January 2021 — Chris Philp MP
Minutes of the meeting of the Virtual Meeting of the All-Party Group on Penal Affairs, held on 26 January 2021
Chris Philp MP
Lord Ramsbotham (in the chair)
Baroness Healy of Primrose Hill
Baroness Masham of Ilton
Lord Ramsbotham welcomed everyone to the meeting and introduced the speaker, Chris Philp MP, from the Ministry of Justice, to discuss the Sentencing White Paper, which had come out three months ago. Members would be very interested to hear what he had to say.
Chris Philp MP: ‘We published the Sentencing White Paper back in about September, as a precursor to legislation in due course. It’s a great pleasure to be here to talk about some of the principles outlined in the White Paper. I should start by mentioning a caveat, which is that I am the Minister for Courts and Sentencing at the Ministry of Justice (MoJ). My Colleague Lucy Fraser is the Minister for Prisons and Probation. So I will be on slightly firmer ground on the courts and sentencing topics. There are officials on line who can come in as required if questions stray too far beyond my own portfolio.
Let me start by outlining the principles underlying the White Paper. There are two principal governing thoughts which lie behind the proposals we may talk about in a few minutes. The first of those is about protecting the public and improving public confidence in the justice system, particularly in relation to the most serious offenders. That means the variety of measures which make sure that those people who commit very serious offences serve more of their sentences and are kept off the street for a longer period of time. That is, we think, important in order to maintain public confidence in the justice system. As both an MP and a Justice Minister I get a lot of correspondence asking about the apparent discrepancy between the sentence a judge hands down and the time served in prison. We all understand that, because we work in the sector, but very often the public don’t. The Government took the view that for the most serious offences there is a justification to spend a longer period of that sentence in prison, partly to build public confidence and also clearly because public protection is served by those measures because if someone is incarcerated, by definition they cannot cause any harm to the public. We have done some of that already in the statutory instrument we laid about a year ago. There are various measures relating to terrorist offenders which have gone through the Commons and are being debated in the Lords this very week, all of which have that purpose of public protection in mind.
A second governing thought which is equally important, perhaps even more important, is to do with rehabilitation and with tackling the causes of offending. One of the things I am very conscious of is that short prison sentences are pretty ineffective, in the sense that the reoffending rates, when someone comes out of prison following a short sentence, are extremely high – I would go as far as to say shockingly high. Very often the offending is caused by drug addiction, alcohol addiction, or some kind of mental health problem. So we are very keen to strongly encourage the treatment of the underlying conditions which have caused the offending and encourage courts to use that to ensure that those conditions are treated, as an alternative to short custodial sentences. It is very important that judges retain discretion to make their own decisions, but we want to very strongly encourage that sense of rehabilitation and treatment. I will talk a little bit more about that later, in the context of community sentence treatment requirements, which are a key part of that. So in a nutshell, those are the two governing thoughts behind the Sentencing White Paper: public protection and public confidence, particularly in relation to the more serious offences; and rehabilitation, treatment and reducing re-offending in the area where that is appropriate.
Before I talk a little more about some of the detail that is behind that, I thought I would say a quick word about the court system, for which I am also responsible. Clearly coronavirus has had a very significant impact on a whole swathe of our national life, whether it is schools being closed down, hospital operations being cancelled or postponed, lockdowns, businesses suffering – all parts of our national life. This has been true across the world, and the court system has been no different. We had a period over the summer where crown court jury trials were suspended entirely, and it took until the autumn for them to start to get going in a covid-secure way. We have invested in this current financial year a quarter of a billion pounds in getting our court system covid-safe and back up and running in a way that does not endanger the health of all participants: witnesses, victims, defendants, barristers, solicitors, judges, court staff, everybody – a huge investment which is now paying dividends, in the sense that in the magistrates court for the last seven or eight months, since August, disposals have been exceeding receipts and the outstanding case-load is coming down. Even in the crown court with jury trials, which is much more difficult in that juries and epidemics don’t mix, in the week before Christmas for the first time we saw disposals exceeding receipts: the lines crossed. It has taken a huge amount of work but we’ve got there. That is obviously continuing. We have got video technology installed in 150 magistrates’ courts and 70 crown courts. Last week there were 20,000 hearings via technology across all jurisdictions. So we have got our system up and running in a safe way, but it has taken a huge investment. I wanted to mention that because I know many people have been concerned about court recovery after coronavirus.
