20 The Whys and Wherefores of Penal Policy
THERE CANNOT BE any doubt that it is the duty of an elected Government to consult widely about policies regarding its penal system. Security of the state and its populace demands nothing less.
To that end it cannot abdicate its bounden duty to others. And there is a need for any Government to have available to it the best and well-informed sources of advice to inform policies, devoid of political partisanship. It must adopt policies that are socially acceptable and maintainable. But how does it arrive at those policies from within established resources? From 1944 to 1964 and again from 1966 to 1978 Government employed the device of independent corporate advice; successive administrations, obdurately, over the last 30 years have declined to look to any corporate body to supply the knowledge and expertise of penal affairs. Was that wise? I was a member throughout the 12 years (1966-78) of the Home Secretary’s Advisory Council on the Penal System (ACPS). No other member of that corporate body has put pen to paper; none more survives to tell the tale. One, Sir Leon Radzinowicz, who was a member from 1966 until his retirement in 1972, and who was formerly a member of the predecessor to the ACPS, the Advisory Council on the Treatment of Offenders (ACTO) from 1950-64, had written at length on the two bodies in his autobiography, Adventures in Criminology,1 a fascinating account of his life as the doyen of British criminology in the years after the Second World War. Only the intermission of the aborted Royal Commission on the Penal System, from 1964-66, separated ACTO from ACPS. In his view of the ACPS, Sir Leon said that ‘in fairness a broad and dispassionate assessment’ of the work accomplished by the Advisory Council on the Penal System ‘it should produce nothing but high promise’.[196] [197] Other observers voiced similar views of overall approval.[198] So the history of Britain’s formulation of post-war penal affairs needs to be told.It was Herbert Morrison as Home Secretary in 1944 who announced his intention to establish an advisory body on the penal treatment of offenders. There was nothing untoward in this; for some time it had been the practice of administrations to set up bodies to supply expertise to Ministers. Such had been predicated ever since the Committee on the Ministry of Government in 1918 under Lord Haldane had described the role and function of government departments.
On 31 March 1998 senior judges in the House of Lords (those were the days when Law Lords sitting on the Appellate Committee could still vote in the deliberative aspect of the Upper Chamber) forced a defeat on the Government on the Crime and Disorder Bill. By 114 votes to 105 they passed an amendment setting up a standing Advisory Council on Criminal Justice and the Penal System, a body somewhat more elaborate and sweeping than its predecessor. At a later stage on 28 April 1998 in the Commons, the Government removed the amendment by 11 votes to two, the two dissenters being Liberal Democrats on the committee. There the matter has rested, parliamentary-wise at least.
After 40 years of independent corporate advice on selected topics of penal reform, why did the Governments abandon such advisory bodies? The plain argument for change was the Home Secretary’s wish not to revert to old-style matters of policy-making, but to be forward-looking in seeking expeditious advice and prompt action, either administratively or legislatively. Delay in earlier processes of the ACPS dictated to central government much swifter action. The recipe for dealing with the delayed advice in the past was altogether a lame excuse for a speedier process. In 1991, when Mr Kenneth (later Lord) Baker set up the Royal Commission on Criminal Justice, following the court reversal of the conviction of the Birmingham Six, he specifically gave Lord Runciman and his colleagues two years to complete their assigned task. They duly complied; the report was published in 1993.
Time limits for reporting topics to Ministers are common enough. Indeed, the Commission on a Bill of Rights was asked in March 2011 to report by the end of 2012; it submitted its report on 18 December 2012. If the ACPS had been unnecessarily dilatory in proffering its advice - and there were grounds for this complaint - the remedy was for Ministers to impose a limit - an easy enough device to import in the terms of reference. In a letter of May 1998, Mr Jack Straw wrote to me, emphasising that he had various relevant sources which he could, and did regularly consult. But they were disparate bodies in the areas of criminal justice and were not independent bodies with the specified remit to render advice on remitted topics. Jack Straw, moreover, initiated lunchtime meetings with experts on penal issues of the day. He listened attentively, but heard nothing other than what he wanted to hear. I was a consistent member of these groups. I concluded that the philosophy (if it can be called that) of ‘tough on crime, and tough on the causes of crime’ outbid any rival claim for evidencebased knowledge and informed views on penal issues. Penal reform was a matter for pressure groups whose voice was drowned by the politics of the Government and the Opposition alike. Since 1998, any attempts to persuade Government to take advisory opinion failed miserably to receive anything but polite rejection. It is not without note that in Mr Straw’s recent (2012) autobiography of over 400 pages, penal affairs receive not even a passing reference during his period of Home Secretaryship, when prison administration often arose to cause public disquiet.The final report of the ACPS in June 1978, Sentences of Imprisonment, was on maximum penalties. With the exception of the chapter on the mandatory life sentence for murder (which was foremost in the long-standing debate on the penalty for murder, still unresolved) the remainder of the report’s recommendations on maximum penalties were not implemented, nor even seriously discussed publicly.
