Ignatieff 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 institutional conditions of justice, and the prisoner gives his consent to the pain and deprivation of liberty he is to suffer".

That is a strong statement, as Ignatieff admits, which may seem uncomfortably abstract and remote in the context of current practice. Yet, a penal policy that 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. As a distinguished predecessor of mine in the Primacy, Archbishop William Temple, observed in the early 1940s, a prisoner is never simply a prisoner.

In addition to that, however, it is important that we note that the system, as currently practised, does little to achieve what is fashionably called closure for the victim. If re-offending is still a problem in 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 appealing for a review of penal policy that is slanted towards offender, rather than victim; I am

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arguing for a system and a policy that recognise both as members of society needing reintegration into something like normality.

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 that 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, those elements of restoration, reparation and rehabilitation are imperative. I welcome, therefore, the definition of sentencing offered in last year's Criminal Justice Act, in which the five purposes of sentencing were spelt out with clarity: the punishment of offenders; the reduction of crime, partly through the deterrent effect of penalties imposed; the reform of offenders; the protection of the public; and reparation for offences committed. Any practice of sentencing must now take those purposes fully into consideration, and the guidelines council will need suggestions and steerage about how precisely, in practice, those are to be achieved.

That 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 in the system, and 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 must be considered and balanced before a final decision is made. That involves time and skill and, therefore, training and expense. We must consider, however, whether the expense involved in that is greater or less attractive than the expense involved in our present, fairly prodigal approach.

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 Pryor, The Responsible Prisoner, sets out the assumption that it is possible for an offender to make different choices from those that they have hitherto made. Approaching it as a Christian, I feel that that principle ought indeed to be fundamental to our approach to sentencing policy. Dignity, choice, the possibility of change and the necessary involvement of a community in building individual lives all seem to go necessarily with a 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 straightforward expulsion does little to help the victim. The point has been put with characteristic eloquence by the noble Baroness, Lady Kennedy of The Shaws, who has spoken of our present system as the warehousing of large portions of our population, including—a point that she underlined—children.

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Specifically, what are we 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 have mentioned the significance of sentence plans and the importance of the involvement of the sentencing authority with others, prior to sentence being passed. I have also mentioned—I want to underline it strongly—the need for parity in the delivery of rehabilitative programmes throughout United Kingdom penal institutions. Most importantly, however, we need a change of philosophy that 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—rightly, I believe—that regarding certain patterns of restorative justice as an easier option than custody is false.

We need involvement and investment in restorative justice models, as argued in the Home Office paper of July last year to which I referred. I note in that paper the commitments to work across the boundaries of the criminal justice system and other systems; the possibility of the further significant development of community justice centres; and a general exploration of means of diversion from prosecution in the first instance. That will go forward only if there is also caution at the highest level in the country about creating new criminal offences with custodial tariffs. Reading this week about a parent gaoled for collusion with her child's truancy, I found 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—particularly in Berkshire, I believe—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, I heartily endorse the much quoted remark made by 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.

What 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. Again, I refer to a remark made by Governor John McCarthy, who said that he did not join the Prison Service to manage overcrowded cattle pens.

What we are looking for is very simple. It is a sentencing policy that takes responsibility for the social fabric and assumes responsibility in both offender and victim. It is a policy that 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 defender alike. It is also a system that incidentally addresses problems of prodigality and waste in our present practice. I hope and pray that it is a system that will look to and deal with the human rights abuses that still prevail within so many areas of our penal practice. I beg to move for Papers.

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11.21 a.m.


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