Good afternoon and welcome to this afternoon’s session of the Justice Select Committee, in which we have the pleasure of interviewing David Gauke, whose Independent Sentencing Review was published recently. Before we go into questions, as usual, we members of the Committee will do our declarations of interest, starting with Sir Ashley Fox.

Thank you. Ashley Fox, Member for Bridgwater. My interests are as declared on the register.

Afternoon. I am Pam Cox, MP for Colchester. My interests are declared on the register.

Good afternoon. I am Linsey Farnsworth, Member of Parliament for Amber Valley. I was a Crown prosecutor for the best part of two decades before coming to Parliament, and my interests are as in the register.

Andy Slaughter. I am Chair of the Committee. My interests are that I am a non-practising barrister. I am the patron of two justice-related charities, the Upper Room for ex-offenders and Hammersmith Fulham Law Centre, and a member of the GMB and Unite trade unions.

Good afternoon. I am Warinder Juss, Member of Parliament for Wolverhampton West. I am an executive council member of the GMB trade union, member of various APPGs, and other interests are as recorded on the register.

Thank you very much. We will go straight into questions. If you want to, Mr Gauke, in answer to the first question say anything about your own background or the work you have done in the review, please do, but I think that is a matter of record. Before we get into the weeds and the detail of your report, can I just ask one or two more general questions? You were Justice Secretary famously in a previous existence. Did you foresee the prison system getting to its current breaking point?

There was always a risk that that would happen. At the point at which I was Justice Secretary, the prison population had stabilised and had been stable for some time, but there were projections that it was likely to increase. It was in my time that we announced the building of HMP Five Wells, as it was to become, so there was a response in terms of increasing prison capacity. However, I was also very conscious in my time not to increase demand pressures on the prison population. I was exploring issues like reform of short sentences and so on to try to reduce demand in future. What was clear to me at the time was that you could not increase demand without substantially increasing supply. I think you have to do one or the other. My focus, notwithstanding the Five Wells announcement and preparatory work for what turned out to be HMP Fosse Way, was on trying to reduce demand back then.

There are a number of different recommendations that are designed at reducing the prison population. According to the sentencing inflation report of the former Lord Chief Justice, probably the main reason for the growth in the prison population is the increase in the length of sentences, particularly longer determinate sentences, which has been very significant. You do not really deal with that in the report. Why is that, and is that not missing an opportunity?

We did consider that. I think you are right to make that point. It was in terms of what has driven the increase in the prison population, indeed that was an argument that we made in our interim report, which we published in February. Given that we had a relatively short period of time in which to produce this report, given that the pressures on the prison population are urgent, and given, we believe, the difficulty in creating a consensus behind reform for particular offences, we too the approach that we did, which no doubt we will talk about this afternoon. It is also worth pointing out that I think the increase in murder sentences, particularly in the 2003 Criminal Justice Act, had had a big impact on sentencing across the piece. Sentences for murder were outside our scope. We concluded that, rather than trying to look at this offence by offence, we would take a broader view. We did receive representations, for example, that sentence lengths for drug trafficking were notably long compared to other offences, but we also received representations wanting prison sentences to be lengthened in some areas. We felt, given our numerical objective, if you like, the better, safer, easier course to pursue was looking at release points and short sentences and so on rather than an offence-by-offence review. I think there is a strong case for doing that, but we did not have the time and resources to do it.

That is very clear. The measures you did suggest came to, as an aggregated the effect on the prison population, a reduction of about 9,800 places, which is very close to the 9,500 that is seen as the gap between the increasing supply and the increasing demand. It would only take a very small miscalculation or variation in that for the efforts that you have made not to cover that gap. Is that of concern? How robust are your figures, do you think?

