27 October 2020

Popular conceptions of imprisonment entail admission to prison for a continuous period. Some offenders are sentenced to immediate imprisonment – for example for six months. However, other jurisdictions have introduced forms of imprisonment which are served in the community. In Australia this is known as a Community Custody Order, while in Canada it is called a Conditional Sentence of Imprisonment. Offenders serving these sentences are required to comply with much stricter conditions than offenders serving community orders. For example, offenders serving these sentences are usually subject to a strict curfew and their movements are monitored by electronic monitoring. Finally, the consequences of breaching the conditions of the sentence are more severe: the offender is usually admitted to a prison.

These alternate sentences offer courts a sentencing option that is tougher than a community order, but which avoids the costs and adverse effects of a period of imprisonment. They are also much cheaper than a comparable period of imprisonment. In other countries these sanctions of ‘home confinement’ are used for offenders convicted of crimes serious enough to justify imprisonment but who also represent a lower risk of re-offending.

Two recent developments in England and Wales suggest that a similar sanction could become available to courts here.

First, as part of its recent White Paper on sentencing, the Government has proposed a House Detention Order (HDO). This is designed for offenders who have failed to respond positively to repeated community orders. The HDO would include a highly restrictive and lengthy curfew and the offender would be subject to GPS tagging and tracking – electronic monitoring. The Government intends that the new sanction would ‘provide a strong punitive response to crime in a way that current community sentences do not, while enabling offenders in training, education or employment to maintain those obligations’. However, at present, the Government is proposing that the HDO should be used only as an alternative to other non-custodial sentences. We believe that such a provision could have wider application and would urge the Government to consider expanding the remit of HDOs to include offenders who would otherwise have received a short custodial sentence.

For further information see: https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing

The second development is a proposal from the Centre for Social Justice for a new order called the Intensive Control and Rehabilitation Order (ICRO). Like the Government’s proposal this one would also involve GPS electronic monitoring, transdermal alcohol tags, and extended curfew requirements. The Centre for Social Justice argue that the ICRO would enable offenders to serve their sentence without ever being separated from their families – saving thousands of children from the trauma of parental imprisonment. It would also allow for individuals to engage in work and education programmes in the community, where 92 per cent of community learning and skills providers have been rated as ‘good’ or ‘outstanding’. In contrast, most prisons inspected in 2018–19 were rated as ‘requires improvement’ or ‘inadequate’ in terms of the overall effectiveness of their education, skills, and work provision.

The Centre for Social Justice argue for much wider applicability of the ICRO than the Government currently envisages for the HDO with the ICRO being a potential alternative to custodial sentences of up to four years (although the court would need to find exceptional circumstances in order to impose one in cases where the custodial sentence would be three years or more).

For further information see: https://www.centreforsocialjustice.org.uk/library/sentencing-in-the-dock-the-case-for-a-new-sentence-in-the-criminal-courts-of-england-and-wales