The report received a hostile reception from academic criminologists and was quietly buried in Whitehall circles, and has never resurfaced. Yet it was hardly the most radical policy to come from that body.The proposal, which was specifically only for a trial period of three to five years, sought to respond to the Home Secretary’s request for guidance, since it was obvious that the maximum penalties on the statute book had grown, higgledy-piggledy, over the last hundred years. The device for new maxima was to equate the existing statutory provisions with a figure that represented 90 per cent of what the courts currently passed on offenders within the maxima provided. The result of fixing the new maxima across the statute book was to determine the 90 per cent rule for each separate offence. Thus, for example, the statutory maximum penalty for rape was life imprisonment; the 90 per cent rule reduced that to seven years. The Council made absolutely no evaluation of the maximum for any offence; it merely applied the mechanical rule, whatever the result. But it felt compelled to deal with the exceptionally serious cases, for which the maxima would be regarded publicly as a wholly inadequate penalty for the specific crime. The Council proposed that the trial judge could exceptionally (according to prescriptive criteria) escape the new statutory maxima and impose sentences for cases of ‘serious harm’.
The two criminologists - Professor Sir Leon Radzinowicz and Dr (later Professor) Roger Hood - published a letter to the editor of The Times (19 July 1978) severely criticising the Council, on the footing that the Council abandoned the principle of equality as introducing an unacceptable proposal of bifurcation. Their criticism was hugely influential, and led to the report lying fallow. Some of the criticism was seriously flawed and unfair. I said so, and produce, substantially, what I said at the time. I repeat the substance of my response, which was warmly applauded by a number of my colleagues.
Since the argument advanced by the Council is relevant today (2014), it is worthy of repetition, even if rejected in the final analysis.Any contribution from two of our leading criminologists about what sentencing system this country should adopt commands instant attention from any student of this intractable social problem. The critique by Sir Leon Radzinowicz and Dr Roger Hood on July 19, 1978, of the report of the Home Secretary’s Advisory Council on the Penal System, entitled Sentences of Imprisonment, is, however, less than the best that one is entitled to expect. The two authors, in substantial part, misunderstand the purport of the Council’s proposals and disappointingly fail to proffer any alternative, practical solution. Their criticisms are long (and well- grounded) on penological theory but short (and hence unhelpful) on the hard world of realism, where penal theory has to be translated into legislation and judicial practice. [Much of what they complain about, the bifurcation of the system of sentencing serious offenders, was in fact adopted in later legislation, specifically in the fatal creation of IPPs - imprisonment for public protection - in the legislation of 2003.]
First, the misapprehensions. The authors do not properly understand the application of the proposed ‘90% rule’. It is correct of course to state that the Council recommends that the new maximum for each offence should be calculated at the level of 90% of current sentences passed by Crown Court judges. But it is inaccurate to state that ‘for the remaining 10% the Council proposes power to impose an exceptional sentence’. This suggests a demarcation rigidly fixed at the 90% level. That is simply not the case. Paragraph 170 of the Council’s report states, loud and clear: ‘The figure merely fixes a dividing line between the ordinary offender and the exceptional offender... It does not, of course, mean that in future years a fixed 90% of those imprisoned will be ordinary offenders and a fixed 10% of the exceptional cases.' To take a concrete example, it may be that rarely, if ever, will a convicted thief satisfy the criterion for an exceptional sentence.
Thus 100% (or only slightly less) of the thieves who are thought to merit imprisonment will receive sentences below the substantially reduced new maximum of three years' imprisonment. Rapists, on the other hand, might frequently qualify for the exceptional sentence, in which case perhaps more than 10% of those sent to prison might receive sentences longer than the new reduced maximum of seven years.The definition, devised to reflect cases of serious harm for which alone an exceptional sentence would be available, is arguably defective in penological terms. What the Council had in mind to do was to propose something it thought would accommodate a wide variation of opinion on what constituted the justification for a protective sentence. It avoided the term ‘dangerousness' as far as possible, for the very reason that the concept of dangerousness is ambiguous. The Council would welcome any suggestion for improving the criterion, for it acknowledges (paragraph 316) that its guiding formula might be considered insufficiently precise. It wants to ensure that only those offenders who represent a risk of serious harm would qualify for sentences in excess of the new reduced maxima. If others escape the barrier of the ordinary maximum, the formula will not have achieved the Council's purpose.
