Locked up to make us feel better

Petty criminals are increasingly being given life sentences not for crimes they have committed, but

Almost unnoticed, a fundamental change in penal policy is gathering pace. The main factor in the length of a sentence is, increasingly, not the severity of a crime, but the supposed risk that an offender will do something worse if released.

Risk assessment is at best an inexact science - often, as we shall see later, shockingly so. But its emerging role in the sentencing process is having dramatic consequences: hundreds, soon to be thousands, of petty arsonists, pub brawlers and street muggers are in effect being given life, usually on the basis of highly subjective pre-sentence reports.

The change is certain to cause a further great rise in the prison population, already at record levels, having grown faster under new Labour than under any previous government. It is also arousing deep concern among lawyers, and will top the agenda at a special conference organised by the Criminal Bar Association in Birmingham next month.

The consequences for classical notions of justice are profound. Old lags have a saying: "If you can't do the time, don't do the crime." It needs reformulation: "If you can't do the time, don't have a background that might make a bureaucrat think if ever you're set free, you might be dangerous to the public."

At the heart of this shift is a piece of legislation whose import was barely appreciated when it passed through parliament: the Criminal Justice Act 2003, with its indeterminate public protection (IPP) sentences. According to the act, judges must impose an IPP - life in all but name - on any person convicted of any one of 153 separate violent and sexual offences, if they believe, in the words of the act, that there is "a significant risk to members of the public of serious harm from the commission of further specified offences". In an appeal judgment last year, one of the most senior criminal appeal judges, Lord Justice Judge, made clear how huge a departure this is: "Although punitive in its effect, with far-reaching consequences for the offender on whom it is imposed, it [the IPP] does not represent punishment for past offending. The decision is directed not to the past, but to the future."

It is not as if it had been difficult to lock up the truly dangerous under existing legislation. For decades, judges have been able to give "discretionary" life sentences to those convicted of certain crimes short of murder, such as rape and wounding with intent to kill. After 1998, the "two strikes and you're out" law (now replaced by the IPP) meant that anyone convicted of one of a short list of very serious crimes for a second time got life automatically.

However, the scale on which the IPP is being used dwarfs these older measures. Discretionary and automatic life sentences used to be given about 200 times each year. Since coming into force in April 2005, the IPP has been imposed more than 2,000 times, with a rate of over 100 new IPPs each month. As an official told me, Home Office models predict that by 2011, there will be 12,500 inmates serving IPPs - more than three times as many as those doing life for murder.

"Risk panic"

Hard cases, as the saying goes, make bad law, and the cases that the government cited to justify the 2003 act were very hard indeed - such as the release of the paedophiles who killed the 14-year-old Jason Swift in 1985. Such debate as there was helped to fuel a "risk panic", in which the media have focused obsessively on crimes committed by previous offenders who should have been under supervision, such as the 2005 murder in Reading of the teenager Mary Ann Leneghan.

It cannot be stressed sufficiently that there is no empirical basis for this panic at all. A study of sex offenders emerging from long-term imprisonment, published in 2002 by a team led by Oxford University's Roger Hood, found (as had earlier, similar projects) that their reconviction rate is reassuringly low. Of the 94 followed for six years after release, only eight were reconvicted for a further sexual offence. Another four were reconvicted and jailed for a non-sexual violent crime. Since the study, multi-agency schemes to monitor such offenders after release and more widespread sex offender treatment in prison may well have reduced this risk.

Even freed lifers commit relatively few crimes. The number of homicides by those previously convicted of homicide and released varies each year between zero and two - roughly 0.3 per cent of murders. In all, about 3 per cent of freed lifers will eventually be convicted of an imprisonable offence.

Nevertheless, public rhetoric is at fever pitch. A recent Observer article claimed that the system for monitoring freed sex offenders in the community is close to collapse. This was accompanied by an editorial headlined: "Control these terrifying predators". Robert Whelan, of the think-tank Civitas, told the Sunday Times that the lesson from the Mary Ann Leneghan case was that all offenders should be kept much longer in prison. Those who disagreed, he said, were "diehard utopians".

Radical as the 2003 act is, it was not the first attempt to protect society from its most dangerous members. From 1857, government criminal statistics began to include figures for "known thieves and depredators". The long search for ways to deal with them began.

