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by Mike Hough
9th April 2021

The Police, Crime Sentencing and Courts Bill is an extensive piece of legislation. Many provisions can be thought of as good housekeeping, and other parts look like sensible, progressive moves – for example, reducing custodial remands of young people and strengthening the protections offered to them against abuse from people in positions of trust. However, the provisions on public demonstrations have attracted well-deserved criticism, and those on custodial sentences look like a collection of ill-thought-through crowd pleasers that will achieve very little at considerable cost. This article offers some thoughts on the legitimacy of these two sets of provisions.

Public order provisions

The main provisions extend the range of conditions that senior police officers can impose on protest marches and assemblies; they create strict liability offences for disregarding these conditions, and permit the Secretary of State to define what terms like ‘serious disruption’ and ‘serious unease’ mean in the context of enforcing them. Like the emergency powers for dealing with the pandemic, they sketch out in primary legislation general powers which will later be fleshed out in – inevitably less scrutinised – secondary legislation as Statutory Instruments. A better approach would have:

  • ensured thorough consultation about the planned changes;
  • drafted the bill so that the primary legislation clarifies precisely what is to be criminalised;
  • avoided loose and subjective terms like ‘causing serious unease’;
  • avoided reliance on the discretion of senior police officers in setting ad hoc conditions that are attached to specific protests;
  • set a legislative timetable that permitted effective parliamentary scrutiny.

These provisions have been presented simply as sensible and necessary responses to weaknesses in outdated legislation that the police have drawn to government attention. Increasingly, however, it strikes me that the public order provisions in the Bill are actually part of a broader political strategy to undermine the increasingly dominant public discourse about racism and about the climate emergency, which respectively recognise that that the history of British colonialism should not be a source of pride, and that industrialised countries have an obligation to take rapid action to tackle climate change.

A month ago, I would have argued that anyone advancing arguments of this sort had simply fallen victim to left-wing conspiracy theories. However, the recent report by the government’s commission to examine race and ethnic disparities makes it hard to resist the conclusion that the government is committed to a form of ‘culture war’ against Black Lives Matter and those questioning the historical and current achievements of Britain. I suspect that targets also incorporate climate activists and, in particular, Extinction Rebellion. The aim is not simply to reduce particular forms of harm, but to portray those who are responsible variously as extremists, naysayers, cynics, hooligans and outright criminals.

Whether the government could ever have got these provisions into place without serious challenge is doubtful, but it is clear that they have been badly wrongfooted by events surrounding the first and second readings of the Bill. First, the tragic murder of Sarah Everard in early March and the subsequent charging of a serving Met Police officer with her murder triggered the emergence of a new movement demanding safety for women, Reclaim These Streets, which resulted in vigils across the country, including one on Clapham Common on 13th March. The firm policing of this aroused intense controversy. Matters were made worse when a further story broke about allegations by two serving officers that they had been raped by a male colleague in 2017. Finally, there were several Kill the Bill demonstrations, media coverage of which focused on the violence and criminality of protestors; the police had to apologise for these misleading reports.

The upshot of these events in combination is that there is now an increasingly solid consensus, at least amongst activists seeking action to reduce climate change and social justice for minorities and women, that the Bill will very substantially curtail protests, and that the police cannot be trusted to exercise their discretion fairly in the policing of protest. These groupings will not confer legitimacy on the relevant legislation; the likelihood that it will secure compliance is remote, at least on the part of an important minority of activists; and the chances that it will actually increase levels of protest are high. It will become a running sore in police–public relations. The risks in simply pressing ahead with the Bill in its present shape are serious enough that any responsible government should simply ‘press the pause button’, withdraw the relevant clauses from the Bill, and launch some serious consultation about these provisions. The forthcoming Royal Commission on Criminal Justice might provide a vehicle for debating these difficult issues more openly and more fully.

The provisions relating to custodial sentences

If the Bill has triggered a crisis of legitimacy relating to the laws about public protest, the government has concocted a crisis of legitimacy about the sentencing of serious crime to justify the Bill’s provisions about custodial sentences. Key provisions are to:

  • widen the criteria for passing whole-life orders on those who have committed premeditated child murder;
  • broaden the ambit of whole-life orders to include young adult offenders, where appropriate;
  • extend the length of time spent in prison for any offender given a discretionary life sentence;
  • Increase the starting point for release of young offenders convicted of murder, dependent on the age of the offender and the gravity of the offence;
  • ensure that any charges of criminal damage involving damage to public memorials can be dealt with by the Crown Court, thus enabling a maximum ten-year sentence;
  • allow judges less ‘wriggle room’ in sentencing below the mandatory minimum for those crimes that carry mandatory minimum sentences;
  • extend the proportion of time served for serious sexual and violent offenders from a half of the nominal sentence to two thirds. This provision will bring the proportion of time served by this group into line with those serving longer determinate sentences.

In contrast to the public order provisions in the Bill, the government did consult over these provisions, at least by publishing a White Paper. Many organisations drew attention to a range of problems, though the proposals reappeared largely unchanged in the Bill. (The Sentencing Academy has provided an excellent analysis of the provisions here.) Key objections have been that the Bill’s proposals will fail to reduce crime; like previous government reforms, they will lead to ‘sentence inflation by the back door’, and will lead to very complex release arrangements, with the same nominal sentence leading to different amounts of time served for different crimes. Whether the levels of sentence inflation are good value for money is totally ducked in paragraph 77 of the government’s impact assessment:

“The PCSC Bill measures could together affect levels of overall crime through deterrence, incapacitation and rehabilitation. There is, however, limited evidence that the combined set of measures will deter offenders long term or reduce overall crime.”

This is a surprising – if accurate – statement of the relevant evidence to find in a government document justifying its legislation. Given this lack of evidence, the impact assessment has offered an alternative justification – that the public believes that judges are too soft on crime, and judges need to toughen up if they are not to lose their legitimacy. Julian Roberts and I produced a British Crime Survey report for the Home Office almost 25 years ago showing that most people did indeed believe that in general the courts were too soft; however, when asked to ‘pass sentence’ on specific cases, their average sentencing preferences were broadly in line with then-current practice. After marked sentence inflation since our report was published, the Crime Survey still shows that people in general think that the courts are too soft. This is no surprise. We know that most people are ill-informed about sentencing practice, getting information mainly from media reports of newsworthy – and thus atypical – cases. This is why public opinion has changed very little over a quarter of a century in the face of very substantial uplifts in sentence severity, which went unnoticed by the public. My best guess is that investing in increasing sentence severity – whether by increasing sentence length or time served – is unlikely either to reduce crime or to lead the public to confer greater legitimacy on the courts.

Mike Hough is Emeritus Professor in the School of Law at Birkbeck, University of London.

 

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