Magistrates Association Seminar Series
Contents
Magistrates Association Seminar Series .................................................................................... 1
Seminar 2: “Is there a place for short term custody?” Manchester University 6 th July 2011
................................................................................................................................................ 1
Session One: Is short term custody needed as a sentencing option? ....................................... 2
Judge Tony Hammond ........................................................................................................... 2
Anita Dockley ......................................................................................................................... 4
Question and Answer............................................................................................................. 5
Session 2: Can rehabilitation be achieved through short term sentences ................................ 5
Janina Miklaszewicz ............................................................................................................... 5
Dr. Hannah Quirk ................................................................................................................... 6
Question and Answer............................................................................................................. 8
Session 3: Are there alternatives to short term custody? ........................................................ 8
Dr. Penny Darbyshire: ........................................................................................................... 8
Dr. Bill Hebenton .................................................................................................................... 9
Seminar Conclusion and Round up By John Thornhill ............................................................. 10
Seminar 2: “Is there a place for short term custody?” Manchester University
6th July 2011
The second in a 3 seminar series entitled “Magistrates in the 21 st Century” took place at
Manchester University on the 6th July 2011. The title of the second seminar was “Is there a
place for short term custody?”
On the pages that follow you can access a report on the second seminar.
The presentation is split into 4 sessions of lectures with one introductory and closing
session. The seminar series is a collaboration between the Magistrates Association and
scholars in the field of Law and Criminal Justice.
The Magistrates Association is a membership organisation that supports magistrates in
dispensing justice fairly and efficiently within their courts, and works to promote confidence
in the magistrates' courts system.
To attend the seminars magistrates were asked to write a short paper (500 words) on what
they saw as the key challenges and opportunities for the magistrates’ court in the
21st.papers are all available online at
http://www.keele.ac.uk/risocsci/newsandevents/magistratesseminarseries/papersandcom
ments/
The day was split into 3 sessions each with a talk given by academics in their relevant field
followed by a discussion and question and answer session. There were some very lively
debates with strong opinions from the magistrates who really tested and probed the
experts.
This second seminar was hosted by Manchester University School of Law. Legal education
has been provided at Manchester since 1872 and the highest standards of legal studies have
been maintained over the years. The School of law has 70 academic staff and received 5A
rating in the 1996 and 2001 RAE and in 2008 the research assessment exercise recognised
that over 50% of its research is internationally excellent and world leading.
The seminar was moderated by Prof. David Gadd, Director of the Centre for Criminology and
Criminal Justice, and organised by Emily Smith, Teaching Assistant in the School of Law and
Maureen Barlow, Clerical Assistant.
The three sessions were as follows:
Session One — is short term custody needed as a sentencing option?
Session Two — can rehabilitation be achieved through short term custody?
Session Three — are there alternatives to short term custody?
Session One: Is short term custody needed as a sentencing option?
Judge Tony Hammond
The first session was given by Judge Tony Hammond. Judge Hammond was sworn in as a
full-time judge in 1986. Judge Anthony Hammond was the longest-serving judge in the
north-west region and was renowned for his tutoring on the Criminal Justice Act 2003. Tony
is now retired, and has joined the Parole Board.
Judge Hammond opened the seminar with a discussion of whether short term sentences
were a necessary tool in a magistrate’s armoury. Judge Hammond explained that there
were currently debates in penology about short term sentences but that the dominant
official arguments are the fiscal and political constraints of the Ministry of Justice, the
availability of legal aid and its affordability. He then related this to his experience as a
crown court judge and his experience with sentencing decisions.
Judge Hammond stressed that, like all justices (magistrates, district and crown) he had never
sent anyone to prison that did not deserve it, and this was always the starting point for his
opinions on the appropriate sentences. His next point in terms of sentencing seriousness
was to assess whether custody could be given for a sentence of less than 12 months so as to
enable him to suspend the sentence with requirements attached.
Judges did not do this because it is the cheaper option. They did it because in their collective
experience these sentences are rarely the subject of breach proceedings. They usually work.
The offence has been marked with imprisonment so the public and friends and family of the
defendant and the victim know he deserves prison and he can pay back in a more
productive way whilst at liberty.