By the end of the 19th century, social Darwinism and the work of writers such as Cesare Lombroso had added a veneer of science to the notion of the predatory criminal, and preventive detention for periods far in excess of the ordinary prison sentence was increasingly seen as the solution. Some, such as the writer Bruce Thomson, argued that these inmates should also be castrated: "With cattle, this kind of selection is in fact almost always followed: for hardly anyone is careless enough to allow his worst animals to breed. Why, then, should incorrigible criminals go into prison for short periods only, only to be sent out again in renovated health, to propagate a race so low in physical organisation?"

The term "personality disorder" had yet to be invented, but many argued that dangerous criminals had something like a disease, which made their behaviour incorrigible. As the Westminster Review put it in 1898, "the criminal, while not in the ordinary sense lunatic, is thoroughly irresponsible, hopelessly perverted and mentally and physically incapable of reformation. He is a dangerous animal, and society must be protected against him."

Tyranny of bureaucrats

Against this background, the first public protection sentencing measure took shape: Herbert Gladstone's Prevention of Crime Act 1908. When sentencing a criminal, the court would pay close attention to his record, and so deduce whether there was a high risk of recidivism. If the court thought there was, indeed, "evidence of habituality", it could impose a "dual-track" sentence - first an ordinary penal element, equating to what would previously have been the total sentence, and then "preventive detention", usually for five years. Thus, Gladstone argued, the most dangerous villains would be incapacitated.

The Liberal MP and writer Hilaire Belloc argued in vain that this was "utterly at variance with every political or social principle that western Europe had ever known" for more than 3,000 years. The act, Belloc said, would enshrine the "tyranny of bureaucrats".

One of the sharpest critics of the 1908 act was the home secretary who took office two years later, Winston Churchill. His fear was that it was likely to fall hardest not on the most dangerous, but on prolific petty criminals. "The general test should be - is the nature of the crime such as to indicate that the offender is not merely a nuisance but a serious danger to society?" Churchill wrote in an official circular. Thus he identified a crucial issue of enormous relevance today.

Compared with its 2003 successor, the 1908 act was relatively little used - usually there were fewer than 100 preventive sentences a year. But when it was finally evaluated by a departmental committee in 1932, the findings were devastating. As Churchill had predicted, most of those sentenced were not dangerous at all, but "men of little mental capacity or strength . . . whose frequent convictions testify as much to their clumsiness as their persistence in crime".

Undeterred by this failure, Attlee's Labour government passed another preventive detention act in 1948. In 1963 an inquiry by the home secretary's Advisory Council on Sentencing showed that this was equally unjust. Most of those given the new form of preventive detention - up to 180 people a year - were, in the words of a report from Cambridge University, not predators, but "passive inadequate deviants". In 1967, the 1948 act was repealed.

Overcrowded prisons

Evidence is now emerging that the defect spotted by Churchill in the 1908 act is equally manifest in that of 2003. According to official figures, just 28 - 4 per cent - of the first 707 IPPs were imposed on those convicted of crimes against children, and a further 40 on rapists. Forty-four of those sentenced were arsonists, and 149 had been convicted of wounding. But by far the biggest group - 284 prisoners, or roughly 40 per cent of the total - were given IPPs for robbery, almost all of them for street crimes or mugging.

To be sure, some muggers may, on release, go on to commit murder. A minority of arsonists may one day set a fire in which someone is badly hurt. Yet it is clear that the crimes actually committed by many of those getting IPPs are relatively insignificant - and nothing like as serious as those which would previously have merited life. The median tariff set for the first 707 IPP prisoners - that is to say, the penal element of the sentence, the term that would have been imposed before the 2003 act - is just 30 months.

In theory when the tariff expires, IPP prisoners, as with those serving life for murder, become eligible for Parole Board review, and hence possible release. But as the board's chairman, Sir Duncan Nichol, pointed out last December, even if they do get out at their first opportunity, they will probably spend much longer in jail than before. Most IPP inmates will have spent months on remand, and by the time they have been sentenced and settled in a long-term prison, their review date may well be looming.

It takes months, however, for the various prison and other officials necessary to this process to prepare and write their reports. In addition, before freeing someone already deemed dangerous, the Parole Board will need to see that their so-called "dynamic risk factors" have declined - perhaps by graduation from a long course of therapy while in prison. The likelihood is that the time many inmates spend in jail being assessed as future risks will be longer than the time served as punishment.

