Courts urged to consider fewer short jail terms

Courts could soon be handing out more rehabilitative community sentences, rather than sending people to jail for short terms, under radical new plans.

The Sentencing Council for England and Wales says judges and magistrates should think more about sentences that are proven to reform offenders.

The plans tell courts to think twice about jailing women because of the impact on children.

The plans, years in development, come amid a prison overcrowding crisis.

The council is the official body that advises all criminal judges and magistrates on how they should sentence criminals fairly and consistently, following rules set out by Parliament.

The new consultation covers the principle of choosing community sentences, such as unpaid work or drug treatment programmes, or prison.

For almost 30 years the trend in sentencing has meant that more criminals have been sent to jail and for longer periods.

However, academic studies show that community sentences do more good in rehabilitating low-level offenders than prison.

In the major consultation, the council argues that if judges and magistrates conclude that an offender potentially deserves to be jailed, they must first pause and consider if a community order would actually be more effective at achieving rehabilitation, one of the key purposes of sentencing.

"Increasing academic research has covered the importance of rehabilitation in reducing reoffending," says the council.

"The Council believes it is important to reflect the findings."

The document suggests that judges need to take extra care in assessing the lives of offenders from specific backgrounds including young adults, women, people with dependants, people who are transgender, ethnic minorities or people with addictions, learning disabilities or mental disorders.

Crucially, before judges jail a woman, the council says they must consider the harm that could be caused to a pregnant woman's unborn child.

"A custodial sentence may become disproportionate to achieving the purposes of sentencing where there would be an impact on dependants, including on unborn children where the offender is pregnant," says the council.

"Courts should avoid the possibility of an offender giving birth in prison unless the imposition of a custodial sentence is unavoidable."

That highly significant guidance comes after the death in 2019 of a baby whose mother went into labour unaided in a cell. The latest figures show there had been 196 pregnant women in jail in the year to April 2023, 44 of whom gave birth in custody.

The proposals also tell judges for the first time to consider whether older women who commit crimes may be experiencing changes in their mental health caused by the menopause.

A detailed technical assessment of the impact the proposals could have on prisons suggests that if the package goes ahead, the number of offenders serving short sentences, typically meaning a year or less, would fall.

"Regarding young adult and female offenders, the additional considerations highlighted for these groups are hoped to lead to even greater impacts for these groups," it says,

Sentencing Council chairman, Lord Justice Davis, said the existing guidelines were among the most important in use.

"The revised guideline updates and extends the current guidance," he said.

"It reflects new information and research in relation to young adult and female offenders and findings from research on the effectiveness of sentencing."

Tom Franklin, head of the Magistrates Association, said it welcomed the "robust emphasis on alternatives to custody".

"Magistrates want effective community sentences and more information about their impact on the people who are given them," he said.

The consultation runs until 21 February next year on the Sentencing Council's website.

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