Lord Timpson’s prison reforms: the key to real change, or poorly cobbled-together tweaks?

Charley Weldrick reviews the proposed reforms outlined by Lord Timpson on 23 October 2024 and considers whether the measures proposed are likely to be of substantial long-term benefit.

Introduction

On the 23 October, the recently ennobled Lord Timpson delivered a statement to the House of Lords entitled Sentencing Review and Prison Capacity. The thrust of his statement was not only that prisons in this country are full, but that a radical change in the country’s approach to sentencing was needed if that were to change. This is unsurprising – England and Wales is among the highest ranked of the European nations when it comes to the number of individuals incarcerated per 100,000 citizens; in 2023 the figure was 136.2. This is despite crime rates which were, until fairly recently, trending downwards and which are still lower than they were 20 years ago. Lord Timpson was clear throughout his statement that statistics such as these will inform his sentencing review, and nowhere is that clearer than in his decision to appoint David Gauke, ex-Conservative Party Justice Minister, to oversee that review.

Identifying the problem

It was noted by Mr Gauke in his recent piece in the New Statesman entitled “How to fix the prisons crisis: The political bidding war over tougher sentences must end”, that falling crime rates have been seen across western Europe, even in countries which have not seen their prison population increasing. He makes his own position clear: “… our very high reoffending rates suggest that our overcrowded prisons are not successful in rehabilitating offenders. We need to look at ways in which sentencing policy can better contribute to reducing reoffending”.

He is correct: the approach of successive Governments appears to have done little to stem the flow of citizens coming to reside at His Majesty’s Pleasure. The ballooning prison population came to recent prominence following the widely covered early release scheme, under which some prisoners serving standard determinate sentences had the custodial element of those sentences reduced from 50% of the sentence to 40%.

Mr Gauke and Lord Timpson are also correct to identify that there is a real problem – the prison population in this country grows at a rate of around 4,500 a year. That this cannot continue is, as Lord Timpson puts bluntly, ‘a question of simple mathematics”. In order to maintain a prison estate capable of housing that many prisoners, the equivalent of four-and-a-half HMP Birmingham’s would need to be built each year.

It is clear that a more well-developed approach is needed than early releases or the suspension of sentences. On that latter point, recent analysis of the data on the effect of R v Ali [2023] EWCA Crim 232 shows that it has had a negligible impact on the growth of the prison population, and that in fact since 2022 there has been a larger increase in the imposition of immediate custodial sentences than suspended sentences.

That being the problem, then, what is the proposed approach?

How to fix a broken system

Lord Timpson takes inspiration from the approach in the US state of Texas – perhaps a jurisdiction not often associated with a liberal approach to rehabilitation. Specifically, he describes a system of “good behaviour credits, where well behaved prisoners could earn time off their sentence by engaging in rehabilitation programmes”. This, he goes on to say, caused the “prison population to fall by over 20,000” and led to the closing of 16 prisons. It is worth noting, though, that the actual impact of the scheme in Texas is disputed by some academics and it is far from clear that the Texas scheme had the impact Lord Timpson suggests.

Moreover, as defence practitioners will know, prisons are currently rarely able to accommodate classes or indeed any mechanism through which a prisoner can achieve assisted rehabilitation. For prisoners on remand, there is already a de facto good behaviour credits system – prisoner’s complete courses, tutor other prisoners, and can receive enhanced prisoner status by becoming drug free.  For most of these options the issue is not a lack of willingness but a lack of available resources to offer the requisite programmes. Given the current difficulty in accessing rehabilitative activities in prison, it is difficult to see how a scheme which rewards participation in such activities would have any real effect absent significant investment to facilitate dramatic increases in staff and resources.

Lord Timpson is also enthusiastic about rehabilitation outside of prison. He describes how “in many of our prisons today, a drinker can all too easily procure a drink. On a sobriety tag, however, with their sweat measured every 30 minutes and a 97% compliance rate, their teetotalism is also as strict as mine”. He goes on to describe how “the modern world presents us an opportunity to build a prison outside prison” – on one reading, Lord Timpson looks to be making literal Michel Foucault’s assertion that “the prison begins well before its doors. It begins as soon as you leave your house, and even before”. That said, Lord Timpson’s overarching point that there are creative and effective mechanisms of rehabilitation outside of the prison is in many ways sound.

The difficulties such an approach would encounter has been clearly illustrated by the recent early release program – the Probation Service simply does not have the capacity or resources to facilitate it. According to a recent report by Civil Service World, some Probation Services are operating with “less than half the number of required staff”. The Probation Service does an extremely valuable job, and does it well, but this description will not be a surprise to anyone familiar with the criminal justice system.

The other pressure-release valve identified by Lord Timpson is speeding up the process of deporting foreign national offenders, something he described as ‘as much as, if not more of, a punishment than imprisonment’. While this may appear at first glance to be a low-effort, low-cost and effective mechanism for the reduction of the prison population, it is unlikely to have any meaningful impact.

Not only is the foreign national population in prisons only 10,000 of some 82,000, but there is also already a mechanism in place for fairly swift deportation. Under the existing Early Removal Scheme, prisoners serving a determinate sentence are in most cases deported after having served one quarter of their sentence. Reducing this further will have a negligible impact.

A ray of hope?

That said, there are some immediately useful changes coming. Increasing the maximum period that eligible offenders can spend under house arrest from six to twelve months is welcome. So too is streamlining the process of re-releasing those recalled on licence and allowing their cases to be considered after a two-to-three-month period. On the other hand, giving the Magistrates the power to pass custodial sentences of up to 12 months is likely to be counterproductive.

The reality of the matter, though, is that no amount of tinkering can solve the fundamental crisis in the prison system. What underlies all of its issues, alongside funding, is that prisons and the police have become the public service of last resort. Every defence practitioner has countless stories of the police turning up to a mental health crisis and turning what began as a mental breakdown into multiple Assault Emergency Worker charges. Many solicitors and barristers have their own first-hand experiences of young people failed by social services, on the cusp of a successful defence under the Modern Slavery Act, who instead find themselves inside prison on a Possession with Intent to Supply Class A charge.

Until the root causes of the growing prison population are addressed, the issue will continue to worsen. Lord Timpson’s reforms may remove some of the immediate pressure on the system, but do not currently promise any long-term sea change.

Charley Weldrick

Charley accepts instructions in a wide variety of criminal matters, including serious violence, drug offences, and sexual offences. He is particularly experienced in acting for young people caught up in the Criminal Justice System.