Written evidence from Howard League for Penal Reform (PCS0396)

Summary

1. The Howard League welcomes the opportunity to respond to the Joint Committee on Human Rights’ Call for Evidence on the Police, Crime, Sentencing and Courts Bill.
2. The tenor and message of the Bill set a worrying precedent in terms of illiberal leadership, undermining human rights rather than treasuring them. The Howard League strongly opposes the punitive provisions that will increase the likelihood of people being imprisoned and the length of time people will spend in prison: these measures present an unjustified interference with the right to liberty and may unduly penalise people voicing legitimate concerns or people with mental health problems and/or past experiences of trauma.
3. The increase in the time people spend in prison will result in great human and financial cost and offer no benefit.
4. Many provisions in the Bill will undermine children’s rights. The changes to the way the Detention and Training Order works will result in more children in prison, undermining the positive amendments to the use of remand and the welcome decreases in the child prison population in recent years. The harsher starting points proposed for children who have committed murder are at odds with the UN Convention on the Rights of the Child and Sentencing Council guidance. The changes to custody release points will mean that more young people turn 18 in prison and receive less support and supervision on release.
5. The Bill ignores the scientific and legal consensus about the developing maturity of young adults. The proposal to extend whole life orders to young adults under the age of 21 risks taking away the “right to hope” which is encompassed in Article 3 of the European Convention of Human Rights.
6. The Bill removes minimum term reviews for young people who turn 18 before being sentenced to detention “during Her Majesty’s Pleasure”. This contradicts the rationale of the sentence, which reflects children’s lesser culpability for offences at the point they commit them.
7. The proposals in the Bill that expand the use of electronic monitoring interfere with the right to liberty and personal development: in the context of a Bill that signals a punitive turn, there is a risk that they will not be used instead of custody but as a gateway to increase restrictions on liberty.
8. The Bill is a missed opportunity to reform, first, the mechanics of the imprisonment for public protection (IPP) sentence and second, Dickensian provisions that allow the courts to remand adults and children to prison for their own protection and welfare.

1.                About the Howard League for Penal Reform and summary of response

1.1              Founded in 1866, the Howard League is the oldest penal reform charity in the world. The Howard League has some 13,000 members, including prisoners and their families, lawyers, criminal justice professionals and academics. The Howard League has consultative status with both the United Nations and the Council of Europe. It is an independent charity and accepts no grant funding from the UK government.

1.2              The Howard League works for less crime, safer communities and fewer people in prison. We achieve these objectives through conducting and commissioning research and investigations aimed at revealing underlying problems and discovering new solutions to issues of public concern. The Howard League’s objectives and principles underlie and inform the charity’s parliamentary work, research, legal and participation work as well as its projects.

1.3              The Howard League’s legal team works directly with children and young adults in prison. We have drawn on our legal work in responding to this consultation.

1.4              The Howard League strongly opposes the punitive provisions of the Bill, which will result in great human and financial cost but have little prospect of reducing offending. These provisions disregard the rights of the accused and convicted, are at odds with the European Convention on Human Rights and the Convention on the Rights of the Child.  They ignore the scientific and legal consensus about the developing maturity of young adults. 

1.5              The Howard League would welcome the opportunity to provide further information about any of the points below.

2.              The Howard League strongly opposes the punitive provisions of the Bill

2.1              The overall tenor and message of the Bill is extremely punitive and sets a worrying precedent in terms of illiberal leadership. The trend towards harsher punishment and longer sentences is not based on research evidence and is a political response to a small number of unusual and high-profile cases. As the Government’s factsheets explain, the focus is on supposed public perceptions rather than the rights of either victims or the accused and convicted (Home Office, 2021a).[1]

2.2              The Bill will exacerbate other punitive trends which are currently underway. The prison population was already projected to increase sharply by 2026, due to the recruitment of 20,000 additional police officers (Ministry of Justice, 2020).[2] New performance measures for policing may also bring more people into the criminal justice system: the National Chair of the Police Federation of England and Wales has warned against “a return to a damaging, target-driven culture” such as that of the early 2000s, when people were unnecessarily criminalised for petty offences (Dearden, 2021). The provisions in the bill will increase the prison population even further.

