A landmark White Paper published by the Ministry of Justice (MoJ) in September 2020 outlined proposed Government legislation for significantly improving the criminal justice system.
Presented by the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, A Smarter Approach to Sentencing sets out the foundation of new proposals for the adoption of smarter sentencing in England and Wales.
In this article, we want to examine some of the Paper’s key proposals and offer our views on how they may affect enforcement agencies and service users.
The White Paper’s publication comes at a time when, in the Secretary of State’s words, “failures in sentencing lead to never-ending cycles of criminality, with low-level offenders stuck in a revolving door of crime”. In short, the current sentencing system is not properly equipped to help agencies to address the causes of crime, with little hope of rehabilitating offenders or of making them less likely to reoffend.
In the Paper’s foreword, the minister outlines the MoJ’s overarching vision for addressing the system’s failing, stating: “What we need is a new, smarter approach to sentencing. A system that takes account of the true nature of crimes – one that is robust enough to keep the worst offenders behind bars for as long as possible, in order to protect the public from harm, but agile enough to give offenders a fair start on their road to rehabilitation.”
Capita supports the fundamental shift that’s happening in sentencing reform and welcomes this White Paper and its proposals to protect the public, rehabilitate offenders and reduce reoffending.
The Paper sets out plans to deliver on several commitments made in the Conservative Party’s election manifesto to improve public safety and public confidence, including:
- introducing tougher sentencing for the worst offenders and end automatic halfway release from prison for serious crimes
- expanding electronic tagging for criminals serving time outside prison, including the use of so-called “sobriety tags” for those whose offending is fuelled by alcohol
- toughening up community sentences, for example by tightening curfews.
It also articulates an overriding strategy to create a more joined-up and planned approach across the MoJ and its agencies, encouraging them to work together on a more digital footing.
The Paper identifies three fundamental problems in the current sentencing framework:
- Automatic release – the blanket use of automatic early release has undermined confidence in the system, with the short length of time offenders actually spend in custody attracting the most criticism. This problem could be solved by using offender data better, and by using data analytics to manage offenders before and after release more effectively
- Improving confidence – low public confidence in non-custodial sentencing makes it crucial to win the confidence of both the judiciary and the public in community sentencing. There are limited numbers of probation officers, so using more electronic monitoring (EM) to control offenders once they have been released can greatly improve confidence, by making more information available for officers to decide whether early-release offenders can remain in society.
- Addressing the causes of offending – not enough has been done to tackle the root causes of offending, particularly when it’s driven by drug or alcohol misuse. Increasing judges’ sentencing options with sobriety testing or the use of location-based monitoring that can incorporate inclusion and exclusion zones could make it easier to track and monitor offenders.
Let’s now examine some of the key points from the Paper’s five main proposals for creating a smarter sentencing framework:
Protecting the public from serious offenders
Preventing the automatic early release of offenders who pose a significant risk to the public is a priority, with the introduction of a new power to stop offenders who receive a standard determinate sentence but then go on to pose a significant future risk to the public from being automatically released early. The threshold for passing a sentence below the minimum term for repeat offences will be raised.
It’s in these areas that data analytics could be best used for determining people’s propensity to reoffend, to help enforcement agencies make better decisions and to track ex-offenders’ movements with GPS to predict and identify crime.
Supervising offenders in the community
New developments in EM technology provide more opportunities for innovation and early intervention to stop people reoffending.
Speaking at the House of Commons’ Justice Committee on 22 September 2020, as part of its inquiry into the future of the Probation Service, Justin Russell, HM Chief Inspector of Probation, said: “On electronic monitoring, I think the GPS technology is potentially a game changer in being able to monitor people’s movements, as well as whether they are just at home or not.“
The White Paper proposes to expand alcohol abstinence and monitoring, using sobriety tags during community sentences for the first time. These tags monitor an offender’s sweat levels around-the-clock to determine whether they’ve drunk alcohol, and they can be a hugely valuable tool in combatting alcohol-fuelled offending. They can also be linked to electronic monitoring and add further options for sentencing.