In terms of the robustness of the numbers, just to say briefly a word or two about the process that we followed. We had a team of analysts who were seconded to us and who went through the same processes that would have been done if this had been produced directly by the MoJ. Yes, there is a degree of uncertainty, but we have tried to be reasonably cautious on the numbers here in the assumptions that were in place. It is also the case that we have not given any credit, as it were, for improvements in reducing reoffending. There is a lot in this report that is about rehabilitation, and measures to reduce reoffending. If those come to fruition and are as effective as they might be, I would be hopeful that we would deliver more than 9,800. But yes, I hope that is a helpful explanation. I am conscious that if we had come up with a larger number, no doubt people would be saying, “Well, we do not need to do this either.” These are as robust as I think they can be in these circumstances. I accept that it may deliver more, it may deliver a few less. There are also a few measures in there that we have not put numbers on because they could not be robust; for example, the way we treat foreign national offenders. We recommend that more of them are deported earlier. We have not put a number on that. There is no doubt that that will make some difference and add to the 9,800, but we did not have a sufficiently robust number. There is also a number for deferred sentences as well, but again, we did not have a sufficiently robust number to add to it.

Thank you very much for that. We will come back to reoffending a bit later, but now we will go to Pam Cox, who is going to ask some questions on earned progression.

Thank you very much, Mr Gauke, and to your team also for that review. I would like to talk about the earned progression model. Many of us feel that it is one of the most important aspects of the review. Could you briefly outline what the earned progression model is and outline the evidence that your team drew on to determine its likely effectiveness?

In terms of the earned progression model, for most offenders with a standard determinate sentence, the early point at which they would be released would be a third of the way through their overall sentence. If they do not meet the behavioural standards required of them, that could be extended. Our proposal suggested that they then be released at up to 50%, which was the previous automatic release point. The Government have gone further, so that could be delayed beyond that and run through to the end of the sentence. In these most simple of cases, yes, it is essentially a third in custody, assuming they behave. Then there is a post-custody stage, at which they will be under close supervision from the Probation Service. That will be risk-based and the supervision will be closer at the highest risk period immediately after release. The level of supervision will vary, but in some cases this would be effectively home detention. In some cases we are talking about curfews, about much greater use of electronic tags, and so on. That is the standard middle third. Then the final third is the at-risk stage, where it will be very much a light touch in terms of supervision, but if they reoffend over that period then they are at risk of returning to custody. That is the simple case. There are offences where release dates were changed in 2020 and 2022. This is for standard determinant sentences for some serious sexual offences and some violence offences, and the release point there is 50%, not a third. That is broadly how the model will work. In terms of what we have based this on, we looked, for example, at the way in which incentives are used in other jurisdictions. You will be aware that I, alongside the Lord Chancellor, visited Texas in February, where incentives are a bigger part of the system there. You will also be aware that one of our panel was Michael Spurr, who brings a huge amount of experience to this, having previously run HMPPS and having had a long and distinguished career in this field. We made use of his experience but engaged very strongly with international evidence and so on. We do believe that some incentivisation within the system is beneficial.

Do you think that this is going to change the nature of the relationship between prison staff and inmates, if prison staff are being asked to determine if someone has met the criteria or not for earned progression?

In terms of that relationship, we have to remember that at the moment there is already an adjudication regime and prisoners can behave in such a way as to extend their time in prison. We have been very clear in the report that our expectation is that most prisoners will be released at the earliest point, so for most of them a third of the way through their overall sentence. In that sense, I do not think it should fundamentally change the current relationship. I would like, over time perhaps, the demands that are placed on prisoners to be increased as the Prison Service is in a stronger position to do that. Clearly, it is for the MoJ to make sure that the system runs fairly and that there are no biases within the system, and that needs to be closely monitored and scrutinised. However, by and large, I think it is one that the Prison Service will welcome. Certainly, I had conversations with the Prison Officers’ Association, and they were sympathetic to a move in this direction.

One of the areas in which a prisoner could demonstrate earned progression would be through positive engagement with prison programmes. We have heard many times on this Committee how limited access is to those programmes and the limitations on access to purposeful activity is very serious. Do you think that is going to be an impediment to the success of the scheme?

I think it is a very legitimate issue. It is about prison programmes as a whole. In the specific context of these proposals, I do not think it will be that much of an impediment in the sense that we are not going into this making recommendations of, “Here is a demanding set of programmes that must be met in order to consider an offender to be good”. The assumption is that they will leave at the earliest opportunity, they will be released at the earliest opportunity, and if there are not programmes there that is not going to be held against the prisoner. Over time I would very much like us to be in a position where there were fuller programmes, stronger programmes, greater availability, and perhaps that bar could rise. As a matter of practicality, if there is a failure to deliver programmes, that will not jeopardise a prisoner being released at the earliest opportunity.