His approach, like many justices, was that prison was a sentence of last resort, but that it
was still crucial in providing a deterrent. Judge Hammond also touched on the issue of
sentencing reductions for early pleas. He was broadly in favour of this approach as it saved
the victims from reliving the trauma over again in court and believed that reductions could
be increased upto 50% discount if the defendant pleads guilty when questioned by Police.
He then talked about his experiences with the Parole Board and the OASys reports he had
had to read when dealing with offenders in prison. An OASys report is a risk assessment
that tells the board the likelihood of reoffending by the offender. Judge Hammond said that
he received a 48 page close typed document that in the end boiled down to the % chance
that the offender would reoffend, the problem with this report was that it was based on a
typical offender and not necessarily solely on the subjective likelihood that this particular
offender would reoffend.
Coming back to the question of short sentences Judge Hammond explained how he had
asked a colleague at the Parole Board whether short sentences were necessary, and he
replied “Yes. And that is a short sentence!”
Judge Hammond explained how it was tempting but dangerous to generalise about
sentencing from media reported cases. In his experience of 30 years as a judge and 50 years
in the legal profession, prison is the last resort but for some crimes and some criminals
prison, even for a short time, is an essential weapon in the judicial armoury.
Going back to his early example Judge Hammond stated that “As Professor McWilliam said
in answer to the question do we need to have the option of short sentences; the answer is
“yes” and “yes” is a short sentence.”
Anita Dockley
Anita is research director of the Howard League for Penal Reform. She is responsible for
developing the charity’s research capacity, forging links with academics and universities,
funders and partner organisations. Her own research interests include suicide and self-harm
in prisons, women in prison and order and control in the prison environment. Anita spoke
on the subject of ‘The reality of short term prison sentences’.
Anita introduced research by the Howard League for Penal Reform conducted by Dr Julie
Trebilcock. The report was commissioned by the Howard League and the Prison Governors
Association over concerns about short sentences. The research was a collaborative effort
employing qualitative research methods, interviews with current offenders in the prison
system and prison staff. You can obtain a copy of the report by clicking on the following link
http://www.howardleague.org/1388/
The researchers interviewed 44 prisoners (aged 21-67) and 25 prison staff. There was also a
short online survey that was undertaken by other stake holders (81% of which disagreed
with short sentences). It is estimated by the National Audit Office that short term prison
sentences cost the exchequer between £7-10 billion per annum. The majority of those
offenders sampled were serving a sentence of below 6 months and were split into 2 groups,
first timers who believed they would never be coming back, and revolving door prisoners
who believed it was inevitable that they would be coming back.
The reality of the short sentence in prison is one of boredom, with prisoners having nothing
to do. There were courses available within the prison but due to the waiting times most of
the offenders would have served their sentence before they were eligible for entry to the
course. The performance management culture within the prison was not geared towards
short term prisoners and so prison officers got little credit for providing course for short
term prisoners.
Prison staff felt they could not help short term prisoners as there wasn’t enough time, the
extra services to housing and benefit advice need to be delivered where the offender will
relocate after the sentence, and there wasn’t enough information for the staff to be able to
do this.
On the whole prisoners expressed a preference for short sentences over community orders
as they felt community orders were harder to negotiate. There was a unanimous negative
view about hostels.
Question and Answer
There then followed an interactive question and answer session from the two speakers. A
number of inconsistencies in approach between different geographical areas were raised
particularly in relation to where short term prisoners serve their sentences. In some
locations these prisoners could be mixed with Cat A and B prisoners which everyone agreed
was a negative.
There were a number of novel and interesting approaches being tried across the country in
terms of alternatives to prison, however as the Howard League found in their research, such
programmes are inevitably short term and suffer from lack of funding in the long term. This
creates long backlogs that mean short term prisoners do not get the opportunity to
participate.
There was general agreement that The Probation Service needs to do more to promote its
work. Trafford based Richard Monkhouse JP said that the media had a part to play here in
promoting positive message and avoiding phrases like ‘walked free from court’.