2.3              The proposals about trespass and unauthorised encampments will compound the existing criminalisation of and discrimination against Gypsies and Travellers (Kirkby, 2021).[3]

2.4              The proposal to double the sentence length for assaults on emergency workers is likely to penalise people who are in mental health crisis or have experienced trauma. Ongoing research on girls in the criminal justice system suggests that many of the low-level violent offences committed by girls are minor assaults on a police officer. These offences must be understood in the context of the high levels of trauma experienced by girls in the criminal justice system: coercive contact from police officers can be retraumatising (Goodfellow, 2021).[4] The Howard League is aware of evidence that women are being  arrested when  they  are  showing signs of distress or have been victims of crime. Evidence collected by five police forces shows that   police   were   arresting   women  who were  visibly  distressed  or  when  concerns had been raised about their welfare (Howard League, 2021).[5]

2.5              Similarly, the proposal may penalise people who encounter police while they are in crisis and add to the criminalisation of people with mental health problems. For example, the NHS is currently rolling out a model of care which integrates police officers into community mental health services: it is aimed at repeat callers to emergency services (NHS Innovation Accelerator, 2018).[6] The small-scale pilot study noted that the police presence could increase participants’ risk of prosecution (Jennings and Matheson-Monnet, 2017).[7]

3.              Longer custodial terms will result in great human and financial cost and offer no benefit

3.1              The sentencing provisions of the Bill will significantly increase the amount of time that people who are convicted of serious offences spend in prison. This will be hugely costly (the average overall cost of a prison place was £44,650 in 2019/20) and will make it harder for children and adults in prison to maintain hope and work towards a law-abiding future in the community (Ministry of Justice, 2020).[8] It will also reduce the amount of time that people spend under supervision in the community as they readjust to life outside prison. These provisions are likely to increase the risk of reoffending and will do nothing to reduce crime more generally: there is little, if any, evidence that longer custodial terms have a deterrent effect (Nagin, 2013).[9]

3.2              The Government is aware that these proposals are not supported by research evidence. Eight days before the publication of the Bill, in response to a written question about the deterrent effect of sentences, the Parliamentary Under Secretary of State for Immigration Compliance and Justice explained that “harsher sentencing tends to be associated with limited or no general deterrent effect” (Philp, 2021).[10] Similarly, the impact assessment acknowledges that there is “limited evidence that the combined set of measures will deter offenders long term or reduce overall crime” (Ministry of Justice, 2021a).[11]

3.3              As the impact assessment explains, an increase in the prison population is likely to compound crowding, instability, self-injury and violence (Ministry of Justice, 2021a).[12] Longer sentences will also strain social and family ties, which are essential for maintaining the mental health of people in prison and reducing their risk of reoffending on release (Farmer, 2017).[13]

3.4              In its programme of work on justice and fairness in prisons, the Howard League has found that procedural unfairness – where decisions are not made and enforced in a fair and transparent way – fuels conflict in prison (Howard League, 2020).[14] The proposals to extend custody release points are likely to create a well-founded sense of injustice for people who are sentenced after the Bill comes into force. As the impact assessment recognises, the injustice of people serving the same sentence but facing vastly different release points “could lead to prison instability” (Ministry of Justice, 2021a).[15] It will also make it harder for people in prison to develop a positive, law-abiding identity: the Howard League’s legal team has found that young people are far more likely to understand and respect the rule of law if they can see that it applies fairly to everyone. Late release proposals also mean less time under supervision in the community following release from prison, which is important for public safety and confidence.

3.5              The power to require release to go through the parole board after sentence where there are concerns about terrorism is going to result in release provisions being imposed retrospectively, contrary to Article 7 ECHR.  It will also mean that people may not have sufficient time to prepare for parole board release hearings or may be released without any supervision at all.

4.              The Bill will undermine children’s rights

4.1              The Bill contradicts the Government’s “ongoing commitment to give due consideration to the UN Convention on the Rights of the Child when making policy and legislation” (Zahawi, 2018).[16] The provisions about custody release points and Detention and Training Orders will needlessly increase the amount of time which children spend in custody. This is incompatible with Article 3 of the Convention, which states that the best interests of the child must be a primary consideration in all actions concerning them, and Article 37, which states that children must only be imprisoned for the shortest appropriate period of time (UN General Assembly, 1989).[17]

4.2              The Bill proposes increasing the custodial term served by children who are given sentences of seven years or more for violent or sexual offences and reducing the time which they will spend on licence in the community. At present, a child who receives a seven year sentence at the age of 14 will be eligible for release on licence before they turn 18. On release, they will be entitled to resettlement support from statutory services, as well as being supervised while they serve the second half of their sentence in the community. Their responsible officer will watch out for any warning signs that they might reoffend and will promptly intervene if they become concerned. If this provision is passed, the Government’s impact assessment predicts that 50 children who would formerly have been released as children will instead transition to the adult estate each year. These young people will become more institutionalised, they will experience release as a greater shock while receiving less support, and they will have a shorter period of time under supervision in the community as they readjust to life outside prison (Ministry of Justice, 2021a).[18] It is hard to see how this will serve the stated aim of protecting the public.