Do you feel that prisoners who are suffering from mental health issues or challenges would be equally able to benefit from this reform?

There is a challenge here in that if those mental health difficulties manifested themselves in bad behaviour in prison, violence towards prison officers or other prisoners, then that is likely to have an impact. I do not think one can get away from that. There are standards that are expected and bad behaviour will have consequences, even if that bad behaviour is as a result of mental health difficulties and so on. I am keen that, as this is implemented, it is delivered in as comprehensive and sensitive a way as possible but, as I say, bad behaviour is still bad behaviour.

Thinking about the impact of this on victims, how do you think this model should be communicated to victims and the public, to reassure them that justice is still being served?

One of the messages that came across very strongly to us over the course of the review period is that communication with victims, particularly about sentence length, is not all that it might be. I think partly that is to do with the complexity that we currently have within the sentencing regime. Some of that complexity I hope we have addressed, but there is still probably more that can be done. I think it is unfair on victims if they do not have a realistic expectation and understanding of when an offender is going to be released. I think we need to do much more to be transparent with that. Sometimes one almost senses there is a reluctance to set out that this is the earliest date at which somebody could be released. I think we need to be fair to victims and clear about that within the system. I appreciate that within the courts very often a judgment does set out what the earliest release point might be, but I think we could be clearer. One of the things that we strongly recommend is that there is more transparency about sentencing length so that victims have a better idea of when an offender could be back in the community.

The final one for me, and we will pick this up later as well, is about the impacts on the Probation Service of, in effect, early release. How do you think probation will need to alter to cope?

We are clear within the report that probation is going to have a vital role to play within this. Probation is also under strain and that is why we suggest a whole set of reforms for probation. We make the case for additional resources for probation that, to be fair to the Government, has now been announced. What we argue for in the probation system is that the focus of their efforts should be at the, if you like, highest risk point, which is the period immediately after release. That is when a lot of ex-prisoners reoffend. That support needs to be there at that point. There are other issues that are connected with this, greater use of approved premises and so on. There is no doubt that if you are moving people from custody to the community it is necessary for what happens in the community to work. Although this was a sentencing review and we wanted to stick to our terms of reference, we did spend quite a lot of time on, and quite a lot of the report is focused on, how probation should be able to cope with this, whether that is having the resources they need, making better use of technology, or redeploying resources in the most effective way. That is going to be vital in delivering this.

This is a very radical change to sentencing policy, and although in the report you have explained what you think the advantages of it are, both in terms of prison numbers but also being a better system, are there not possibly unintended consequences? One of the things that is in the system now is, for most prisoners—not for IPP prisoners—a certainty about their release date, whether it is for victims, the serving prisoners themselves or just for the system. It is a much more fluid and subjective environment because you are reliant on other people to make judgments about whether your behaviour is good enough for your period in custody to go down or whether it needs to go up.

Of course, yes, the release date will depend upon behaviour. To some extent it does already, but yes, there is a shift there. Bear in mind also the level of complexity that we have within the system. There are prisoners, for example, who are released 20% of the way through their sentence at present to go into home detention curfew. We have seen SDS40, where the release date has moved from 50% to 40%. We have seen pieces of legislation in the last five years that have changed release dates and, in some cases, retrospectively. The point you make about a lack of certainty as to when someone is going to be released is a criticism I think that could be made of the existing situation. To some extent this does give prisoners more control. They will know at the point that they are sentenced that, as long as they behave, they will be out on a particular date. The great challenge and great uncertainty for prisoners and victims and so on is if we have a position where we allow demand to exceed supply. At that point you are in a world of emergency early releases. Of course, that gives nobody any certainty whatsoever, and the authorities very little opportunity to plan.

That was my point: under home detention curfew you could be released after serving 20% of sentence, whereas the minimum period is going to drop away, is it not?

Yes, it is.

It will be a third of the sentence, though there is a possibility that it could not be a third but a longer period. Is there not a real risk here that you will not achieve the numbers for those very reasons? They may be complex at the moment but they are clear, whereas there is this shifting sands subjectivity in the new system, which could end up with more people in prison for longer than you anticipate.