Session 2: Can rehabilitation be achieved through short term
sentences
Janina Miklaszewicz
Janina is Probation Manager at HMP Styal in Cheshire. She has worked at HMP Styal for
almost eight years as both practitioner and manager. Prior to that she worked as a
Probation Officer in the community in a variety of roles including a long period delivering
accredited programmes and as a trainer. Janina’s presentation was entitled ‘In, Out and
shake it all about’.
Janina’s presentation was a lively interactive session asking members of the audience to
remember what they have been doing for the last 7 weeks.
7 weeks is the average time that a prisoner will serve in Styal prison, however they also
house serious violent, and persistent offenders, some of whom are serving a whole life
tariff.
In that time probation officials have to complete numerous forms and stage reviews of each
prisoner, too many to list here. Suffice it to say that at the 7 week release stage the
offender is likely just to have finished completing all the pre-prison forms, risk assessments,
monitoring forms and questionnaires.
The vision Janina wanted to impress upon magistrates was that for the professional
offender managers the process is long, complex and drawn out and unlikely to have made
any inroads into offending behaviour in such short sentences.
For the offender the experience is one likely to be filled with incredible boredom, nothing to
do as there are no courses that will be available or provide anything in such a short period
of time. As Janina said it is amazing how interesting a smear test becomes in a prison as an
opportunity to do something.
Janina’s vision for the future was for a new type of approach — a hybrid of prison and
probation or a ‘virtual prison’ where attendance is required every day at a centre,
monitored by electronic tag, plus home curfew in the evenings.
Dr. Hannah Quirk
Hannah was Senior Researcher at the Legal Services Research Centre (the research unit of
the Legal Services Commission), and as a Case Review Manager at the Criminal Cases Review
Commission, investigating claims of wrongful conviction and sentence. She is a member of
the Independent Monitoring Board and has been a Council of Europe Expert, delivering
training on human rights for judge candidates. Hannah is currently a lecturer at Manchester
University Law School. Hannah addressed the subject of the Prison Governor’s Association’s
proposal on short term custody.
Hannah Quirk welcomed the chance to speak with sentencers. All too often academics and
practitioners operate separately — this was a good opportunity to step back and ask why
we do what we do, or why we think what we think.
Dr Quirk highlighted some of the historical milestones in the development of rehabilitation
which got its first formulation from the social Darwinist theories of the mid 18 th-19th
century. By the early 20th century the reformation of prisoners became the dominant ethos
of prison at the expense of punishment. However late modernity saw a dual resurgence and
retrenchment of punishment from through ‘nothing works’ to ‘prison works’ to the current
‘rehabilitation revolution’.
The Criminal Justice Act 2003 sets out the current policy on sentencing principle which
includes a desire to punish, reduce crime, rehabilitate, protect the public and making
reparation by offenders. These policy principals have been described by Ashworth as a
‘law that seems to embody the worst of “pick-and-mix” sentencing’ (2010:77)1
Dr Quirk then gave a précis of the current research and statistics on short term sentencing.
In 2009 In 2009 1.4 million convicted offenders sentenced. 50,442 people were jailed for <6
months (about 40% of the total entries into prison). And 64,529 were given short sentences
of less than 12 months (64% of offenders sentenced to immediate custody; 5% of the total
sentenced population).
In the current system, highly prolific offenders (committing relatively low level offences) are
given multiple short custodial sentences which do not address rehabilitative needs — so the
group for which most could probably be achieved get the least rehabilitative input.
The reconviction rates for adults discharged from custody are higher (49%) than for those
given community sentences (37%). The highest are for those released from < 12 months
custody (61% within 1 year) This partly reflects the prolific offending history of this short
sentence group.
Dr Quirk then explained some of the benefits of utilising a rehabilitation approach when
sentencers are considering a short term sentence. The evidence suggests that particular
gains can be made by focusing strategies on prolific offenders because this group places the
greatest demand on the system, causes the greatest costs to victims and wider society, and
is typically dealt with through short custodial sentences where there is limited scope for
intervention. In 2008-09 cost of looking after short sentenced prisoners, excluding their
education and healthcare needs = £286 million.