If I may I would like to turn to the specifics of some of the measures that we have referred to in the Sentencing White Paper and for which we will in some cases be legislating in due course. I am going to start with those measures that touch on public protection and public confidence for more serious offenders. I am sure most of you here will recall we made a start on this a year ago with a statutory instrument which said that for people receiving a standard determinate sentence of more than seven years the automatic release at the half way point would be moved back from half way to two thirds. We thought that was appropriate for the public protection and public confidence reasons I mentioned. It is the intention in due course to go a bit further, in a thoughtful way, in relation to those people serving standard determinate sentences of between four and seven years, where there was a serious sexual offence, or a serious offence involving violence, for the same reason.
We also legislated last year in relation to terrorism. We laid an emergency bill in February of last year which ended automatic early release for terrorist offenders, to make sure that the Parole Board always had a look at terrorist offenders prior to their release, to ensure that they were not going to pose a danger to the public. We did that because, as I am sure that everyone knows, some offenders were automatically released without Parole Board supervision, without a Parole Board decision, and they went on to commit serious offences: the Fishmongers Hall attack, and an attack in Streatham. That was done on an emergency basis last year. It has been tested in the High Court and found to be lawful. We have also gone a bit further with the Counter-Terrorism Sentencing Bill which passed the Commons last June and I believe is coming to the Lords as we speak, which will make further provision for the most serious terrorist offences and provide for enhanced supervision of terrorist offenders. I believe the public expect nothing less when it comes to protection from the small number of very high-harm offenders.
Consequent to the two thirds release point measure that I mentioned, we are intending to make some changes to the way that life sentence tariffs are calculated – the discretionary life sentences I should say – so that the tariff is calculated from two thirds of the equivalent sentence rather than the half-way point, so that there is a degree of consistency there between those discretionary life sentences and the standard determinate sentences of over seven years. Those are important measures. We are also expanding a little the scope of offences that are eligible for a whole life order as a starting point. I say ‘starting point’ because of course judicial discretion still applies. We are including the pre-meditated murder of a child as an offence for which a whole-life order is a starting point because the pre-meditated murder of a child is such a horrendous and heinous offence. But that is of course just a starting point, and judges have the power to hand down a different sentence if they consider it appropriate, having regard to the particulars of any individual case.
In relation to youth offending, there are some changes to the sentencing arrangements, providing for substantial discounts to a regular sentence for people who are younger, aged 10-14 in particular. Where someone is say 17, the discount is a bit lower. In relation to adults aged between 18 and 25, we had quite a significant debate on this during the passage of the Counter-Terrorism and Sentencing Bill through the Commons and Committee. We debated at some length the questions around the rate at which the brain matures, and whether people who are aged between 18 and 25 are undergoing a maturation process and are capable of quite significant change during those years. One of the things the Committee considered was that judges already have discretion to take into account the maturity of offenders across those ages, and pre-sentence reports take into account the maturity of those young adult offenders. And so our feeling when we debated those points was that judges are able to take into account maturity and discount sentences if they feel it appropriate. That is best handled by judges using their existing discretion. So there is not a proposal in the White Paper to embed any further in statute a reform in that particular area.
That is a short summary of some of the measures designed to protect the public from the most serious offenders and to build public confidence in the justice system. The second area I wanted to discuss was this whole area concerned with trying to reduce re-offending, avoid short custodial sentences which we know are not very effective in many cases, and really try to address the underlying causes of offending, which very often are drug addiction, alcohol addiction, or mental health problems. My view is that treating those problems, which are essentially medical problems, is a preferable way of dealing with the situation to a short custodial sentence, while leaving judges with the discretion to use those where they see fit. We are not proposing to abolish short custodial sentences.
One area of work that I think is very important is problem-solving courts, where the courts take a deep interest in rehabilitation and in making sure that rehabilitation is followed through. I know we have tried this on and off in the past, with mixed results, but we think it’s worth trying it again. So we intend to pilot up to five courts in locations yet to be identified. The critical thing is that a single judge will oversee the whole process for any particular offender, so they can follow the offender through what we hope will be a rehabilitation process, often dealing with drug addiction, alcohol addiction or mental health issues. We expect at least one of those locations to be specifically for female offenders and we hope that will produce significant results. In terms of timetable we are hoping to get the first pilot court set up by December 2021 or at the very latest at the beginning of 2022. I think this is quite an exciting development and I really hope this can be made to work. If it does work, obviously the intention would be to significantly scale it up.