To partly come back to one of your earlier questions, Chair, we, of course, have taken into account the fact that home detention curfew at 20% would no longer be available under our plans, and that is factored into those numbers. Yes, I accept that somebody might think they are getting out a third of the way through their sentence and they get out much later, but they have a responsibility, if you like, to avoid that from happening. They should be given the opportunities to avoid that from happening, and we have made significant progress with the regime as a whole in simplifying the whole issue of release dates. Certainly, anecdotally we heard evidence of victims and offenders and the system as a whole struggling with the current complexity of the point at which an individual offender might be released.

As a victim now, should you anticipate that the perpetrator of an offence against you will be released after a third of their sentence and rely on that as a date, and then if they do not come out—I am just thinking about how that part of the system works.

Yes, accepting that victims of the more serious sex offences and violence offences—and, of course, there is a different regime for extended determinate sentences, but yes, for the standard determinate sentence in which someone is in the earned progression model where the earliest release date is a third, I think victims should be informed that that is the date on which you would expect the offender to be released.

I have a couple of questions on reducing the use of short sentences, which is another proposal. The previous Government had a similar proposal, but that was legislation with a presumption against short sentences. What you have said is that short sentences under 12 months should still be provided for in exceptional circumstances. Can you just explain what the difference between those two models is? Yours does not quite go as far as Alex Chalk’s.

They are similar; they are both trying to address the same point. I note that those previous proposals certainly went through Second Reading of the House without any significant objection. Where they are different is that we are placing perhaps greater discretion with the courts in determining what makes an exceptional circumstance. Rather than a system that essentially says you do not do it unless you fall within various statutory exemptions, we are giving that discretion. We do identify three areas where an exceptional circumstance might apply. They are not intended to be exhaustive but I think there are indications. If someone breaches a court order or reoffends while on licence or serving a suspended sentence, or in domestic abuse cases where the courts determine that the victim needs a period of respite, we think that essentially the courts should be discouraged from using short sentences for good evidential reasons. It is the same argument that I think Alex Chalk would have been using a year ago and indeed now. The courts should have that discretion where they think an exceptional circumstance applies.

Have you talked to the Lord Chancellor about what the timeline is, because this will require legislation, won’t it?

I am assuming that we will see legislation soon, but it is not for me to specify. The assumption, when I took this on, was that legislation would need to be completed this year for it to take effect by spring of next year, which is essentially the point where we are currently projected to run out of spaces.

Even though they are not a large part of the prison population, women prisoners do seem disproportionately to serve short sentences. Is this provision aimed particularly at them and do you know what the projections are of the effect of this particular provision on short sentences on the number of women in prison?

I am not sure that we have necessarily prepared—although we have overall numbers for the proposals that we have that will reduce the prison population, and the short sentences measure in itself will reduce the prison population by 2,000 or so compared to what it was previously going to be, I do not think we have necessarily broken that down by sex. You are right to say that women disproportionately get short sentences. They are likely, as a consequence, to disproportionately benefit from this measure. A very large proportion of women in prison, compared to men, are there for a short period of time. The combination of the short sentences measure and the greater use of suspended sentence orders, not to mention deferred sentences, are all likely to have a disproportionate effect. At the moment, something like 4% of the prison population are women. I suspect that percentage will fall as a consequence of these measures.

There are two issues that have been quite controversial, the first being the number of pregnant women and mothers of young children in prison. Do you think this will have an effect on those numbers?

Yes, I do. There may well be exceptional circumstances where the state has no option but to put a pregnant woman in prison. If one takes into account all the factors, it is something that one wants to avoid, if at all possible. Greater use of deferred sentences, I think, would be of particular relevance here. Greater use of suspended sentence orders, again, very useful here. Yes, I would anticipate that this will result in a smaller number of pregnant women in prison.

How do your recommendations sit alongside the recent controversy over pre-sentence reports in the Sentencing Council’s guidelines?