Dr Quirk then explained that the economic and social costs of crime are far greater than
those costs which offenders place on public services. Focusing on rehabilitation could
generate significant benefits to society through: fewer victims of crime, less damage and
destruction of property, more offenders becoming productive members of society and cost
savings through reduction in demand for services, such as the criminal justice system, and
increases in taxable earnings.
Dr Quirk then outlined the finding of the Scottish Centre for Crime and Justice Research
2010 study into the comparative experience of short term sentences and community
orders2 which found that overwhelmingly most people serving short sentences had a serious
alcohol or drug problem.
1
Sentencing and Criminal Justice, Andrew Ashworth 2010
http://www.sccjr.ac.uk/pubs/User-Views-of-Punishment-The-comparative-experience-of-short-term-prisonsentences-and-communitybased-punishments/284
2
Question and Answer
In discussion, it was pointed out that in sentencing offenders, sentencers are following the
Sentencing Council’s guidelines and so, without a change to the guidelines, the existing
situation would not be changed.
What was required, it was felt, was a genuine alternative for some of the people currently
sentenced to short term custody — and there was a good deal of interest in Janina’s
proposal.
Session 3: Are there alternatives to short term custody?
Dr. Penny Darbyshire:
Penny is Reader at Kingston University. Her research focuses on the English legal system and
criminal justice, especially judges, magistrates, magistrates' clerks, juries, and plea
bargaining. Penny has just completed several years of observational research into judges of
all types at every level of the English legal system and her findings will be published as a
book this October, Sitting in Judgment: the working lives of judges (Hart).
Dr Darbyshire’s presentation focused on 3 interlinked themes; the importance of the
magistracy, sentencing discounts and alternatives for alcohol and drug related offenders. Dr
Darbyshire started by outlining the importance of the magistracy in England and Wales.
There are approximately 30,000 magistrates handling roughly 95% of all criminal law
matters, however from the textbooks on criminal law you would not think so, as they are
preoccupied with judge and jury trials.
Over 90% of sentencing takes place in the magistrates’ court, and over half of the new
prison population each year is sent there by magistrates. Dr Darbyshire then sought to allay
the fears of replacement by permanent professional judges, stating there was no plot to
replace magistrates. In fact the number of magistrates has grown over the past few years,
their jurisdiction has grown and the number of district judge magistrate’s courts are
shrinking. This clearly evidences a desire to continue with the magistrates’ court.
Dr Darbyshire then outlined her research into plea bargaining and sentence reductions.
Sentence reductions offend against traditional notions of fairness, they destroy the theory
of just deserts, that the offender is sentenced to a punishment that fits, or is
commensurate, with the crime. Sentence reductions are also hypocritical in that they
punish those who exercise the right to trial. Since this is supposed to be a key human right
and has a supposed centre place in our judicial system it is hypocritical to punish someone
up-to 50% extra on the sentence because they have the temerity to choose to exercise that
right.
Sentence reductions are unnecessary as historically they were not given in magistrates’
court, yet this did not significantly alter the guilty plea rate. Furthermore like plea bargains
they incentivise the guilty plea and research is available that shows that some people will
plead guilty to offences they did not commit through fear of a heavier sentence.
Dr Darbyshire then discussed the role of alcohol in offending behaviour and sentencing
decisions and discussed alternative punishments for those with alcohol and drug problems.
Two Drug courts were introduced in 2004 as an alternative for drug dependent offenders. A
judge is in charge of the process and reviews the cases every 6 weeks, offenders are drug
tested every 2 weeks and are treated to a mixture of tough but caring approach. Research
by the Ministry of Justice 1/11 found that the drug courts were useful in enhancing the self
esteem of offenders, providing them with goals and making offenders accountable.
However it was believed that the ability to prevent reoffending was limited.
Another diversionary sentence for alcohol related offenders was the Drink Banning Order
(DBO) introduced in 2004 which could prevent offenders from buying alcohol or entering
alcohol related premises. Furthermore Drug Treatment Orders (DTO’s) and Drug
Intervention programmes were available to address an offender’s substance abuse
problems.
Such court - or conditional caution - enforced treatment programmes were
estimated by the Home Office to have prevented up-to 680,000 crimes per year, although
this figure may be smaller as some offenders may have voluntarily sought treatment
without any official intervention.