Simplified out-of-court disposals would ensure that very low-level offenders can be dealt with swiftly and proportionately, without coming before a court.
A further proposal covers a pilot project for house-detention orders – a new, robust, community-based package for offenders who have not responded to existing community sentences. This will allow them to remain at home under restrictive curfews, with additional interventions mandated to rehabilitate and prevent further offending as needed.
Effective supervision is at the heart of the MoJ’s plans to improve probation services, ensuring that responsible officers have the time, support and tools to develop effective relationships with those they supervise, directly delivering effective interventions and placing offenders with other rehabilitative services when necessary.
Technology can play a key role here. Confidence in the use of digital technology is high. The Covid-19 pandemic has already given us an opportunity to rethink the justice system, by accelerating the digitisation of legal processes, including remote courts, digital debt-collection platforms and automatic transcription systems.
AI and machine learning technologies have become vastly more mature, providing more commercially-relevant software that analyses data faster and more efficiently to create greater learning and refine data sources.
As a further example, Capita’s innovative ResponsEye solution could enable responsible officers to manage their caseloads more effectively and efficiently, supporting any number of service users safely and responsively and turning face-to-face meetings into virtual ones.
The recently published Probation Workforce Strategy sets out plans to develop new IT systems with greater automation, providing staff with more time to focus on working directly with offenders. Next-generation video-sharing technology would enable probation teams to focus their resources where they are most needed, enabling them to meet remotely with low-risk service users under their supervision, keeping them safe and in regular contact.
Crucial to addressing reoffending is improving how people are supervised and supported after they’ve been released from prison and are back in the community.
Under the White Paper’s proposals, house-detention orders would again play a crucial role here, allowing offenders to engage with rehabilitation programmes and preventative interventions at home, while under restrictive curfews.
Supervising offenders who have the highest reoffending rates, by making them wear GPS tagging during their licence period, would better protect the public.
The huge amounts of data that the MoJ and its agencies hold, much of which is outdated or managed manually, needs to be better used to reduce reoffending. As many as 6,000 separate records may be held for each offender. Each person’s journey through the justice system ─ from initial contact with the police through conviction, sentence, release, parole / licence and monitoring to recall or sentence completion ─ generates massive amounts of data that should be fully used, analysed and automated to reduce reoffending, predict crime, increase operational efficiency and reduce costs.
That data can be analysed to predict behaviour for reoffending, committing crime and protecting victims; to support decision makers in complex judgements such as calculating release dates, or to automate manual processes such as transcription (such as conversations with solicitors or calls made from prison), speech to text, records management and document processing.
The White Paper proposes legislative change in two key areas of youth sentencing:
- serious offences, ensuring that custodial sentences are appropriate for the small number of children for whom they are necessary by reforming the Detention and Training Order and existing provisions for murder and serious violent and sexual offences
- community sentences and remand tests, introducing stronger, high-end community sentences and reforming the legal tests for custodial remand, to avoid unnecessarily putting children in custody.
Making greater provision for location monitoring and flexibility around curfews in youth rehabilitation orders would be crucial to stopping young people reoffending and avoiding putting children into custodial remand unnecessarily.
The White Paper represents a comprehensive set of proposals that will bring forward legislation in 2021 for a smarter approach to sentencing, strengthen the justice system and provide more confidence in the public’s protection.
The ongoing deployment of EM will be a core component in the delivery of many of the MoJ’s proposals, integrated fully with new solutions such as GPS, phone tagging and alcohol monitoring to reduce reoffending, supervise offenders in the community and empower the Probation Service.
Digital technology is already delivering better outcomes across the justice system. But it’s not just about the digitisation of services today; it’s about widening the horizon and looking at new technologies to prevent people reoffending,integrating platforms to make it a much more controllable and user-friendly experience.
Finally, data, AI and the use of analytics is quickly maturing – it’s critical for the justice system to have a holistic view of data, to understand where it comes from, to analyse it effectively and to improve its use to make more informed decisions and create better outcomes for offenders, the justice system and the general public.