Nichol commented: "The global impact of IPPs will be that prison overcrowding will increase; places on offending behaviour courses will be scarce; prisoners may spend more time in custody awaiting such courses when they might otherwise have been released earlier; crucial time will be spent writing parole reports by prison and probation staff who have other duties; and the Parole Board will need increased resources to deal with a quadrupling of our indeterminate casework."

A further factor seems likely to make sentences longer still. The 2002 study of long-term sex offenders by Professor Hood and his colleagues suggested that the Parole Board has an innate and understandable bias towards being overcautious: no one wants to be responsible for setting a maniac free. The study looked at what happened to 82 men whom the board decided were "high-risk" and hence refused parole. Four years after their eventual release, just seven had been reconvicted of a further sexual offence, and four for a violent offence - a false positive rate of 92 per cent for a sexual crime, and 87 per cent for either sex or violence.

These men had been serving determinate, fixed-term sentences, so knew the latest they would get out: perhaps, in their cases, such apparent overcaution was acceptable. Now, however, many of the same type of prisoners will be serving IPPs and may never be freed at all, or be freed only after an exceedingly long time.

Sex offenders sentenced today will have been assessed using one or more structured, psychological "tools". These are not, in any sense, infallible: derived from analysis of prob abilistic risk factors shared by groups, they are a very blunt instrument when applied to individuals - when even their staunchest advocates admit that they are no more than about 75 per cent accurate. Hood's team also looked at what happened after release to prisoners deemed to be high-risk using the tool known as Static-99, and found a false positive rate only slightly better than the Parole Board's.

But at least these tools have been evaluated. Perhaps the most disturbing aspect of IPPs is that the method being used by judges in most cases has no such basis at all.

According to the Home Office, most non-sex offenders considered for an IPP - that is, more than 90 per cent - will have been subject only to the standard OASys pre-sentencing assessment, a box-ticking exercise by a probation officer who often will have no direct experience of the offender. Having considered, in a formulaic manner, a variety of factors derived from the paper record, the officer ends the process by making what amounts to a purely subjective judgement: is this offender low, medium, high or very high risk? If either of the latter two, he will probably get an IPP.

I spoke to officials who designed the OASys forms. To date, there has not been any evaluation of their predictive powers, even though they are now being used daily to justify indefinite incarceration. It is, as Belloc put it, "the tyranny of bureaucrats". A new study by the criminologist Diana Fitzgibbon can only amplify such concerns. Based on her investigation of OASys risk analysis in a large city, it finds evidence of "risk inflation", leading to the "non-transformative warehousing" in prison of those thought to be risky. She also discovers widespread gaps in offenders' OASys files - omissions of crucial episodes in their histories that might, had they been considered, have led to their being given a lower risk category.

Authoritarian dystopia

Perhaps this risk inflation explains some of the cases of IPPs that have already been upheld by the Court of Appeal. For example, there was the 18-year-old with no previous convictions who set fire to two rubbish bins at a seaside resort; and the middle-aged man who set fire to his house when his mother went into a care home - he didn't even do the job very effectively: he poured cooking oil on some cushions and tried to set them alight. Among the numerous robbery cases, there was a man who punched a pizza delivery driver in the chest, and tried unsuccessfully to steal his car; later that night he threatened - though did not hurt - someone else and made off with his mobile phone.

In his story (later a Tom Cruise movie) "The Minority Report", Philip K Dick wrote of a system governed by the notion of "precrime", where people who had yet to do anything wrong were convicted and sentenced because the authorities "knew" they would.

Dick was writing science fiction, but even minus his "precogs" - weird beings with the gift of second sight - the precrime world is already here. It shows every sign of becoming an authoritarian dystopia.

The facts of crime and punishment
Research by Sarah O'Connor

2,000 number of preventive detention orders issued in the UK since April 2005

3% only this proportion of freed lifers is reimprisoned for new offences

17,000 increase in UK prison population since new Labour came to power

8,000 number of extra prison places the Home Office plans to create by 2012

£100,000 cost of creating each new prison place

This article first appeared in the 19 March 2007 issue of the New Statesman, Trident: Why Brown went to war with Labour

Photo: ANDREW TESTA/THE NEW YORK TIMES/ EYEVINE
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Interview: Nicola Sturgeon's Scottish referendum dilemma

In a candid interview, the First Minister discusses Theresa May’s coldness, Brexit and tax rises – and why she doesn't know when a second referendum will be held. 

