02/11/2011 18:57 GMT | Updated 02/01/2012 05:12 GMT

Why The Government Should Recall Their Original Plans for Criminal Justice Reform

The tough talking, it appears, is well and truly back. Last week, just a day after criticising them at the Home Affairs Committee, Ken Clarke announced not one, but two new mandatory sentences as part of the Government's amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill, which should finish its passage through the Commons this week.

In a post-riots climate, the Government's plans for a new mandatory life sentence, to be imposed for a second very serious violent or sexual offence, and for a mandatory minimum sentence of four months' imprisonment for 16 and 17 year olds convicted of certain knife offences, probably shouldn't surprise us. Giving its judgment on the 'Facebook rioters', the Court of Appeal recently upheld the legitimacy of deterrent sentencing, saying that the four year custodial sentences imposed on both were "fully justified".

Whilst we may not be surprised by the proposals, however, we should be worried by them. Reasserting deterrence as a valid purpose of sentencing could be the death knell for two important principles espoused by the Government in its criminal justice green paper only last year: effectiveness and proportionality.

In 'Breaking the Cycle', the Government promised to break from the "failed and expensive policies of the past", and to focus their efforts on "what works - the methods that actually reduce crime by reducing the number of criminals". To its credit, the green paper included a range of policies that backed up the Government's claims of adhering to evidence-based effectiveness, including plans to improve the employment opportunities of prisoners on release through more widespread implementation of work in prisons, as well as proposals for greater use of restorative justice in the adult criminal justice system, so that it is "a fundamental part of the sentencing process". We know that employment significantly reduces the risk of reoffending - a seminal report by the Social Exclusion Unit put the reduction at between a third and a half - and there's also robust evidence to support the effectiveness of restorative justice in this area: Ministry of Justice analysis has found that it can reduce the frequency of reoffending by around 14%.

Though rather less explicitly set out as a watchword for the Government's reforms, 'Breaking the Cycle' also highlighted the importance of proportionality. Marking out prison as a place for "serious and dangerous offenders", it nodded to the principle that the sanction imposed upon an individual for a particular offence should reflect the severity of the offence committed - a principle that is, surely, key to any system that purports to deal in criminal justice.

The introduction of two new mandatory sentences, however, suggests a shift away from both effectiveness and proportionality. As concluded by the last major government-sponsored review of sentencing, the Halliday Report, there is no empirical evidence for the effectiveness of deterrent sentencing. As longer-than-normal sentences that aim to deter potential criminals through their very severity, they also very clearly disrupt proportionality. Mandatory sentences also undermine proportionality by fixing a blanket penalty for certain offences, rather than allowing sentencers to take into account the specific circumstances of an offence and impose an appropriate sentence on the basis of this. Though those proposed by the Government come with the proviso that they should not be imposed if the court is of the opinion that this would be unjust, the presumption is, nevertheless, in their favour.

With these latest additions, the sensible, measured proposals set out by the coalition just under a year ago are becoming an increasingly distant memory. The Government would do well to recall the spirit of its original plans before important principles are abandoned for tabloid-pleasing toughness.