Oliver Sells KC
A senior criminal silk, who is a life-long Conservative, has reflected over the summer on the Party’s performance in office, and particularly on its record regarding prisons.
First things first.
Our crushing defeat at the hands of the electorate was, in my view, largely self-inflicted. It is difficult to contend as a party that we deserved to win. Indeed, it may be reasonably argued that we did all we could to lose. An announcement in the pouring rain of an election in the month of July was really only the final straw. It was a fitting vignette of a theme over recent years comprising political immaturity and hapless implementation.
We lost our way and our purpose
It was also a defeat which had been brewing for some years and it was delivered by an electorate rightly exasperated by our inability to govern with any degree of competence or even to behave properly. Our reputation for sound money and good governance was long gone. Even worse was the sense that we had lost the plot on law and order with some members of the government even unable or unwilling to obey the law.
While there was little enthusiasm for Labour there was, as I suspect we all found, a constant theme on the doorstep of “anyone but the Tories”. It is not difficult to see why. In too many areas over too many years we had failed to deliver. We had lost our way and our purpose. Before we can rebuild and seek office again, I believe that we must recognise and acknowledge the extent of our failure and the loss of trust involved. Only then can we begin to rediscover our raison d’être and our core principles as a party. It will be neither easy nor quick.
We forfeited the right to be the Party of law and order
In our own field of justice successive Conservative administrations made too many promises which they failed to keep; appointed a succession of quite unsuitable ministers and allowed the justice system to fall into disrepair in every sense. The whole justice sector was run down and diminished. The rule of law itself was, on occasions, disregarded. Judges and barristers were disrespected and the courts, the probation service and prison estate neglected. There was a sense in which we as a party forfeited the right to be regarded as the party of law and order. Crimes routinely uninvestigated, huge backlogs in cases of serious sexual offences. Basic police work was neglected. The list is long and depressing.
I recognise that there were many challenges along the way: however right from the outset we failed to reverse the deplorable Blair attempts at reform or to have any coherent strategy. I give just a few examples; the destruction of the office of Lord Chancellor, the repeated failure to tackle the Human Rights Act and the enduring scandal of the Imprisonment for Public Protection sentencing regime. There are regrettably, many more besides. Members of this Society could see clearly what was going wrong but too many ministers seemed incapable of doing their jobs or even behaving with a proper sense of integrity.
Background – Imprisonment for Public Protection The Blair Labour government introduced Imprisonment for Public Protection (“IPP”) by s.225 of the Criminal Justice Act 2003. This was a sentence composed of a punitive "tariff" intended to be proportionate to the seriousness of the crime committed, and an indeterminate period which commences after the expiry of the tariff and lasts until the Parole Board assesses the prisoner no longer to pose a risk to the public. The IPP was controversial from the outset, as it involves incarceration beyond the end of imprisonment appropriate to the gravity of the offence. The Supreme Court judge Lord Brown of Eaton-Under-Heywood described the IPP sentence as “the greatest single stain on our criminal justice system” [Howard League] . The Cameron government abolished the IPP sentence for new cases by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. But this did not affect the position of defendants who had already received IPP sentences. Such individuals have had to remain in prison after they have completed the tariff element of their sentences. Legislation has never been enacted to terminate their continued imprisonment. The most recent MoJ statistics [OMSQ_Q1_2024] show that there are still 1,132 “unreleased” IPP prisoners, that is inmates who have completed the tariff part of their sentence. Of these, some 64% have served over 10 years since the end of their tariff. There would have been no prison capacity crisis in the summer of 2024 if these inmates were not in prison.
We must challenge the prisons mindset
I want in this short piece to focus on only one aspect of this. Prisons.
The prison population has grown exponentially over the last five decades. From 38,000 in 1972 to 88,000 today [OMSQ_Q1_2024]. This is not because there have been twice as many crimes: in that period indictable crime has fallen by approximately 25%. So why the mismatch? Some reference is made to this phenomenon in a recent paper by the four retired Chief Justices. [Howard League] The authors make a number of good points: sentencing inflation has indeed been remorseless over recent decades. New offences have proliferated and sentencing has become far too complicated.
Under governments of all colours there has been a complacent groupthink that somehow longer and longer sentences will achieve some valuable societal benefit. We should have the courage to challenge this mindset.
Actually, what has happened is that our prisons have been filled with young offenders serving tariffs which are twice what they were thirty years ago, ageing offenders convicted of serious sexual offences, and those on never-ending sentences brought in by Tony Blair. In many respects Blair did the most damage while in office but we failed to repeal his worst excesses in the years that followed.
However, the Howard League paper overlooks one other key factor. Technology in all its forms has transformed the criminal justice landscape. This has gone largely unnoticed outside the legal profession.
There has been a sea change both in the law and the nature of evidence. The ubiquitous presence today of CCTV, mobile phones, DNA, and computers in all their many uses have revolutionised the nature of trials. Pleas of guilty have doubled and conviction rates overall are up 30%.
Increasing sentences is a dead end
The root cause of the unsustainable rise in the prison population is to be found in a toxic mix of a high level of convictions and endless sentencing inflation. We, as a Party, have played our part. There has been a long history of what may be described as “feeding the beast”. The siren voices of the pro prison lobby and sections of the media (now of course including social media) have combined to lure recent administrations down this false path. It is, as many have contended, a dead end.
Sentencing tariffs have doubled in 30 years
There are (very broadly) two categories of people in prison. The first consists of those guilty of serious crimes who pose a danger if at liberty. Of course the Parole Board must be involved in determining their fate but the delay in hearing these cases has become wholly unacceptable.
Even for this group of offenders there is no justification for the doubling of tariffs which has occurred and for which the senior judiciary and the Sentencing Council must share the blame. I give only one example, those convicted now of a knife murder in their teens routinely receive a tariff twice that of twenty years ago. To what end?
The second and much larger category are those in prison for many other lesser and often as repeat offenders. We should as a society be doing all we possibly can to keep such offenders out of prison. The probation service should be at the centre of this. It is in my experience a classic example of an admirable organisation which has been routinely degraded over the years We have as a country not really come to terms with community punishment.
Conclusion
From a very low base we must now begin to rebuild our party. We will be much assisted, I believe, by an administration, which like most Labour governments in the past, will become disunited and rancorous quite soon. We must decide what kind of party we are. In all aspects of policy we must have that painful but honest debate. Are we for low taxes and small government? In so many areas…immigration, social welfare, health…. there are hard decisions to make.
In our own field of justice the road back is a long one but it has to begin somewhere. I have not even touched on the many other areas we should address. We have an abundance of youthful talent in the Society. We must harness their skills, seek their views and listen to their concerns. Policy is best forged in the heat of constructive and serious argument.
I suggest we start now. A series of debates and meetings should be put in place to help this process.
Oliver Sells KC has practised at the criminal Bar in London since 1972. He is a Recorder who has sat at the Old Bailey for 30 years. He is a bencher of Inner Temple. He is a member of the Common Council of the City of London. He has canvassed for the Conservative Party in every election since 1970.