Nicola Sturgeon – along with her aides, who I gather weren’t given much choice – has taken up jogging in the verdant country­side that lies to the east of the Scottish Parliament. “The first time was last week,” she says, when we meet in her large, bright Holyrood office. “Loads of people were out running, which made me a bit self-conscious. But it was fine for ages because everybody’s so focused. Then, suddenly, what must have been a running group came towards me. I saw one of them look and as they ran past I turned round and all of them were looking.” She winces. “I will eventually get to the point where I can run for more than 100 yards at a time, but I’m not at the stage yet where I can go very far. So I’m thinking, God, they’re going to see me stop. I don’t know if I can do this.”

This is a very Nicola Sturgeon story – a touch of the ordinary amid the extraordinary. She may have been a frontbencher for almost two decades, a cabinet minister for half of that and the First Minister since 2014, but she retains that particularly Scottish trait of wry self-mockery. She is also exceptionally steely, evident in her willed transformation over her adult life from a shy, awkward party member to the charismatic leader sitting in front of me. Don’t be surprised if she is doing competitive ten-kilometre runs before the year is out.

I arrived at the parliament wondering what frame of mind the First Minister would be in. The past year has not been especially kind to her or the SNP. While the party is still Scotland’s most popular by a significant margin, and Sturgeon continues to be its dominant politician, the warning lights are flashing. In the 2015 general election, the SNP went from six seats out of 59 to 56, a remarkable result. However, in Theresa May’s snap election in June this year, it lost 21 of those seats (including those of Angus Robertson, the SNP leader at Westminster, and Alex Salmond), as well as half a million votes. Much of the blame has been placed on Sturgeon and her call for a second independence referendum following the vote for Brexit. For critics, it confirmed a suspicion that the SNP only cares about one thing and will manipulate any situation to that end. Her decision also seemed a little rushed and desperate, the act of a woman all too aware of the clock ticking.

But if I expect Sturgeon to be on the defensive, maybe even a little downbeat, I’m wrong. Having just come from a feisty session of First Minister’s Questions, where she had the usual barney with her Tory opposite number, Ruth Davidson, she is impressively candid. “When you come out [of FMQs], your adrenaline levels are through the roof,” she says, waggling a fist in my direction. “It’s never a good idea to come straight out and do an interview, for example.” Adrenalised or not, for the next hour, she is thoughtful, frank, funny and perhaps even a little bitchy.

Sturgeon’s office is on the fourth floor, looking out over – and down on – Holyrood Palace, the Queen’s official residence in Edinburgh. As we talk, a large artistic rendering of a saltire adorns the wall behind her. She is similarly in blue and white, and there are books about Burns on the shelves. This is an SNP first minister’s office.

She tells me that she and her husband, Peter Murrell, the party’s chief executive, took a summer break in Portugal, where his parents have a share in an apartment. “We came home and Peter went back to work and I spent a week at home, just basically doing housework…” I raise an eyebrow and an aide, sitting nearby, snorts. She catches herself. “Not really… I periodically – and by periodically I mean once a year or once every two years – decide I’m going to dust and hoover and things like that. So I did that for a morning. It’s quite therapeutic when you get into it. And then I spent a week at home, reading and chilling out.”

In a recent Guardian interview, Martin Amis had a dig at Jeremy Corbyn for having “no autodidact streak”. Amis said: “I mean, is he a reader?… It does matter if leaders have some sort of backing.” One of Sturgeon’s great strengths is that she is a committed bibliophile. She consumes books, especially novels, at a tremendous rate and raves to me about Gabriel Tallent’s astonishing debut, My Absolute Darling, as well as Bernard MacLaverty’s Midwinter Break. She has just ploughed through Paul Auster’s daunting, 880-page 4 3 2 1 (“It was OK. I don’t think it should be on the Booker shortlist.”) She also reread the works of Chimamanda Ngozi Adichie before interviewing her onstage at the Edinburgh International Book Festival in August.

