17 September 2020
A different approach.
By Robert Kilconner
The Government’s new white paper on sentencing reform is quite a ragbag. In many respects the agenda is to increase punishment, with longer minimum sentences for rape and the prospect of life sentences for death by dangerous driving where the driver was speeding or looking at a mobile phone. Sometimes that will be right but in a justice system which hopefully looks at each case on its merit one would be sorry to see the options of judges restricted by too many artificial rules. There are places too where the changes may have unexpected effects. If it is to be the case that criminals given 4 to 7 years for serious offences will not become eligible for early relief until they have served two thirds of the sentences (as opposed to one half), might not a judge who feels that the position should be reviewed after three years be tempted to impose a five year rather than a six-year term?
But it is the more liberal side of the proposals which would give rise to greater difficulty with the shortening of the period over which convictions have to be disclosed. Offenders sentenced to 12 months who do not reoffend within 12 months of release will no longer have to disclose convictions save in exceptional cases. Nor will offenders sentenced to 4 years imprisonment who do not reoffend within the following four years.
The problem with all this is that there is an inherent conflict between the right of the public to know and the practical difficulties which the individual concerned will suffer in re-establishing himself or herself in the face of a criminal record. Were it not for those difficulties one would prefer that people faced up to what they had done, were frank about it, and satisfied employers and landlords with their assurances that they had reformed. The world would be a better place if everyone could do that but alas they cannot. Disclosure of a criminal past, even by the reformed, can lead to long-term unemployment, thus fuelling the loop towards reoffending.
What then can be done? Leaving aside any moral aspect, the hiding of information loses the opportunity to steer the offender away from further temptation: more disclosure on the other hand means that many who would never offend again are prevented from living a normal life. No wonder the politicians find it difficult to lay down a satisfactory general rule.
Perhaps, though, that is the rub. If the public needs to know the history of those who are likely to reoffend but not those who have generally reformed, surely it is there that the line should be drawn. Rather than having an arbitrary rule, then, it would be better for decisions to be made on a case by case basis by some form of tribunal run by magistrates or the probation service. Not only would a ruling that a particular offender was unlikely to reoffend mean that his or her conviction would no longer be disclosed but there would be the added advantage that the reformed criminal who wished to disclose could produce evidence that a tribunal did not think there was any risk of recidivism. Ex-offenders who can stand tall and admit their history are likely to be particularly useful members of society.
That would be a far more sensible way of dealing with the whole question but it would of course be expensive. Courts and tribunals do not come free and the probation service is under great pressure at the moment. Those making the decisions would need to be trained and that comes expensive too.
We are continually being told that as we emerge from the pandemic many traditional jobs will have disappeared and there will be high unemployment. That means that there is an excess of labour, and if that excess is to be permanent, one way in which it can be used is to increase the human involvement in decisions of this sort. There are other reasons too why now might be the moment to make this move. Those making decisions would need to be trained but training and education should soon be easier and cheaper as online courses, originally designed to fit the pandemic, prove effective and remain in force. Well perhaps it would work or perhaps not but it is surely worth a pilot scheme to test the water.