In some ways connected to problem-solving courts is trying to do more with our existing courts to get people into treatment instead of into short custodial sentences or other community disposals. One of the initiatives I am most keen to champion and to expand is the community sentence treatment requirement programme which has been running on a pilot basis for a couple of years now in some areas. I see this as a critical initiative and I really want to expand it. We know that a very high proportion of offenders who receive short custodial sentences of say three or six months have mental health, drug or alcohol issues: something like 50% or 60% have one or more of those essentially medical conditions. And yet very small proportions of offenders have treatment requirements handed down: 2%, 3% or 4%. It is quite clear to me that there are vast numbers of offenders who have these health problems and are not getting treated for them. So I would like to see community sentence treatment requirements (CSTRs) massively scaled up in order to get these people treated rather than incarcerated, or having some other form of community disposal which does not address the essentially medical problems which they have. We have MoJ funding for this current year to scale up CSTRs and the organisation of CSTRs, which includes in one of theprogramme sites – Plymouth – an assessor who is in the court to work with the defendants to identify their health needs at an early stage. Obviously liaison and diversion services exist in most places already. We are in the process of trying to get some more funding for the next financial year as well. In addition to that we are working with the Department of Health (DoH) to make sure the funding is there to actually provide the treatment. It is vital that magistrates and judges see that the treatment is available. You will have seen last week an announcement of £80 million to fund additional drug treatment places for prison-leavers and people on community sentences. That is fantastic news. In the NHS’s long term plan there is already funding to provide mental health treatment across a large part of the country for offenders over the next two or three years and I want to work with DoH colleagues to get that coverage up to 100% as quickly as we possibly can. So I would make a plea to anyone involved in the criminal justice system whether as a charity worker, a campaigner, a parliamentarian, a colleague in the MoJ, to do everything we can to promote and to expand these CSTRs; to encourage judges to use these disposals; to encourage the probation service to make sure they are included in pre-sentence reports. We need a huge collective effort to make sure that instead of just a few percent of offenders, every single offender with a health problem will get properly treated. Then we can really tackle the causes of offending, rather than simply trying to deal with the consequences afterwards.
There are various other measures which have similar purposes in mind which I am not going to go through in quite so much detail. I want to mention briefly the simplification of out of court disposals. There are currently six types of out-of-court disposals. We intend to simplify that too, and in areas where that has been trialled both the police and courts found it helpful. We hope that will encourage the use of out of court disposals where appropriate. We hope there will be an increased use of electronic monitoring. So for example increasing the curfew to a maximum of two years will encourage judges to use that as an alternative to short custodial sentences, and using GPS monitoring we think will help reduce re-offending particularly for people who have committed acquisitive offences, for example burglary and robbery and that kind of thing. We are hoping that when judges see how effective that is, it will lead to an increase in tagging as an alternative to short custodial sentences.
I mentioned pre-sentence reports (PSRs) in the context of CSTRs. In order to have to have a mental health, drug or alcohol treatment order you need to have a PSR to explain to the judge and the court what the treatment requirement is and what the health need is. We want to pilot the increased use of PSRs even before the plea in order to identify in a very early stage in the defendant’s journey where treatment might be appropriate. We are particularly interested in doing this for female offenders, for young adults aged 18-25, and for those on the cusp of custody – cases which could go either way. Obviously we would prefer it if the people concerned could be treated rather than incarcerated.
I am conscious that I have been speaking for longer than I said I would, so perhaps I can draw to a conclusion by saying that we do want to work with everybody with an interest in this area as we move towards legislation. As I said, there are two governing thoughts: public protection and public confidence when it comes to more serious offences; and reducing re-offending, treating the causes of re-offending and trying to keep people out of short prison sentences where it is appropriate. If we do those two things, not only will we discharge our very important duty to protect the public, which is one of the first duties of government, but we will also try and avoid re-offending and help people get their lives onto a different path, where they can become useful and valuable members of society rather than people who commit offences. We are looking forward to working with everyone here and many others in Parliament and beyond in the weeks and months and perhaps the years ahead.’
Lord Ramsbotham thanked Chris Philp MP for his presentation. He said that in his analysis of the Sentencing White Paper he had worked out that there were 8 manifesto commitments, 19 pieces of legislation, 8 pilots and 48 pledges and plans. £900 million would be needed to achieve the whole thing. He asked whether the MoJ thought it would get all those through.
