More than a short-term fix

How will the new minister responsible for prisons slow a penal arms race that simply has become too expensive to sustain?

By Jon Silverman

Crispin Blunt’s pre-Westminster life as a soldier may stand him in good stead when the financial flak starts hitting his department, the Ministry of Justice. In a pared-down ministerial structure (an early object lesson in cost saving?), Mr Blunt, the Parliamentary Under-Secretary of State for Justice, has been given responsibility for prisons and probation, as well as criminal law and sentencing; “the whole train set,” in the words of a minister in a previous Conservative administration. Meaning? That only someone whose remit includes the courts has a chance of turning off the judicial spigot which is pouring offenders into the penal system at a cost which the country can no longer afford.

So, let’s get down to brass tacks. On any sensible reading, a 25 per cent reduction in spending by the Ministry of Justice means that the correctional process, in its present form, simply cannot survive. Despite misgivings early in his premiership, Gordon Brown bankrolled a £4 billion prison-building programme that will provide capacity for some 96,000 inmates by 2014. As the all-party Justice Committee noted caustically earlier this year, the money has been committed “without any obvious cost-benefit analysis of alternative options”. Quite. Most those locked up are on short-term sentences. Given that most then re-offend within two years of their release, the cost to the country of their criminality is between £7 billion and £10 billion annually, according to the National Audit Office, in a report published last March. (One ward in Lambeth, south London, costs the prison service £12.6 million to accommodate its recidivists.)

Add to all that red ink the supervision of thousands of other offenders given non-custodial sentences and the UK is spending a higher proportion of its GDP - 2.5 per cent - on criminal justice than any of its European partners or the United States (source: Prison Reform Trust, 2009).

This is not news to those responsible for shaping policy, even if the warning sirens are reaching vuvuzela levels. In 2007, the then government’s favourite troubleshooter, Lord Carter, examined the supply and demand equation and proposed a twin-track solution: the building of new Titan prisons to tackle the latter and a permanent sentencing commission for England and Wales to control the former.

In resources terms, 2007 seems a halcyon age and the costly Titan option has been abandoned. But the permanent commission, called the Sentencing Council, came into being in April this year with the declared intention of creating greater consistency and clarity around sentencing and the undeclared one of persuading judges to pass fewer and shorter prison sentences.

Although its members have barely got their feet under the table, the scale of the financial crisis means their task looks as promising as recruiting a chain of volunteers with buckets to confront a tsunami. Pessimists feel the game was lost when the outgoing administration bowed to pressure by reserving a majority of seats on the council, eight out of 14, for judicial members, and changing the wording of the enabling legislation, the Coroners and Justice Act, 2009, to give the courts more leeway in determining sentences than originally planned. But sound though these criticisms are, they fail to address the real issue which, put simply, is that the penal arms race fuelled by both New Labour and the Conservatives with wilful abandon since the early 1990s has become too expensive to sustain.

“Nobody has grasped how much less will have to happen in offender management if it takes a cut of 25 per cent or more,” is the assessment of someone who knows whereof he speaks. “And it certainly won’t be achieved by efficiency savings and cheeseparing.” With the dreaded departmental spending review still a few months away, it’s a fair bet that the Ministry of Justice doesn’t have much idea either or, if it does, doesn’t want to say. It couldn’t even provide a breakdown of the £325 million in savings it has been asked to make already, apart from some obligatory muttering about discretionary spending on consultants and travel, and a review of IT projects. But when the full import of the cashflow crisis in crime and justice becomes known, the coalition will be faced with either an acutely painful dilemma or a once-in-a generation opportunity to do things differently, depending on your perspective.

That opportunity can only be helped by having a former Chancellor as Justice Secretary and there’s early promise in Ken Clarke’s decision to set up a review of sentencing to report in October. So perhaps consideration will now be given to proposals that already exist for a sentencing body - call it commission or council or whatever - with real teeth that does more than just issue guidance. Instead it could become the catalyst for a coherent and robust strategy to scale down the criminal justice behemoth. And, crucially, its views have to have the force of legislation behind them. Quite reasonably, the judges have responded in the past to “messages” from politicians – such as the plea in 2007 from the then Home Secretary, John Reid, to use custody more sparingly – by saying: “We are merely implementing the laws which Parliament has passed. If you want us to do something different, the law has to be changed.”

To be sure, that will require a public renunciation of a risk-averse psychosis that has been responsible for longer sentences, more recalls to prison for breaches of licence and more people sent to jail for breaking the terms of their community orders. Beyond that, what’s needed is an imaginative leap in penal thinking that no administration in recent history has dared to contemplate. With the public purse threadbare, necessity might just be the mother of political invention.

28 June 2010

Jon Silverman. Professor of media and criminal justice at the University of Bedfordshire,