4.3              The number of children in prison was already projected to rise by more than 300 over the next five years and will rise further because of the changes to custody release points (Ministry of Justice, 2020).[19] It is in this context that the Bill proposes changes to Detention and Training Orders which will increase the number of children in prison, on the grounds that judges are allegedly forced to pass overly lenient sentences (Ministry of Justice, 2021b; Home Office, 2021b).[20] This is a regressive measure that will reverse the welcome fall in the number of children in custody and undermine the impact of the tightened criteria for remanding children to custody.

4.4              The proposed “sliding scale” of starting points for children who commit murder will give older children sentences closely approximating those for adults. This contradicts the principles of the Convention on the Rights of the Child and the scientific evidence about age and maturation. The new starting points will undermine these considerations for older children who are convicted of murder.

4.5               The sliding scale implies that older children are less vulnerable and more culpable and that a 17 year old is on the cusp of fully-grown adulthood. Yet scientific evidence suggests that adolescence is best understood as a phase of life which extends from around age 10 to age 24 and that young people continue to develop rapidly throughout this period, including in ways which affect their culpability for offences (Sawyer et al, 2018).[21] As the Children’s Society has warned, older children can be especially vulnerable: they are confronted with glaring gaps in the law and service provision and are liable to have “the protections and support of childhood stripped away as they face huge life challenges”. Children aged between 16 and 18 are at heightened risk of exploitation, including criminal exploitation (Pona et al, 2015: 4; Turner et al, 2019).[22]

4.6               The vulnerability of older children was recognised in R(HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin), a case concerning the rights of 17 year olds to appropriate adults at the police station. LJ Moses confirmed that “Article 8, read with UNCRC, requires a 17 year old in detention to be treated in conformity with the principle that his best interests were a primary consideration”.[23] His judgment cited the 2002 concluding observations of the UN Committee on the Rights of the Child, which identified children between 16 and 18 as among the most vulnerable (Committee on the Rights of the Child, 2002).[24] Children in conflict with the law are also likely to have other vulnerabilities identified by the Committee: children who have been eligible for free school meals, children from Black or Traveller backgrounds and children who have spent time in care have a much greater risk of experiencing youth custody (Bowyer et al, 2021).[25]

4.7              The courts reach judgments by balancing all the relevant factors, including age and maturity, and considering how they apply in each individual case. As Woolfe LJ explained in R v Peters [2005] EWCA Crim 605, it would be entirely unworkable to base sentences on mathematical calculation or to apply “a mathematical scale, starting at 12 years for the eighteen year old offender, moving upwards to 13 years for the nineteen year old, through to 14 years for the twenty year old, culminating in 15 years for the twenty-one year old”.[26]

5.              The Bill ignores the scientific evidence and legal consensus about the developing maturity of young adults

5.1              The Bill is at odds with the body of caselaw and Sentencing Council guidance which recognises that young adults aged 18 to 25 are a distinct group who should be treated differently in sentencing (Emanuel et al, 2021).[27] Neuroscientific and psychological evidence has demonstrated that young adults are far more susceptible to peer pressure than older adults and that their frontal cortex, which regulates decision-making and impulsivity, is still developing (Howard League and T2A, 2018).[28] The Sentencing Council’s expanded explanation on “age and/or lack of maturity” instructs courts to consider young adults’ developmental stage in assessing their culpability for offences and the impact of a sentence (Sentencing Council, 2019).[29]

5.2              The Bill brings punishments for older children closer to those given to young adults and punishments for young adults closer to those given to older adults. This is the opposite direction of travel from the caselaw on sentencing young adults. For example, in the case of R v Balogun [2018] EWCA Crim 2933, Holroyde LJ held that the Sentencing Council Guideline on Sentencing Children and Young People was also relevant to sentencing young adults.[30]

5.3              The expansion of whole life orders to young adults aged 18 to 21 would arguably amount to inhuman and degrading treatment. In Vinter and Others v the United Kingdom [2013] ECHR 645, the European Court of Human Rights held that whole life sentences which did not allow any possibility of review or release were incompatible with Convention rights. As Judge Power-Forde explained in her concurring opinion:

Article 3 encompasses what might be described as “the right to hope” … The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.[31]

5.4              Though the legality of whole life orders was upheld by Hutchinson v the United Kingdom [2017] ECHR 57592/08 on the grounds that release is theoretically possible, nobody on a whole life tariff has ever been released and the criteria are exceptionally narrow. The criminologist Mark Pettigrew has pointed out that release can only be considered if someone is expected to die from a terminal illness within the following three months, a situation which can hardly be “brought about by a prisoner through rehabilitative efforts; terminal illness can provide no hope” (Pettigrew, 2017: 131).[32]

5.5              The legality of whole life orders for young adults is especially doubtful: an 18 year old who knows that they will only have a chance of leaving prison if they someday develop a terminal illness is clearly being denied the right to hope. This is especially concerning given young adults’ developmental stage and their capacity for significant change in a short period of time.  Conversely, an 18 year old entering prison with a whole life order is likely to feel as though they have nothing to lose and may pose significant management problems to the prison.

