Mike Amesbury, the former Labour MP who has been sent to prison for ten weeks for punching a constituent in the street, is rather unlucky: the truth is that very few first-time offenders get locked up. It’s probable that those convicted of similar offences in the future may still be imprisoned. But the use of short prison sentences for non-violent offences, however numerous and persistent, are under threat.
Very few first-time offenders get sent to prison
David Gauke’s Sentencing Review, which is due to be published in full over the coming months, is likely to make it harder for magistrates to hand out short jail sentences. Shabana Mahmood, the Justice Secretary, appears to share Gauke’s view: Mahmood reportedly wants to restrict the use of sentences of less than 12 months to those convicted of violent, sexual or terrorism offences. But this aversion to sending people to prison is a mistake.
When I ran the Prison Service, as I did for seven years between 1998 and 2007, I was often told that many of those we were locking up did not need to be imprisoned. General Sir David Ramsbotham, the distinguished Chief Inspector of Prisons, told me persistently that there were 20,000 such prisoners, all of whom had been sent to prison when a community penalty might have been more appropriate to their offending and more effective. I’m afraid that I searched fruitlessly for those individuals. Once or twice, David would bring me details of an individual whom he had met on a prison visit and who had told the Chief Inspector that he had been sent down for a minor offence. But in every case that I followed up I found the nature or the quantity of that person’s offending to be substantially more serious than had been admitted.
When Michael Gove, now the editor of this publication, became Justice Secretary in 2015, I had long resigned from the Prison Service, but he sometimes sought my advice. When he was urged by The Prison Governors Association to abolish short sentences, I offered to carry out some quick and dirty research. I looked at the criminal history of all those sentenced to six months or less and who arrived in one week at a large northern prison which served a number of courts. There were hundreds of prisoners in the sample and their average age was thirty. All of the individuals had a history of offending. Most had offended persistently and over many years. Non-custodial punishments had been tried before but to no avail: these prisoners had previously been found guilty of an average of 50 separate offences and had been convicted at court on an average of 24 previous occasions.
That group of prisoners was not unrepresentative. Indeed, an excellent Civitas paper which analysed the prison population at around the same time revealed that it was more likely for a prisoner to have 46 or more convictions than to be a first-time offender and that magistrates virtually never committed a first-time offender to custody. In 2017, of the 249,000 individuals they sent to jail, only 521 had no previous convictions.
There is a particular myth about the number of people in jail for driving related offences. The reality is that the number is so small as to be irrelevant. In 2016, there were 168,000 convictions for speeding, 133,000 convictions for driving without insurance, 78,000 convictions of drivers who refused to identify themselves and 24,000 convictions for careless driving (typically using a mobile phone while driving). Of these, 403,000 individuals just ten were sent to prison.
The reality is that most offenders have to commit rather a lot of crime and fail the opportunity offered by multiple community punishments before they end up inside.
When persistent offenders – nearly all of them male – are finally imprisoned it’s not because magistrates think that a brief spell in prison will do them much good. Short sentences are extremely unlikely to have a positive effect on an offender. But – and I speak here as someone who was desperate to make prisons more constructive, more rehabilitative and more decent places – we don’t use prison only for rehabilitative purposes, and eventually the needs of retribution necessitate the deprivation of liberty. Taking that rarely used option away would be dangerous and, in any case, would make barely any difference to the size of the prison population.
Magistrates who see offenders and their victims need to be listened to here. In their evidence to the Sentencing Review, the Magistrates Association point out the failure rate of non-custodial penalties illustrating, for example, that fines – the starting point for many offenders’ criminal careers – are routinely ignored. Half of all fines imposed in 2023 were unpaid twelve months later and the value of fines owed to the Courts has now passed £1.5 billion. As they told the Commission: “Public confidence in the justice system relies on an understanding that those who commit offences will be punished… If offenders refuse to engage with community alternatives, immediate custody may be the only way to ensure punishment.”
If Mahmood ignores their well-argued advice I suspect that there will be numerous justified resignations.
The reality is that if we want to restrain the growth of the prison population then we must address the length of longer sentences which have grown steadily and significantly over recent decades. That might be politically challenging. But, as I have urged numerous Secretaries of State, nothing else will work. Short sentences should be left alone.
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