Published:

63 comments

No one is going to be sentenced to ten years imprisonment for lying about where they have travelled from. Such behaviour might be reprehensible and, in the current circumstances, it may be justifiable to make it a criminal offence which, on occasion, may need to be punishable by imprisonment. But ten years – on a par with threats to kill, non-fatal poisoning or indecent assault – is evidently disproportionate. Even Michael Ellis, the Solicitor-General, who is not exactly a signed-up member of the awkward squad, has let it be known that he questions the “credibility” of the sanction.

I make this point not as a sceptic of measures to control the spread of the virus nor as a critic of Matt Hancock. Some of his Parliamentary colleagues appear to take out their frustration at the existence of Covid-19 and all that this entails on our way of life on the Health Secretary. Implicit in some of the criticisms he receives is the view that, if only someone else was in charge, we would all be going about our business unimpeded by lockdown restrictions. This is obviously nonsense.

On the big issue about the need to suppress the virus until a vaccine became available, Hancock got it right. Not everyone in Government can make that claim.

Nonetheless, the proposed maximum sentence is far too long. It also revealed an attribute that is not unique to one Minister or one government but which has been prevalent in our politics for nearly 30 years – a cavalier approach to sentencing policy.

Before making my case, let me set out some data. When I was Justice Secretary, I asked for information as to how large our prison population was compared to other European countries. For every 100,000 people in in the Netherlands, 61 were behind bars. In Denmark it was 63, in Germany it was 76, in Italy it was 99 and in France it was 104. In England and Wales it was 139.

This high prison population is a relatively recent phenomenon. In 1993, we had approximately 45,000 people behind bars. Fifteen years later, we had reached 83,000, which is roughly where we have been since (the current exceptional circumstances has resulted in a fall to 78,000, but is forecast to rise rapidly over the next few years).

The increase in numbers has not been driven by higher levels of criminality, but by tougher sentences. Speak to experienced judges, and they will tell you of how someone who would have been sentenced to five or ten years in the 1980s would now get ten or 20 years. Our prison population has risen not because there are more criminals or that more criminals are getting caught, but because our criminals are locked up for longer.

Quite right too, many will say. Longer sentences tend to be very popular. Even this week’s announcement polled well – 51 per cent thought it ‘about right’ and 13 per cent thought it ‘not harsh enough’, according to YouGov. That does not make it a good policy.

We have to ask ourselves, when it comes to increasing the time people are imprisoned for any offence, why we are doing it. The first argument is deterrence, but there is little or no evidence to suggest that, say, the threat of ten years in jail is more of a deterrent than five years.

The second argument is about incarceration protecting society from reoffending. But, again, the evidence tends to be weak to support this (and, by and large, the more serious the offence, the less likely the chances of reoffending).

The third argument is about society articulating its feelings of repugnance at particular behaviour by the severity of the punishment. I certainly do not dismiss the need for our criminal justice system to reflect our shared sense of outrage over particular crimes. This is a legitimate factor in determining sentencing policy. However, as a society, in recent decades we have become noticeably keener to articulate our feelings of repugnance.

This process often starts with a targeted announcement that applies to only a small number of criminals. To give an example, a minimum sentence of 30 years for murder involving firearms or explosives was imposed in the 2003 Criminal Justice Act. This applies, thankfully, to very few cases but it made the minimum sentence for knife murders look low, so that increased from 15 years to 25 years in 2009, after a high-profile case. And then when it comes to determining the appropriate sentence for other offences – such as attempted murder, or grievous bodily harm, or possession of a weapon – judges will take that minimum sentence for a more serious crime as a reference point.

Consequently, we have a ratchet effect. There is a high-profile crime; there is tabloid outrage over the leniency of a sentence, the Government increases the maximum or minimum sentence for that specific crime, sentences for lesser crimes increase accordingly – by which time many offenders face a longer stretch and the prison population rises yet further.

I am acutely aware that trying to step off this escalator is enormously difficult. In my own time as Justice Secretary, I tried to resist routinely inflating sentences for serious offences, rather than going as far as trying to reverse the trend for the previous 30 years.

Instead, I focused on trying to keep minor offenders out of prison. These are people who are frequent offenders where the focus has to be rehabilitation. Prison – with the inevitable disruption to family life, accommodation and employment – makes that much more difficult. The evidence points to non-custodial sentences being much more effective in reducing reoffending. Politically, there is widespread support for such an agenda and – although my policy of scrapping most short prison sentences has been dropped – there is very good work being done by my successor, Robert Buckland, and prisons minister, Lucy Frazer on this front.

Nonetheless, the Government’s Sentencing White Paper, published in September, as well as containing many excellent policies on matters like Community Sentence Treatment Orders, also contains a long list of measures that will mean sentences become even longer.

No doubt these poll well – even better than locking people up for ten years for giving inaccurate information as to their recent holiday travels – and those who will face lengthy imprisonment are deeply unsympathetic individuals.

There is a constant pressure on Ministers to be seen to do something, to demonstrate their abhorrence at criminality and to take the side of the victim. But where does this end? If – when faced with an individual crime that cuts through to the public or a crisis that requires the creation of a new criminal offence – the reaction of Ministers is always to impose a yet more draconian prison sentence as a form of virtue signalling, or to win a political arms race, sentences will become disproportionate, our prison population even more of an outlier and the burdens on the taxpayer (assuming we want a secure and humane system, which we should) unsustainable.

Yes: ten years for lying on a form is a bad policy. But this is not the first time that a misguided and disproportionate sentencing policy has been set out in order to liven up an announcement and show that the Government is being tough. And it certainly will not be the last.