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Judges and magistrates in England and Wales will be told to move away from handing out short custodial sentences in favour of community-based alternatives in a long-awaited sentencing review to be announced on Thursday.
Amid concern that the criminal justice system could collapse because of overcrowding in prisons, the former Tory justice secretary David Gauke will call for suspended sentences to be made available for custodial sentences of up to three years, instead of the current two.
He will also say that magistrates should be encouraged to defer sentencing for some offenders for up to 12 months, instead of the current six, and encourage wider use of deferred sentences for pregnant women or those with substance dependencies.
In a further recommendation, he will also suggest removing post-sentence supervision for offenders who receive sentences of less than two years following concern that the work has overwhelmed probation officers.
Among the offenders who will spend less time in prison and more time in the community will be burglars, shoplifters and criminals convicted of assault, officials have confirmed.
There will be no exemption from suspended or deferred sentences for sexual and domestic abusers – any sentencing decision will remain within the discretion of the judge, sources said.
Shabana Mahmood, the Lord Chancellor who appointed Gauke to chair the review last year, is expected to accept the recommendations, which will form the cornerstone of new legislation to be brought before parliament over the next six months.
She has warned that without an overhaul of sentencing, there will be no free prison cells, the courts will seize up, and law and order could break down.
Gauke said: “For lower-level or first-time offenders facing challenges like addiction or homelessness, short prison sentences can push them into a cycle of crime.
“Giving people the opportunity to address the root causes of their behaviour while under supervision in the community will not only help ease the prison capacity crisis but reduce reoffending, cut crime and ultimately make our streets safer.”
The expansion of suspended sentences – enforced through suspended sentence orders – could free up more than 1,000 prison places every year, sources said.
Offenders can be ordered to meet strict conditions such as attending treatment, completing up to 300 hours of unpaid work or engaging in rehabilitation programmes. If they breach those conditions, they could go to prison.
According to Ministry of Justice statistics, 59% of adults released, having spent 12 months or less in prison, reoffend within a year. That figure rises to 62% for those with custodial sentences of six months or less.
In contrast, the reoffending rate for offenders who received a suspended sentence with requirements is only 25%.
Deferred sentences, when criminals are told they will be sentenced after a period in which they can begin rehabilitation, have also shown promising results in reducing reoffending in Northern Ireland, officials said.
Extending the deferral period to 12 months – similar to models in several Australian states – would give offenders more time to engage with services, stabilise their lives and avoid custody altogether.
Pregnant women could use the deferral period to access healthcare, housing and support, the review is expected to say. It would also enable them to avoid the trauma of giving birth in prison and to receive a lesser sentence, which could mitigate the impact of the conviction on mother and baby.
If an offender does not comply with the conditions of their deferred sentence, they can be brought back to court.
Other recommendations are expected to include allowing prisoners to earn their freedom after serving a third of their sentences under new minimum and maximum sentence plans.
Offenders will be able to earn early release if they complete work, training or education assignments and demonstrate good behaviour.
The government’s plans are expected to require thousands of offenders to be tagged in the community, and will increase the burden upon probation officers.
Reports this week claimed that the government has ordered tens of thousands of extra tags which will be used to monitor offenders in the community.
Keir Starmer’s government has demonstrated an appetite for a liberal overhaul of the sentencing system. In July, the prime minister appointed James Timpson, the former chair of the Prisons Reform Trust, as his prisons minister.
In 2019, while he was justice secretary, Gauke made a speech questioning the effectiveness of short prison sentences, arguing that there was a strong case for those of six months or less to be scrapped altogether.
Tania Bassett, a national officer at the the probation officers’ union Napo, welcomed proposals to increase the use of deferred sentences but cautioned against the overuse of suspended sentences.
“Deferred sentencing allows probation officers to intervene with low level offenders such as first-time drug addicts and [female] offenders before they receive a sentence. It allows people to be signposted towards services and gives them a chance to reform,” she said.
“I am more concerned about the use of SSOs [suspended sentence orders] because they are seen as a last chance saloon,” she said.
“What I wouldn’t like to see is people being given them unnecessarily when a community order would be more appropriate.”