Dr Darbyshire also emphasised the point that alcohol and drug misuse is a factor in the civil
courts as well as the criminal courts with further significant financial implications.
Dr. Bill Hebenton
Bill worked with the Home Office and ACPO on the early approach to the policing of sexual
offenders in the community; and he completed the first evaluation for the Home Office of
the pilot areas for Multiagency Public Protection Panels in England and Wales. He has
written on the problems of developing adequate sentencing guidelines in England and
Wales. Bill’s presentation was on what the criminological research says about the role of
short term sentences.
Dr Hebenton introduced research that supported short term prison sentences as an option
for magistrates’. In deciding whether short term sentences are a good thing and should be
kept as an option we need to look at how we measure re-offending and the tip of the
iceberg problem and how we interpret the effectiveness of other community sanctions.
Dr Hebenton thought that the iceberg was a good analogy since ¾ of its mass was
undetectable on the surface; similarly offending rates are believed to mask substantial
offending behaviour that is not detected. According to Government Statistical Service
statistics the police received 17.3 million calls for service in 2009-10, 4.3 million of these
went on the national crime statistics database, 3.5 million were incidents of anti social
behaviour and a further 9.5 million were simply noted but not recorded on official crime
statistics.
Dr Hebenton then presented the results of three studies:



HO Offending & Crime & Justice survey (prevalence of offending in the general
population)
Edinburgh Study of Youth Transitions & Crime
PADS Peterborough Adolescent & Youth Development Study
According to the PADS survey 10 % of self-reported offenders at age 12-16 have a police
record, but less than 1 % of their crimes are police recorded, which amounted to about 1 in
every 140 self-reported crime being police recorded.
A survey by Farrington & Joliffe 20053 found that for every burglary conviction it was
estimated that a further 136 offences had been committed.
Given this amount of undetected and unreported crime Dr Hebenton then discussed how
short sentences could be supported in helping to reduce the number of criminal offences
occurring. Dr Hebenton asked whether an extra month on the end of a 12 month custodial
sentence would reduce the crime rate. His research was based on figures in the period JanMarch 2008 and involved examining a count of the offences committed by those released
from prison and resulting in a conviction and some estimation of the number committed by
them but not resulting in a conviction.
Between Jan-March 2008 10,251 prisoners were released, after 12 months on average each
inmate was convicted of a further 3 offences, 11% of those studied had committed an
offence within one month of being released. If this was applied annually (41,004 offenders
released) then a further one month in custody 13,892 offences would be “saved” (i.e not
committed).
Seminar Conclusion and Round up By John Thornhill
John Thornhill (Chairman of the Magistrates Association) led the final session to draw out
some conclusions and recommendations for the Association.
In summary, the recommendations to be taken forward from the seminar were:
1. continue the academic/practitioner dialogue
3
Farrington, D. P. & Jolliffe, D. (2005) Crime and Justice in England and Wales, 1981 – 99. In Crime and
Punishment in Western Countries. Michael Tonry & David P. Farrington (Eds.). University of Chicago Press. (pp.
41 - 82).
2. strengthen probation-sentencer liaison — using in depth liaison as well as a
variety of creative ways of disseminating information
3. seek greater clarity on the use of sentencing guidelines and what is meant by
‘in the interests of justice’
4. develop the idea of a hybrid sentence between prison and probation, the
‘virtual prison’
5. pilot a form of IAC for women offenders, perhaps in HMP Styal
6. develop the idea of a separate estate for those sentenced to short term
custody so that bespoke accommodation and services can be provided
7. develop ways in which there can be more flexibility in the delivery of
community sentences
Magistrates Association Fellow Adam Snow was then introduced to the group. Adam is a
doctoral candidate at Keele University examining the role of fixed penalties and the impact
on the future of the magistrates’ court. Adam outlined some of the key areas of his
research and asked magistrates and members of the association to participate in the
research as interviews and focus groups were looking to be held so that magistrates’ voices
are heard in the debate. Anyone wishing to know more or to be involved in the study can
contact Adam at a.j.snow@ilpj.keele.ac.uk