SE Regional Meeting of
Chairs of Area Probation Boards
and Chief Probation Officers
17 October 2001
Later today you will be considering your vision for the probation service in this region. It is a good time to be doing so. The probation service has gone through a number of significant changes over the last few years and now we have the Halliday report on sentencing Making Punishments Work.
The Home Secretary has asked for a wide-ranging debate following the Halliday report. The report clearly sets out why such a debate is overdue. Its first chapter sets out inadequacy of short prison sentences and the weakness of longer ones; the muddled approach to persistent offenders, the lack of confidence in community sentences and the muddled and weak enforcement systems. With impeccable understatement worthy of the most senior of civil servants, the chapter is entitled “The Case for Change”.
One of the significant elements of the Halliday report is that it is signalling that our attitude, not only to sentencing, but to the whole criminal justice system may be changing. Some people have seen the criminal justice system as feeble, catching and dealing with only a tiny proportion of crime. Those people see known offenders as only the tip of some ghastly iceberg. Crime is commonplace and altogether too big to be able to contain. There’s hardly any point in trying and nothing much works.
That, at least, has been an orthodox view for much of my time in the criminal justice system – which now amounts to a third of a century. I have always felt this to be a completely wrong and dangerous view because of its impact on how we approach our work. For instance, at its peak in the mid to late ’70s, the probation and prison services were completely lost – and the prison service encapsulated the heights of their endeavours in that doleful phrase “humane containment”.
Halliday signals that another view may be taking over. This is that, although there may be many people who collect a criminal conviction – about a third of men by the time they get to age 46 – a mere 100,000 people are responsible for 50% of crime and that the number of active offenders in the community may be as small as 1.2 million, or 2%.
There is an enormous difference between thinking that persistent criminal behaviour is commonplace, even normal, and realising that, actually, it is something which is done by only 2%. It is this view which allows me to say that, in this country, we catch and deal with the vast majority of offenders. The only way not to get caught is to stop offending. This is a view I would dearly like to get across to offenders: and there would be significant advantage in getting into the life blood of criminal justice professionals.
If you see crime as commonplace, with the distinction between offenders and others lying only in the fact that the unlucky get found out, it follows that your approach to sentencing is to concentrate on the offence for which the offender has been caught and convicted. So we have built up guidelines and case law all of which is on the basis that each offence is entirely separate from any other, that the penalty for any previous offences has been paid and that the penalty for this offence should be based on this offence alone.
But that has not really struck many people as sensible. There has always been a tendency for both the judiciary and the public at large to feel that someone who has been convicted of burglary a number of times should be treated differently from a first offender. Most recently, we have had legislation to give effect to that, particularly in three strikes and out.
The real point is that, if indeed such a high proportion of crime is committed by a relatively few persistent offenders, the criminal justice system should be geared to the proper management of these persistent offenders. This is where Halliday begins to break new ground.
The significance for the probation service is potentially profound. I can remember probation officers arguing to me that their efforts should be concentrated on those people who were most likely to turn away from crime and that there was little point in trying to work with long-term repeat offenders. I doubt if that is an argument which would run now.
John Halliday sets out a number of proposals to respond to the problem of repeat offenders and, indeed sentences as a whole. Most of these proposals seem to me to be eminently sensible. But I think he fails to be radical enough, and in a way which has implications for the probation service.
What Halliday does is to see sentences imposed by the courts only on a scale of punishment. This means that he weighs factors into the scales, increasing and decreasing the level of punishment as appropriate. His report is calledMaking Punishments Work. That is good because he has distanced himself from any notion that sentences can be justified in terms of their treatment impact: but there is another possibility which the report misses.
One of the memories of youth for me are significant quotations. On a laboratory where I worked as a postgraduate were the words “in nature there are neither rewards nor punishments, only consequences”. For our purposes, that is a neat way of saying that you don’t have to be punitive to change behaviour, you just have to watch the consequences.
I was able to take advantage of this when I introduced tagging. In tagging, computers tot up any absences or late arrivals back home. Tagging showed me that you don’t need to be punitive to address offending; you just have to ensure that the consequences are spelled out and enforced. The offender knows that, for whatever the reason, the consequence of a late arrival will move him a few minutes closer towards a breach. That motivates even those who are unused to it and tagging has only a 5% failure rate, by far the lowest of any community sentence.
Another drawback of seeing sentences only in terms of the level of punishment they involve is that it keeps the debate locked in the mathematics of sentences; a half in prison, half in the community, release after a third (or is it two-thirds?) and so on.
I would like to separate all this, so that the length of any custodial portion of a sentence does not necessarily determine the time under supervision in the community. Some offences (perhaps serious fraud) may merit long periods in prison, with relatively short periods under supervision. Other offences will merit relatively short periods in prison but with a long time under supervision in the community.
Breaking the mathematical link between custody and time in the community will allow you to tackle head-on the issue of persistent offenders. A burglary of a certain severity may warrant, say, six months in prison. For a first offender, that may need to be followed by four months under supervision; for someone who has done three such burglaries, the supervision may be eight months; for a persistent offender, whilst the prison term can stay at six months, the supervision time can extend to 12 months or more – and a consequence of that will be an additional penalty for offending during the supervision period.
That goes further than the Halliday report. But I do so to demonstrate that, in my view, supervision in the community could become the major way of tackling persistent offending. That would be different supervision from some of what is done now. It would be aimed at ensuring that the consequence of offending was spelled out to the offender and enforced if he or she continued to do so.
In this way, persistent offending, which accounts for so much crime, would be addressed head-on but without the need for ever-escalating punishments.
It is a real pleasure to come her today to debate some ideas on sentencing and supervision in the community when you are looking to the future yourselves. I consider sentencing to be at the heart of criminal justice. It follows that what that sentence means in practice, and how any breach is enforced, is absolutely at the heart of the probation service.
In passing a probation order the courts are giving the probation service powers over offenders’ lives which go beyond any which are given to the police. The secret of success must lie in the proper use of these powers in order to protect the public. For me, the future of sentencing does not lie in any increased use of imprisonment. Sentencing should be used to keep offenders under supervision for as long as they persist; and the consequences of continuing to offend should be spelled out and enforced. We need a probation service which is confident over the use of its powers so that offenders are not let off the hook until they give up.
Extract from an Address given by Hugh Marriage OBE
Crime Reduction Director, Government Office for the South East