11:46, April 22 212 0 theguardian.com

2018-04-22 11:46:05
Stop handing out so many suspended sentences, courts told

Judges, magistrates, court clerks and probation officers have all been instructed to stop handing down so many suspended prison sentences and switch instead to giving offenders community orders.

A leaked circular sent earlier this month by the chair of the Sentencing Council, Lord Justice Treacy, to courts across England and Wales warned that a punitive culture had developed – imposing suspended sentences “as a more severe form of community order” when not legally appropriate.

Probation officers have been told to no longer recommend suspended sentences in pre-sentence reports.

The two-page letter highlights a stark trend that has emerged over the past decade of suspended sentence use rising sharply while the number of community orders has almost halved. Suspended sentences are given to convicted offenders on the understanding that if they reoffend or fail to observe their conditions they are liable to be sent to prison.

Treacy’s circular has been sent at a time when prisons remain overcrowded. In it he wrote that in 2005, courts handed out almost 203,000 community orders; by 2010 that had fallen to 188,000 and in 2015 it was fewer than 108,000.

By contrast, the number of suspended sentence orders has risen substantially. They stood at 4,000 in 2005, reached 46,000 in 2010 and were more than 52,000 in 2015.

The circular explained: “Evidence suggested that part of the reason for this could be the development of a culture to impose suspended sentences as a more severe form of community order in cases where the custody threshold may not have been crossed.

“In such cases, if the suspended sentence order (SSO) is then breached, there are two possible outcomes – neither of which is satisfactory. Either the courts must activate the custodial sentence and the offender then serve time in custody even when it may never have been intended that they do so for the original offence. Or the court could choose not to enforce the suspended sentence, thereby diminishing the deterrent power of such orders.”

Treacy added: “A suspended sentence is a custodial sentence and not a more severe form of community order. They can only be imposed where the court has determined first that the custody threshold has been crossed and second that custody is unavoidable ... At that point the court may then undertake a weighted assessment of the various factors which may lead the court to consider that it is possible to suspend the sentence.”

In order to give effect to his warning, Treacy agreed with the director of the National Probation Service that probation officers would refrain from recommending SSOs in pre-sentence reports.

Treacy noted: “This in no way impacts upon judicial discretion to suspend custodial sentences: it merely seeks to reinforce good sentencing practice.”

Penelope Gibbs, the director of Transform Justice, who has seen the circular, fears it could lead to judges giving more prison sentences if they are discouraged from using suspended sentences.

She said: “I completely understand the desire of the Sentencing Council to increase community orders. But banning the probation service from recommending suspended sentence orders is not the right strategy. If a suspended sentence is not recommended, judges may use a prison sentence instead, and we know that short prison sentences are ineffective”

There has been growing concern that community orders are falling out of fashion. Two years ago the former lord chief justice, Lord Thomas of Cwmgiedd, called for the creation of “really tough, and I do mean tough, community penalties”.

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