The First Minister is now reading What Happened, Hillary Clinton’s book about her defeat by Donald Trump. “I’ve never been able to read any of her [previous] books because literally every word is focus-grouped to the nth degree,” Sturgeon says. “This one, there are moments of frankness and raw honesty and passages where it’s victimhood and self-pity, but that’s kind of understandable and very human. The thing that fascinates me about Hillary, apart from the politics, is just her sheer bloody resilience.  Given what she’s gone through and everything that’s been chucked at her, I genuinely don’t know how she keeps coming back.”

***

Speaking of resilience, does she have any fellow feeling for Theresa May, humiliated by the electorate and, for now, kept in No 10 like a racoon in a trap by colleagues who are both power-hungry and biding their time? “At a human level, of course,” she says. “When you’ve got an insight into how rough and tough and, at times, downright unpleasant the trade of politics can be, it’s hard not to feel some personal sympathy. Her position must be pretty intolerable. It’s tempered, though, by the fact that nobody made her call an election and she did it for purely party-political interest.”

How does she get on with May – who is formal and restrained, even off-camera – in their semi-regular meetings? Sturgeon starts laughing. “The Theresa May that the country ended up seeing in the election was the one I’ve been dealing with for however long she’s been Prime Minister. This is a woman who sits in meetings where it’s just the two of you and reads from a script. I found it very frustrating because David Cameron, whose politics and mine are very far apart, always managed to have a personal rapport. You could sit with David and have a fairly frank discussion, agree the things you could agree on and accept you disagree on everything else, and have a bit of banter as well.

“I remember just after May came back from America [in January], when she’d held Trump’s hand [Sturgeon starts laughing again], she’d also been to Turkey and somewhere else. This was the Monday morning. We sit down, it’s literally just the two of us, and I say, ‘You must be knackered.’ She said, ‘No! I’m fine!’ And it was as if I’d insulted her. It was just impossible to get any human connection.”

Given this, and the weaknesses exposed during the election, Sturgeon is scathing about how the Conservatives fought the campaign, putting May’s character and competence front and centre. “The people around her must have known that vulnerability,” she says. “God, we all make mistakes and we all miscalculate things, so this is not me sitting on high, passing judgement on others, but don’t build a campaign entirely around your own personality when you know your personality’s not capable of carrying a campaign… Even if you can’t see that yourself, somebody somewhere around you should have.”

Sturgeon might not be in May’s beleaguered position but she has problems. Her demand in March, at a press conference at Bute House, Edinburgh, for a second independence referendum by spring 2019 was a serious mistake and it has left a dent in what had seemed her impermeable personal popularity. Polls show support for the SNP and independence now share a similar downward trajectory. Over the next three years, the First Minister must persuade a sceptical electorate that her party deserves a fourth consecutive term in government.

Does she regret demanding another vote on separation?

Here she gets as close as she will go to a mea culpa. “Obviously I’m thinking pretty deeply about it. I think Brexit is a complete and utter car crash – an unfolding disaster. I haven’t changed my views on that, and I think it’s deeply wrong for [Scotland] to be taken down that path without the ability to decide whether that’s right or not.

“I recognise, as well – and it’s obviously something I have reflected on – that understandably people feel very uncertain about everything just now, partly because the past few years have been one big decision after another. That’s why I said before recess that I will not consider any further the question of a second referendum at this stage. I’m saying, OK, people are not ready to decide we will do that, so we have to come back when things are clearer and decide whether we want to do it and in what timescale.”

Will she attempt to hold a second referendum? Could it be off?

“The honest answer to that is: I don’t know,” she says. Her expression of doubt is revealing.

Would she, however, support a second EU referendum, perhaps on the final separation package? “I think it probably gets more and more difficult to resist it,” she tells me. “I know people try to draw lots of analogies [between the EU and independence referendums], and there are some, but whatever you thought of the [Scottish] white paper, it was there and it was a fairly detailed proposition.

“One of the beautiful things about the independence referendum was the extent to which ordinary folk became experts on really technical, big, macro­economic positions. Standing on a street corner on a Friday morning, an ordinary working-class elderly gentleman was talking to me in great detail about lender of last resort and how that would work. You can say the white paper was crap, or whatever, but it was there, people were informed and they knew what they were voting for.