6.              The proposed changes to minimum term reviews are at odds with the rationale of detention during Her Majesty’s Pleasure

6.1              The proposed changes to minimum term reviews clearly contradict the aims of the sentence of detention during Her Majesty’s Pleasure and the caselaw about the sentence. In R v Secretary of State for the Home Department ex parte Smith [2002] UKHL 51, which concerned the right to a minimum term review for a young adult who had been sentenced to detention during Her Majesty’s Pleasure for a murder committed four months before her eighteenth birthday, Lord Bingham explained that:

              The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. It would in many cases subvert the object of this unique sentence if the duty of continuing review were held to terminate when the child or young person comes legally of age (§12).[33]

6.2              The Bill proposes changing the sentence in exactly the way that Lord Bingham argued against and that all four Law Lords agreed to be wrong: a young person deemed by statute to be not fully mature when committing their crime would be punished as if they were. The right to a minimum term review should remain available to all young people who have committed murder as a child and are sentenced to detention during Her Majesty’s Pleasure, regardless of whether they turn 18 before being sentenced.

6.3              Minimum term reviews do not mean that young people who have committed murder have their sentences significantly shortened. In the Howard League’s experience, any reductions in sentence length are relatively small and there are strict criteria: young people can only have their minimum term reduced if they have a significant change in maturity and outlook, if continued detention              would seriously undermine their development in ways which cannot be mitigated in prison, if there is new evidence about the circumstances of the offence or if they have made exceptional progress in prison (Howard League and T2A, 2018).[34] At the same time, the right to a minimum term review preserves the right to hope described above and encourages young people to work towards and maintain a positive and law-abiding identity.

6.4              The proposed changes are likely to be discriminatory in effect by removing this right from a person who is sentenced after he or she turns 18.  They will unfairly penalise young people whose cases are delayed because they are waiting for psychiatric or psychological assessment, as well as young people whose cases are delayed by court backlogs.

7.               The expansion of electronic monitoring may increase restrictions on liberty

7.1              The proposals to expand the use of electronic monitoring for children on Youth Rehabilitation Orders and the length of sentences where children will be subject to electronic monitoring represent significant additional restrictions on liberty. It is important that these provisions are used as an alternative to custodial sentences which courts can have confidence in, rather than as an alternative to other community sentences.

7.2              The proposal to allow responsible officers to vary electronically monitored curfew conditions without going to court erodes due process and increases the significant amount of power which Youth Offending Team staff already have over children on licence. Anxious and judicial scrutiny must be applied to decisions which significantly interfere with children’s liberty.

8.               The Bill is a missed opportunity for much-needed reform

8.1              The Bill is a missed opportunity to reform the imprisonment for public protection (IPP) sentence and the outdated provisions which allow courts to remand people to prison for their own protection.

8.2              The imprisonment for public protection (IPP) sentence was abolished in 2012, on the grounds that it was deeply flawed in design and put unsustainable pressure on the prison and parole system (House of Commons Library, 2019).[35] However, the sentence was abolished only prospectively, not for those who were already on it. The Prison Reform Trust has shown that as of 30 September 2020, nearly two thousand people on IPP sentences had never been released and a further 1,400 were in prison after being recalled to custody. As the sentence includes an indefinite licence period, there is no guarantee that the numbers of people in prison under IPP will fall any time soon: recalls of people on IPP sentences have been increasing since 2017 (Prison Reform Trust, 2020).[36] The mechanics of the sentence should be altered to reduce the licence period to two years, unless the Secretary of State applies to extend it.  This would break the cycle of recalls to prison.

8.3              The Howard League acts as secretariat to the All-Party Parliamentary Group on Women in the Penal System, which is conducting an inquiry into reducing the imprisonment of women. Last year, the Howard League published an All-Party Parliamentary Group briefing on provisions which allow judges and magistrates to remand an adult to prison for their “own protection” or to remand a child to prison for their “welfare”. The White Paper itself suggested reforms to remand for own protection but this has not been included in the Bill. These provisions are out of sync with the positive changes to the use of remand for children in the Bill.  The briefing argued that this power is outdated and wrong and that the provisions must be repealed. Prison is in no way safe and people in crisis need treatment and care, not punishment (Howard League, 2020).[37]  An amendment has been laid to remove these Dickensian provisions from the Bill.

9.               Conclusion

9.1              The Howard League is deeply concerned by the tenor and message of the Bill and by the punitive provisions which will send more people to prison and keep them there for longer. Many of the proposals in the Bill threaten to undermine the rights of children and young adults: they will reverse the welcome fall in the number of young people in custody and are – as the Government’s own impact assessments concede – unlikely to reduce levels of reoffending or overall crime.

18/05/2021