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“Sentencing now is a mechanical numbers game, with a much reduced role for judicial discretion and personal circumstances.”

Posted on 4th May 2017

The Age of Unreason is upon us. Brexit and the popularity of Trump and May are simply symptoms of a malaise that I struggle to understand yet fear greatly: Thatcherism on steroids. There is still a suggestion in some quarters that national politics does not touch our lives in any meaningful way. It is something that we read about and watch, a soap opera if you like, not an interactive relationship.

In many ways, that thought process might have been responsible for the malaise in the first place. Yet what happens on the national scene does matter. The crude and vile debate about immigration has led to an increase in racist attacks in this country and an exit from the most successful partnership between nations that the world has ever known. Give prejudice its voice and the Age of Unreason will follow.

These are depressing and demoralising times for the liberal left. Human rights, equality and diversity are decried as out of fashion. We do not seek to solve problems but blame people for their existence.

After all, in a Trumpian/post-Brexit world, everyone is divided into ‘good guys’ and ‘bad guys’. We consistently see this narrative sprawled across the media. It trickles down and is reflected in how offenders are viewed in society. They are seen as the ‘bad guys’ who warrant punishment for their actions.

As those of us working in criminal defence understand, the actions of many of our clients must be understood in context. Many people who steal do so because they live with addiction issues. Many such individuals are put in prison, which is a wholly inappropriate place for them to be. What use is a custodial sentence in helping them to recover from their addiction? Very little. For those who are violent, that violence is a learned behaviour and often all that they knew in their home life from an early age. They often witnessed domestic violence at home or were beaten by their parents.

They are not simply ‘bad guys’ who should be locked away from society. Rather, the situation is far more complex than this and an oversimplified, black-and-white narrative is unhelpful when trying to understand it.

In the criminal justice world, though, the Age of Unreason started much earlier. ‘Bad guys must be locked up’ is a mantra that reared its head once again in the 1990s and one that successive governments have failed to address.

In the summer 2016 edition of its Bromley Briefings, Prison: the facts, the Prison Reform Trust confirmed that on 17 June 2016, the prison population in England and Wales was 84,405. It stated that since 1993, the prison population in England and Wales has increased by more than 41,000 people (a 92 per cent rise) and that England and Wales have the highest imprisonment rate in western Europe: 147 people locked up per 100,000.

According to the figures, though, prison is poor at reducing reoffending: 46 per cent of adults are reconvicted within one year of release; for those serving sentences of less than 12 months, this increases to 60 per cent. Meanwhile, over two-thirds (68 per cent) of detained under-18s are reconvicted within a year of release.

Yet legislation enacted by the government, guidelines set by the Sentencing Council and decisions by the judiciary have simply increased sentences and tariffs. Sentencing now is a mechanical numbers game, with a much reduced role for judicial discretion and personal circumstances.

The traffic has all been upwards: longer sentences for more offenders. It is ironic that, in the name of cost savings, we digitalise, we close courts, we reduce legal aid rates, and yet we allow the spiralling cost of prisons to remain unchecked.

At some point, this has to stop. Logic and reason will have their day again. It will not happen by accident, though. Sentencing policy is part of the wider battle about the type of society that we want to live in.

Defence lawyers – indeed, all legal aid lawyers – have been part of that fight for decades. It is just a new chapter in the battle – but perhaps with more at stake than ever before.

This article first appeared in Legal Action Group in April 2017.

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