I had two great opportunities to explore ideas this week – giving a paper in Durham (splendid new Faculty building) and a few days later a very different paper in Oxford (Old Library, All Soul’s – contrasting venues!). In Durham, I chose to explore my thoughts on the meaning of ‘sentencing‘. Sentencing is often thought of simply as that which judges and magistrates do when they ‘send someone down’ (front-door sentencing). But the sentence pronounced in court bears little relation to the time actually served. Many prisoners will be out at half time (or even sooner on Home Detention Curfew – electronically monitored curfew). A few years ago the expression ’back door sentencing’ emerged as a loaded way to think about parole and recall decisions. Those who come out ‘early’ are often ‘recalled’ to serve the remaining part inside, after all.

The term seemed to make sense. (See Padfield, N. (2013) Understanding recall 2011). But now I’m no longer sure that the front door/back door distinction is really helpful because it masks a lot of other important stages in the process of a sentence. For example, since the Parole Board won’t direct the release (or re-release) of a lifer until they have been ‘tested’ in an open prison for a couple of years, the decision whether or not to move a prisoner through the various security categories of the prison system to an open prison is quite as important as the final decision of the Parole Board. Sentencing in practice is a string of decisions taken by very many different players, often over a number of years, and according to very different criteria and forms of accountability.

For the paper I gave to the Centre for Criminology in Oxford, I focused on the meaning of the life sentence in law and practice today. There are, astonishingly, in England today, people serving at least eleven very different sorts of life or indeterminate sentence. The law is far too complicated. No-one can easily understand the law – certainly not the media whose reports make very clear that they don’t understand the meaning of ‘life’, nor does the prison service, and nor do the prisoners serving them (which raises the importance of providing them with good quality legal advice).

Lifers of all sorts now have a ‘minimum term’ imposed when they are sentenced, an irreducible minimum term, which they must serve before the Parole Board will even consider releasing them. I have made clear on YouTube that I think the decision of the European Court of Human Rights in Vinter v UK last summer was very sensible, whatever this Government thinks. Even a ‘whole life’ prisoner should be entitled to know what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Generally, the minimum term is fixed on ‘desert’ grounds – but the question of how long someone deserves is endlessly debatable. Another question is whether this ‘minimum term’ should be reviewable.  I have long been impressed by the way the system works in France, where there is a category of judge (the juges d’application des peines) whose job it is to manage offenders’ sentences, and who may for good reason reduce the ‘minimum term’. (See Padfield, N. (2011) ‘An Entente Cordiale in Sentencing?’ 175 Criminal Law & Justice Weekly.) Why do most comparative sentencing lawyers here look to the English-speaking world and not across the channel for interesting ideas? Is it just a question of language?

You might have thought that once a lifer has served his or her minimum term (i.e. once the punishment element of the sentence has run its course), he or she would be transferred to a ‘nicer’ sort of prison, since they are then only being detained for the risk to the public that they are said to present. Holiday camps for post-tariff lifers? Perhaps not, but you would think that the prison system would in some way recognize their changed status? No. And this leads on to a consideration of the rules which govern release and the role of the Parole Board. The Board only directs release if it is “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. It seems to me that that there should be a clear burden of proof put on the state to prove the continuing necessity to detain. The practical importance of fairness was underlined by the Supreme Court in its recent decision in Osborn. Lord Reed cited my research on recall when he gave the unanimous judgement of the Court deciding that the Parole Board had breached both its common law duty of procedural fairness to the three appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings. Another good decision!

Would the best way to secure improvements to the sentencing process be to give prisoners the right to a regular review by a court or tribunal? Without such an independent review, can we really be confident that the system is fair? This aside, are we such a punitive society that we need to tolerate such an enormously high number of prisoners serving indeterminate sentences (currently over 13,000 people just in England and Wales)? These questions need wide debate.

Nicola Padfield

About Nicola Padfield

Nicola Padfield MA, Dip Crim, DES became Master of Fitzwilliam College in October 2013. She is a Reader in Criminal and Penal Justice at the Law Faculty, University of Cambridge, and has been a Fellow of Fitzwilliam College since 1991.

1 Comment

  1. I really don’t know an awful lot about sentencing criteria although you will be aware that in Scotland, where I live and where law & justice has been devolved since 1707, there is now a statutory presumption against imposing custodial sentences of less than three months. The idea is/was to reduce the number of usually young offenders repeatedly and uselessly going through the revolving door. I should add that I am not a criminologist. After leaving Fitz in 1962, having read Classics, I moved on to study law at Edinburgh University and subsequently practised as a solicitor for 35 before taking early retirement. I did specialise in litigation and famously acted for Gordon Brown, subsequently UK PM, in an action against the University (which he won). After retiring I was appointed to the Visiting Committee (IMB) of HMP Edinburgh on which I have served for 15 years. I was also appointed, by the Home Office Immigration Minister, Chair of a new IMB in Scotland which was established in 2009 following criticism by the then HMCIP, Anne Owers, that the Immigration Holding Rooms at Edinburgh & Glasgow Airports and the Reporting Centre in Glasgow were not monitored. (Immigration being reserved to Westminister, we report to London albeit the IMB and the Holding Rooms are in Scotland – what will happen if there is a “Yes” vote on 18 September is anyone’s guess! An addtional question would be what would happen to our responsibility for monitoring the Holding Room at Larne in Northern Ireland). So I am familiar with prison regimes and how prisoners manage their sentences. Up here, too, a custodial sentence of 4 years or less gives an automatic entitlement to release. And, of course, prisoners who do not present a danger may get HDT’d even earlier. In terms of release for LTPs we often get complaints from prisoners that there progress can be frustrated by the Catch 22 syndrome – you can’t get into an Open prison pre-release because you have to have completed certain programmes but the prison in question does not offer that programme. Frequently, too, prisoners who are transferred from one prison to another (within Scotland) can find that they are unable to complete a programme or course in the new prison. We do what we can to help and are in constant dialogue with Governors and prison staff.
    Apologies for these ramblings but it is nice to engage with the alma mater.

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