Chris Philp MP responded that there had been a spending review quite recently in which the MoJ had received quite a significant budget increase for the next financial year, as there had been for the current year. Much of the extra spending commitment related to the prison estate, for which there was a clear commitment for improvement. The present financial position was much better than it had been a few years ago. It was important for public confidence that manifesto commitments were delivered upon.
Lord Ramsbotham referred to Mark Day (Clerk to the meeting) who would handle the questions.
Mark Day said that there had been several pre-prepared questions from the observers which he would read out. He asked that any additional questions be posted using the chat function.
John Bache from the Magistrates’ Association had asked what progress had been made in ensuring that alcohol treatment, drug rehabilitation, and mental health treatment requirements would be available in all Magistrates’ Courts across England and Wales. Would the Minister support mandatory training to remind all magistrates of the five purposes of sentencing (reduction of crime, reform and rehabilitation, protection of the public, reparation and punishment: not only punishment).
Chris Philp MP responded that he would like to see the rolling out of CSTRs as fast as possible. He was bidding for resources to achieve that, which was a personal priority. As regards training, he wanted to ensure that all magistrates were aware of those, and of the importance of pre-sentence reports. He would take that away as an action from the meeting. He also said he was working on the matter the questioner had raised some time previously, regarding retirement ages for magistrates.
Steve O’Connor from the MoJ added that funding had been secured to get mental health treatment requirements to half of the country by 2023-24. Additionally, with regard to the £80 million package secured to accelerate the drugs and alcohol treatment services, some of that funding would go on people who would connect the bench, the probation service and the treatment programmes together. On pre-sentence reports, the settlement received had been favourable to probation, and there were currently over 1,000 probation officers in training, which would help to decrease case-loads and enhance the capacity to deliver reports.
John Bache expressed satisfaction at the possible raising of the retirement age for magistrates. He was also very pleased to hear of progress with CSTRs. He wanted to stress the importance of the sentencer’s continued contact with the offender undergoing treatment. He was convinced that such benign oversight would reduce re-offending.
Lord Bradley welcomed the emphasis on community sentences especially in respect of mental health treatment. Did the Minister agree it would be more sensible not to invest in an extra 500 prison places for women and to use the money saved to roll out these new measures as soon as possible?
Chris Philp MP said that he did not see these things as mutually exclusive. The public needed protection from more serious offenders for whom custody was appropriate, so it was important to have enough places of the right quality.
Lord Bradley asked if the Minister was anticipating an extra 500 women offenders who would need those extra places.
Chris Philp MP said that there were no immediate proposals to make changes, although it was kept under consideration. He agreed this was an historical anomaly dating from a previous government.
Amy Randall from the MoJ added that this was recognised as a complex issue. However it should be remembered that many of those offenders posed a significant on-going risk of committing further violent or sexual offences. Over the past couple of years good progress had been made in improving opportunities for those offenders to move through the system towards release.
Bishop Rachel, Bishop to Prisons, said it was good to hear about CSTRs but she asked why there was no longer a strong focus on sentencing for women using Women’s Centres in the community which offered a holistic and trauma-informed approach.
Steve O’Connor (MoJ) answered that colleagues certainly recognised the role of Women’s Centres. It was understood that they were very important in providing support and continuity, which was why Ministers had distributed £2 million in the past few weeks to voluntary sector organisations working with women. The Concordat published at the weekend emphasised this, and the efforts of all were focused on limiting the number of women going into custody. One of the problem-solving courts would be devoted to women, and one area of the PSRs too.
Sir John Saunders (Parole Board) asked about the proposal that prisoners radicalised during the course of their sentence would not be released until the end of their sentence, or when the Parole Board said they were safe to be released. What test would the Parole Board be expected to apply? Would the Secretary of State need to prove that the prisoner presented a risk? What safeguards would be put in place to ensure a prisoner did not serve longer in prison simply because of their religious beliefs?
Chris Philp MP emphasised that the provisions did not relate to the prisoner’s religious beliefs but to the danger they might pose to the public. There was no suggestion that the prisoner should serve longer than the sentence the court had imposed. If a prisoner serving a determinate sentence became radicalised and was perceived as posing a danger to the public, their release became a matter to be determined by the Parole Board instead of being automatic at half or two thirds of sentence.
Amy Randall (MoJ) added that it was envisaged that this power would be used only in exceptional circumstances, in cases where serious harm to the public or a national security threat were possible. Secondly, this was not intended to be a power relating solely to the possibility of terrorist offences, but in any case where a serious risk to the public could be anticipated.