I do not think that there is a contradiction. I understand where the Government are coming from in terms of guidance on pre-sentence reports. I suspect, as a matter of practice, that in the vast majority of cases courts will want pre-sentence reports for pregnant women. By the way, there is good reason why courts will want pre-sentence reports for pregnant women. I do not see particularly a contradiction or a tension between the two. I do think the effect of our recommendations will be to reduce the number of pregnant women in prison.

Finally from me, although we have been talking about the disadvantages of short sentences, including the high recidivism rate, the Domestic Abuse Commissioner and the Victims Commissioner have emphasised that they can be important in giving victims of violence against women and girls respite. Did you look at that issue? Did it affect your recommendation?

We did, and that is why one of the exceptions that we identified in short sentences was exactly that point. We have generally not taken the approach that one should have lots of carve-outs and different approaches to different offences, but I see the argument that there are circumstances, particularly where we have an abuser, and a victim and a relationship has come to an end and the victim needs time to sort herself out, which could well constitute that. There will be times where that will constitute an exceptional circumstance and the courts would want to take that into account in determining the sentence of the offender.

Could I just come back to the short custodial sentences for a couple of supplementaries, please? Am I right in thinking that the rate of reoffending, which I understand is about 59% for those being sentenced to a short custodial sentence, is that the main reason why you want to avoid those sentences?

Yes, and this was a view I held when I was Justice Secretary some years ago. When one looks at the evidence here, what tends to happen with a short sentence is that the circumstances that might help somebody rehabilitate are reduced. We know that what tends to drive rehabilitation is a job, a home and strong family ties. In a short sentence there is no time to do any rehabilitative work within prison, but if someone has a job, they lose it. If they have a home they lose it. Family ties are often put under strain, sometimes to breaking point. It is no great surprise that what we see is people coming out after a few weeks and months in prison and very quickly reoffending. It is that concern that it is ineffective if we are judging this by whether it reduces crime.

I was interested by the fact that the most common offences for short sentences are shoplifting, at 13%; assault of an emergency worker; possession of an article with a bladed point. The public expect people who persistently engage in that activity to be punished. Did you consider the issue of deterrence, in that if you are going to say to persistent shoplifters, “You are never going to go to prison” it will result in an increase in these offences being committed?

Yes, we did consider all that, and when we say if someone breaches a court order or reoffends while out on licence or having received a suspended sentence, that is important. We are not saying shoplifters will never go to prison. What we do know is those persistent shoplifters who are ultimately sent to prison come out and a large majority of them shoplift again. Yes, we have given the community a few weeks of respite perhaps, but we have not done much to solve the problem. Some of the things that we consider within the report is that greater use of intensive supervision courts works well with these prolific offenders. I think it is also important to bear in mind that community sentences should genuinely punish people, so punishment does not begin and end with prison. We have recommendations there about ways in which community sentences can be more effective, and, in some cases, tougher. Of course, the people we are talking about here very often are addicts, whether that is of alcohol or drugs, and a focus on addressing that addiction is also relevant. It is not being soft on anyone. That is just how we are going to solve this problem. Greater focus on, for example, drug treatment could make a big difference in terms of reducing that reoffending.

It is generally understood that 80% to 90% of those in prison across England and Wales are reoffenders with previous convictions and custodial sentences. It appears to me that if you deal with the issue of reoffending, you immediately deal with the issue of having overcrowded prisons. Having recalled prisoners also adds to the overall prison population. I think from March 2018 until this year the number of recall prisoners has doubled, and we have something like 13,500 now. Your review found that prisoners felt that the recall process was unfair. When I visited Featherstone Prison near Wolverhampton, I spoke to prisoners who were on recall. They were complaining about having been recalled when they have missed a train by five minutes and staying there for long periods of time. You have recommended that we have a new model for recalling prisoners who are serving standard determinant sentences. What evidence have you looked at in deciding what model we should have? Do you also think that that will have an effect on reoffending?

