Judges and magistrates are to be told to consider sparing thousands of criminals from being sent to jail amid the prison overcrowding crisis.
The sentencing council, which advises all criminal courts in England and Wales, is to issue new guidance telling judges and magistrates to “think very carefully about the non-custodial options” available.
The council of senior judges and legal experts said there was a growing body of evidence that short jail sentences were “not effective at reducing reoffending”.
In its submission to the Government’s sentencing review, the council also called on ministers to stop sending so many criminals to jail for so long if it wanted to solve the overcrowding crisis.
The council said: “Any efforts to prevent an ongoing, long-term crisis in the prison population would need at least to halt the sentence inflation which has occurred at the more serious end of offending. This is a matter for Government and Parliament, and halting or even reversing the trend would require political will.”
David Gauke, the former Tory justice secretary, has been appointed by Shabana Mahmood, the Justice Secretary, to carry out the review of sentencing by this spring.
He is expected to flesh out proposals floated by Ms Mahmood for more criminals to serve sentences at home under house arrest, where judges use technology to create virtual “prisons outside a prison”.
David Gauke, a former justice secretary, has been commissioned to carry out the review of sentencing – David Mirzoeff/PA Wire
Community alternatives will be necessary because the review will consider scrapping most short sentences under six months or potentially a year, which Mr Gauke advocated for when justice secretary.
In its submission, the sentencing council said that greater use of non-custodial options instead of short jail sentences was “in line with research in this area”.
But it said the use of house arrest would lead to “increased risk of breach” even if electronically monitored.
“Inevitably, breaches, especially repeated breaches, would require further court action, and it is hard to see how the system could operate without some possibility of custody as a means of enforcement,” it said.
It could also be “unfair” to some offenders. The judges said: “It will be less of a punishment for wealthier offenders to spend time in their homes than for poorer offenders, many of whom will live chaotic lifestyles.”
The council also warned that persistent criminals such as shoplifters would still have to be locked up, even if it was for shorter periods, for “the immediate protection of the public or pressing need to punish the offender”.
In its submission, the council cited how politicians’ imposition of longer sentences had played a key part in the prison population more than doubling to 86,000 since the early 1990s. This had been compounded by a doubling in prisoners held on remand to 17,700 and a rise in offenders recalled to jail from 1,000 in 1993 to 12,600 now.
It said: “Legislative changes over the past 30 years have established a backdrop of ever-increasing severity in sentencing. Single-issue campaigns have resulted in the introduction of minimum penalties, increasing numbers of statutory aggravating factors and maximum penalties being raised.
“The council can identify very little evidence in most cases that these increased penalties will result in deterrence.”
It recommended that any proposals by ministers to increase penalties for criminals should be “tested robustly to ensure they are necessary and proportionate, and that the consequences have been thoroughly modelled”.
It added: “This approach may help to brake or halt the sentence inflation we have seen in recent years. A much more difficult step would be to seek at least partially to reverse it. It would have to be done in a way that took into account sentencing across the board.
“Reducing long sentences in a proportionate way, for all offending would be a huge and lengthy undertaking, possibly requiring a Royal Commission.”