Sentencing Policy

The Home Secretary has on several occasions made no secret of his impatience with, and even anger towards judges sentencing habits, famously suggesting that the public might think some of them had "lost their marbles".

He may well be feeling that his brand new Director of Public Prosecutions, Ken Macdonald, is suffering the same problem, after it emerged that Mr Macdonald had used the word "grotesque" to describe the likely impact of proposed new sentences for murder on the prison population.

In the minutes of a Parliamentary legal Group meeting in July, just before his appointment, Mr Macdonald also suggested that Government prison policy is being driven by headlines, rather than the demands of justice.

Kirsty Wark spoke to Lord Corbett, Chairman of the Parliamentary Penal Affairs Group and Dr David Green, Director of Civitas.

KIRSTY WARK:
Lord Corbett, you were there. You heard Ken Macdonald's words. We had Lord Justice Woolf talking about sentencing and now the incoming DPP, though of course at the time he was not that. What impact does all that have?

LORD CORBETT
CHAIRMAN, PARLIAMENTARY PENAL AFFAIRS GROUP:
I think - there is a huge debate going on. We are heading for 115,000 people in prison. We already have the highest rate of imprisonment of any of our European neighbours. There ought to be a debate about this. A lot of money is being spent. The taxpayer is getting less and less for it. That is my concern.

KIRSTY WARK:
I can imagine David Blunkett's face when he heard about this?

DR DAVID GREEN
DIRECTOR, CIVITAS:
Well, it's a little unusual, I guess, for the Director of Public Prosecutions to be squeamish about putting people in prison.

KIRSTY WARK:
When he addressed Lord Corbett's group he was speaking as Chair of the Criminal Bar Association. Nevertheless, appointing someone who very clearly is at odds with the central plank of your policy can't be easy for the Home Secretary?

DR DAVID GREEN:
No, I don't think it can be. I don't think there is really any good reason, if you look at the evidence, I don't think Mr MacDonald has based his conclusions on what we know to be true. You only have to look at the experience in America, which he seems to regard with something close to contempt, what the Americans have done since the early 80s is increased the number of people in prison radically. They had something like 400,000 people in prison, in 1980. They nearly have 2 million now. Crime has come down dramatically, there is no getting away from that. He doesn't seem to be aware of that.

LORD CORBETT:
We have less crime than we had ten years ago. We have more people in prison. Ten years ago about one in every 26 defendants used to get sent to prison. It's now 1-13. That is not because the courts are doing less work. What is happened, the courts are giving longer sentences. They are giving stupid sentences as well. 59 in every 100 people sent to prison are back in within two years. With under 21s it's 74 in every 100. This is why I say the tax payer is getting a poor deal out of it. It it's money down the drain. There are other ways of doing it.

KIRSTY WARK:
The Criminal Justice Bill David Blunkett says is putting the sense back into sentencing. But clearly that is not what Ken MacDonald thinks.

LORD CORBETT:
What the argument is about, there are some people who have to be sent to prison for the safety of the public. Everyone accepts that. It's the other lot. The huge increase in those sent to prison when there is a whole range of community punishments which do work. When they are properly financed and target and people selected properly are much more successful than locking people up, where four out of five who get sentences for under a year. No sentence planning or probation supervision. It's money down the drain.

DR DAVID GREEN:
You are saying that community sentences work. But in what sense do they work? If you take - the usual measure is the reconviction rate after two years.

LORD CORBETT:
They are no worse, many are much better.

DR DAVID GREEN:
The official measure of reconviction states that what is called the incarceration effect of prison, meaning if you are prison you can't steal people's cars and break into houses. The clock starts ticking when you leave prison and it starts ticking at the beginning of the sentence. Prison is more effective.

KIRSTY WARK:
I want to bring you on to the point that Ken MacDonald is making, you talk about sentencing for people who should not be in the community. Clearly murderers should not be out in the community, but what he seems to be saying is that the three-tier system for murder sentencing, as it were, for being imposed would not work and have an impact on the prison population. At that level he seems to think there is a difference. That judges should be given more discretion, which is clearly not what David Blunkett wants?

DR DAVID GREEN:
I entirely agree with David Blunkett here. Judges seem to think that there is some kind - they have some kind of right - they have some right of total control over sentencing.

LORD CORBETT:
They listen to the evidence. You and I don't listen to the evidence.

DR DAVID GREEN:
The important point of this, among free people we are entitled to make our own laws. We make the rules we live by. Parliament must be paramount in determining what the law of the land is. That includes setting maximum and minimum punishments. Otherwise judges are exercising...

LORD CORBETT:
Judges and courts need discretion. The argument should be about what are we getting for the money we get for putting into the criminal justice system. Can we get better? And the answer is yes and we can do that by sending fewer people to prison and stand a much better chance then of cutting the re- offending rates, that is what it should be about.

KIRSTY WARK:
Thank you very much indeed. And the Home Office didn't want to put anyone up for interview but certainly Ken MacDonald has now said that obviously, as a senior civil servant he won't be making any more comments like the ones he made to the Penal Affairs Group.

This transcript was produced from the teletext subtitles that are generated live for Newsnight. It has been checked against the programme as broadcast, however Newsnight can accept no responsibility for any factual inaccuracies. We will be happy to correct serious errors.