“That was not the case in the EU referendum. People did not know what they were voting for. There was no proposition put forward by anyone that could then be tested and that they could be held to account on. The very fact we have no idea what the final outcome might look like suggests there is a case for a second referendum that I think there wasn’t in 2014. It may become very hard to resist.”

Sturgeon hasn’t found the Brexit process “particularly easy”, especially when the government at Westminster is in the grip of what is becoming an increasingly vicious succession battle. The SNP administration has repeatedly clashed with the relevant ministers at Westminster, whom it says have given little care to Scotland’s particular needs. Sturgeon’s view of David Davis, Liam Fox and Boris Johnson is not rosy.

“Probably not a day goes by where I don’t look at them and think, ‘What the hell’s going on?’” she says. “That’s not meant as a personal comment on their abilities – although [with] some of them I would have personal question marks over their abilities. But they’re completely paralysed, and the election has left them in a position where you’ve got a Prime Minister who has no control over the direction of her government, and you have other senior ministers who are prepared to keep her there only because it’s in their short-term interests to do it. If you’re sitting on the European side of the table now, how can you have a negotiation with a government where you don’t actually know what their position is, or whether the position you’re being told across the table is one that can carry support back at home? It’s a shambles and it’s increasingly going to be the case that nothing other than Brexit gets any bandwidth at all. It’s really, really not in the interests of the country as a whole.”

***

This is an accusation that is directed at the SNP, too – that the national interest takes second place to its constitutional imperative. It is undoubtedly something that Sturgeon considered over the summer as she sought to rebalance her administration. As a result, the programme for government unveiled earlier this month was impressively long-term in places: for example, its promise to create a Scottish national investment bank, the setting of some ambitious goals on climate change and the commitment to fund research into a basic income.

Most striking, however, was Sturgeon’s decision to “open a discussion about… responsible and progressive use of our tax powers”. With the Scotland Act 2016, Westminster passed control over income tax to Holyrood, and Sturgeon intends to use this new power.

“For ten years,” she says, “we have done a pretty good job of protecting public services as best we can in a period of austerity, while keeping the taxes that we’ve been responsible for low. We’re now at a stage where austerity’s continued, we’re going to have economic consequences from Brexit, we all want good public services, we want the NHS to continue to have strong investment, we want our public-sector workers to be paid more, we want businesses to have the right infrastructure. How do we progressively and responsibly, with the interests of the economy taken strongly, fund our public services going forward? Most people would think right now that there is a case for those with the broadest shoulders paying a little bit more.”

I wonder whether the success of Jeremy Corbyn has influenced her thinking – many expect that a revival of Scottish Labour would force the SNP to veer left (it will also be interesting to see how Westminster reacts to Scotland raising the top rate of income tax). “It’s not particularly Corbyn that’s made me think that,” she insists, a little unconvincingly.

Isn’t Sturgeon concerned that making Scotland the highest-taxed part of the UK could undermine its competitiveness, its attraction as a place to live and as a destination for inward investment? “We should never be in a position where we don’t factor that kind of thing into our thinking, but you talk to businesses, and tax – yes, it’s important, but in terms of attracting investment to Scotland, the quality of your infrastructure matters. Businesses want good public services as well, so it’s the whole package that determines whether Scotland is an attractive place to live and invest in and work in,” she tells me. “It’s seeing it in the round. The competitiveness of your tax arrangements are part of what makes you attractive or not, but it’s not the only part.”

As for the immediate future, she is upbeat. She believes that Ruth Davidson, her main rival, is overrated. “I think Ruth, for all the many strengths people think she might have, often doesn’t do her homework very well,” she tells me. “From time to time, Ruth slips up on that… Quite a bit, actually. I know what I want to do over the next few years, and I’m in a very good place and feeling really up for it. After ten years in office, it’s inevitable you become a victim of your own success. What’s more remarkable is that, after ten years, the SNP still polls at least 10 and usually 10-15 points ahead of our nearest rivals.”

Author's note: Shortly after this interview went to print, the SNP got in touch to say that Nicola Sturgeon’s comment, ‘the honest answer to that is: I don’t know’, was about the timescale of the next independence referendum and not whether there would be one. The misinterpretation was mine.

Chris Deerin is the New Statesman's contributing editor (Scotland). 

This article first appeared in the 19 March 2007 issue of the New Statesman, Trident: Why Brown went to war with Labour