Zoe Billingham asked whether an assessment had been made of how many more people would be in prison if the proposed additional custodial sentences were subject to the two-thirds release rule, and therefore what the additional cost to the prison service would be, assuming offending levels stayed the same.
Amy Randall (MoJ) noted that those anticipated population figures, and the associated costs, were given in the impact assessment for the new proposals, which was available on-line.
Chris Philp MP acknowledged that there would be an upward impact on the prison forecast, but the view was that this was a reasonable step to take, to meet the objectives of public protection and public confidence already mentioned.
Juliet Lyon (Chair of the Independent Advisory Panel on Deaths in Custody) said that the panel welcome the focus on CSTRs and asked how soon this could be expedited to reduce the risks of deaths in custody.
Chris Philp MP responded that his team were working as hard as possible to expedite the roll-out, which included seeking more funding for the associated treatment services. Some had already been received, but the more people who campaigned for this the better.
John Samuels QC welcomed the proposal to pilot problem-solving courts, the idea for which he had first put forward twenty years previously and with which there had been some limited progress over the intervening years. The working group remained in existence but dormant. He asked whether the Minister would invite the group to set out its proposals for implementation.
Chris Philp MP congratulated John Samuels on his two decade prescience. He would be very open to ideas and lessons from previous initiatives.
Steve O’Connor said he would follow this up with John Samuels. He thought that this year, given the investment in probation officers, the CSTR money and the drug treatment money, there was an opportunity to tie together a number of initiatives.
Mark Day noted that there were more questions than there was time include, and he apologised to those left out.
Dr Rachel Pickering (co-chair of the BMA Forensic and Secure Environment’s committee) welcomed the move away from short prison sentences for those whose crimes were driven by addictions and homelessness. However she was aware that some homeless people and substance misusers benefited from the stability of a period of imprisonment where they were provided with shelter, food, clothing, and healthcare including drug therapy. She was concerned that moving away from short sentences without first introducing more & better community housing and drug & alcohol services would in fact be doing these people a significant disservice.
Chris Philp MP responded that an individual’s particular needs, including for housing, should be picked up in the PSR. He could not say more publicly but there would be some announcements in this area in the near future.
Pippa Goodfellow (Standing Committee for Youth Justice) asked whether a child who committed an offence and turned 18 prior to their trial, should be required to disclose their criminal record based on the disclosure period associated with the age at which they committed the offence rather than the date of conviction. This was particular relevant during the current period of significant delays.
Dilys Alam (MoJ) responded that it was true that 17-year-olds who turned 18 before sentencing were sentenced within the adult framework but the sentencing guidelines said that the sentence that would have applied in the youth court should be used as a starting point. Rehabilitation periods were related to the length of sentence, so if sentences were shorter those would be as well.
Chris Philp MP added that there was a proposal to shorten the rehabilitation period too.
Laurie Hunte (Barrow Cadbury Trust) asked about what was being done to understand the equalities impacts of individual measures.
Chris Philp MP responded that these would all be published when the Bill came forward, in due course.
Jenny Talbot (PRT) asked, given that the mental health treatment requirement had been available for many years, why the MoJ was still having to look for funding to make this available nationwide.
Chris Philp MP responded that part of the reason was the need to make sure there was sufficient capacity, given that NHS mental health funding had been under pressure in recent years. Significant amounts of funding had been made available over the last couple of years, however, and this had been put into the NHS five year plan. But as well as ensuring that treatment was available it was also a matter of putting the PSRs in place to ensure sentencers were aware of the options, and additionally using the assessors who would be part of the CSTR roll-out, who would seek to identify people with mental health needs at a fairly early stage in the process. Putting all these things together should bring the take-up, which had previously been very low (less than 1%), up to a much higher level.
Lord Ramsbotham thanked the Minister for his presentation and for answering questions, and the MoJ officials for joining in. He thanked all members and observers for attending, and Mark Day for handling the questions. Members of the group looked forward to contributing to the development of these proposals
 Of those in custody at June 2018 sentenced to 6 months or less and had a full OASys assessment: 68% had a drugs misuse need, 35% had an alcohol misuse need — https://www.gov.uk/government/statistics/identified-needs-of-offenders-in-custody-and-the-community-from-oasys
 This announcement was subsequently made on 29th January — https://www.gov.uk/government/news/70-million-to-keep-prison-leavers-off-the-streets-and-cut-crime