It is precisely because this is an area of obstinate difficulty and uncertainty in practice that the Council was insistent that the two-tier scheme should be subjected to an experiment - lasting 3 to 5 years - before any legislation is even contemplated. It is sad to hear Dr Hood, who has been a persistent critic of the Council for its failure in the past 12 years to pay proper regard to criminological research, failing to acknowledge the Council's insistence, on this occasion, that some scheme like the two- tier system should be put under the researcher's microscope (indeed, a leitmotif of the Council's report is the need for detailed research into sentencing practice). Further, it is difficult to understand - except on a superficial level - the criticism that the Council's proposal for unlimited lengths of sentences in the exceptional cases would lead to stiffer sentences. The experiment would necessarily have to be conducted within the existing legislative framework of the present maxima. Thus during the researched experiment courts could not pass sentences beyond the present statutory maxima.
The authors are unfair in saying that ‘only one safeguard is proposed for the prisoner sentenced to an exceptional sentence'. In fact three safeguards (of various strength) were proposed. First, no reference is made to the significant recommendation that every offender sentenced to an exceptional sentence would be entitled to legal aid. What was intended by this proposal was that every such offender would have his case reviewed by the full Court of Appeal. The authors' conclusion that ‘there seems to be no justification for giving unbridled discretion to the judiciary to sentence the exceptional cases' overlooks the fact that such discretion would almost invariably be reviewed by the Lord Chief Justice and his fellow Lords Justices of Appeal who sit regularly in the Court of Appeal (Criminal Division). The Council places more trust in that handful of senior judges than apparently do academic criminologists. Again, the Council would like to see how its system would work in practice before anyone adopts either the Council's scheme or any variation on the theme, or indeed any other viable model.
Second, the Council is further castigated for not building into the parole provisions greater safeguards for the exceptional offender. Rightly or wrongly, the Council regarded the mechanics of the parole system as way outside its terms of reference, much as Dr Hood might have liked the Council to depart from its remit and go along his path of outright hostility to the parole system. That is another subject, perhaps for another remit to a future Council. Third, the Council states (paragraph 208) that an exceptional sentence shall not be imposed without prior warning from the trial judge - a lesser, but not unimportant safeguard.
The Council is finally chastised for having averted its gaze from the intractable problems of sentencing and, in a blinkered way, pursued the safe path of a ‘neat, clear-cut solution'. That is also unfair. The Council was acutely aware of the penological philosophies that adorn the subject of sentencing. The debris of disputations among penal theorists is strewn across the battlefield of social science. The Council could have discussed, at interminable length, the competing theories of deterrence, retribution, rehabilitation and social defence. It did not think that line of argument particularly profitable. Sir Leon will recall that he and his fellow Commissioners on the Royal Commission on the Penal System in 1966 came to grief over just such issues, so that, unprecedentedly, that Commission was dissolved.
The Advisory Council was asked to devise a practical and workable system of maximum penalties. It would have been only too easy to have adopted Lord Scarman's proposal of an arbitrary overall ceiling of 5 years' imprisonment; instead the Council went for a gradualist approach to maximum penalties. It put forward its proposals tentatively, with a view to a sustained period of consultation with those involved in the administration of criminal justice; and then, given a fair wind, they would be subjected to a period of experiment.
The Council hopes that both informed and uninformed opinion will contribute to the debate with suggestions for alternative proposals. Sir Leon Radzinowicz and Dr Roger Hood offered in their article no alternative scheme; they remained faithful to the facile iconoclasm of much modern criminology. Now that the debate has begun in earnest one hopes that they will return to the subject in a more constructive mood. After all, Sir Leon, during a long and distinguished professional life, has ceaselessly thought and taught upon this thorny topic.
The rest was a deafening silence from the two critics of the Advisory Council on the Penal System. It was the last report of the Council, in June 1978. Along with other unrelated quangos it was abolished, even though a distinguished former Conservative Minister, Lord Windlesham, deeply regretted its demise.
One sentence uttered by the Advisory Council is worthy of repetition, if only because it is lost in the plethora of legislation on sentencing, but is largely relevant today in the context of a rising prison population. In an interim report in 1977 on its study of maximum penalties the Council pronounced: ‘A longer sentence of imprisonment is no greater deterrent than a shorter one’. How many sentenc- ers respond favourably to that simple principle in computing their sentence lengths?
If only the current policies had been subjected to scrutiny, as was the case in 1978, the date of the Advisory Council’s last report, it might have alerted the penal administrators to the folly of the exercise of the Criminal Justice Act 2003. In the last two decades legislative and administrative policies have underlined the validity of the criticisms of how we deal with dangerous offenders. The hastily- established IPP (imprisonment for public protection) orders of the 2003 legislation (over-hastily introduced in the Parliamentary process) had to be abolished nine years later after the intervention of pressure groups; there was no independent advisory body to warn the policy-makers off the unhappy experience of the IPP system. And present pronouncements from the Secretary of State for Justice do not augur well for the taking of independent advice before penal policy is passed.