First, you are right in terms of the importance of reducing reoffending. If we are serious about reducing crime, then we have to do everything we can to reduce reoffending. I think there are ways in which we can be more effective and there are other jurisdictions that have a better record in terms of reoffending rates. In terms of recall specifically, again, you are right to highlight the very substantial increase in the use of recall. Yes, it has more than doubled since my time as Justice Secretary, and if you went back a generation or so before that, I think in 1993 there were fewer than 100 prisoners who had been recalled. Recall will still continue to be a significant part of our system. We have recommendations that will reduce the use of recall quite substantially, but the recall population will still be above what it was in 2018 by some distance. The worry that I think we heard again and again is that recall perhaps for inexperienced and overworked probation officers can be the very easy option. If ever you have somebody who is out on licence and they have done something wrong, then the safest course of action is to send somebody back inside. I also met prisoners who had been recalled time and again, sometimes for very minor issues, in some cases issues that did not appear to be their fault. I think the problem that we have with the current system or the system that we had is twofold, is that you get some people who are going inside for relatively minor reasons, for a short period of time, 14 days, 28 days. All the points I was making about short sentences and so on apply here. What can you do with somebody who is inside for 28 days? No real rehabilitation is done. They get released. They very often have lost the home that they might have had, so they are homeless, they are jobless, and you have a problem. That is one problem. Then the other problem are those who have a standard recall, which is potentially for the rest of their sentence, and they get lost in the system. They may well have deserved to be recalled, but they get forgotten about, and they are just there for far too long. Our recommendation is 56 days, and the hope and the expectation is that we will not get recall being used for very minor infringements. It is a more serious matter sending somebody back. That addresses those who got the fixed-term recall but you also have something that is not as long. People are not going to be lost in the system, for those who have a standard recall. We think what we are hitting is something that does what recall needs to do, a punishment, it is significant, not to be used lightly, but is a genuine deterrent and gives the system time to try to address the issues that caused the reoffending.

You mentioned prisoners being recalled for 56 days. Last month the Lord Chancellor announced that in the coming weeks there will be legislation to have the duration of recall limited to 28 days. Do you disagree with that period?

We have reached different conclusions. The view that we reached—and to be fair we reached that before the Lord Chancellor’s announcement—was that we felt that 56 days was the right period of time. Allowing prison authorities to do something with the offender that is useful in reducing reoffending is a deterrent that will not be used lightly. To be fair to the Government, they are dealing with the adult male population—the adult prison estates, I should say, set to be full in the autumn so they have had to come out with emergency measures. However, in terms of a long-term, sustainable approach, I stand by our recommendations.

I have a very short supplementary to that. There does appear to be a slight inconsistency there. Yes, the Lord Chancellor’s decision is effectively to have another short-term reduction in prison population, so perhaps that will not last. However, you have said clearly that sentences up to 12 months are not productive and to be avoided in most cases, but you are reliant on a period of just 56 days to be able to make some difference to a recalled prisoner. That does not seem—

First, remember that when we talk about a sentence for 12 months, what that means is four months inside in the typical case, at most, if you have the 12-month sentence. Of course, someone who is recalled is already known to the authorities. There should be more information on file and what have you. I think it is a reasonable approach to set it at 56 days. If you go much shorter than that, recall is too easily used. If you go much longer than that, people start to get lost in the system.

I was going to intervene again, but Linsey Farnsworth, you were going to ask about community sentences.

Yes, thank you. I would like to talk to you about community sentences. The review proposes an expansion to the use of community sentences. Having been in the criminal justice system before coming into Parliament, I am interested to hear what your view is on what implications diverting more people into the community would have on the Probation Service, which I am aware has been under quite a lot of strain for a significant period of time now.

No, I think it is a perfectly fair question and does come back to our earlier discussion in the context of the progression model. Yes, if we are moving people from custody to the community, whether that is at the end of the sentence or whether that is instead of a custodial sentence, that is going to place greater demands on the probation system. That is why we devote a whole chapter to that. Probation requires the resources. They need the technology. We need to ensure that qualified probation officers do what qualified probation officers can do and only they can do, if you like. If there is other work that can be done elsewhere, whether that is within the Probation Service or whether we can make greater use of the third sector, certainly my experience—and I suspect members of the Committee may have a similar experience—is that there are a lot of terrific charities out there very keen to help, making use of volunteers and making a real difference. I think there is more that we can do with those organisations to expand that. I think they probably can scale up quite rapidly in these circumstances. As to your point on whether this increases pressure on probation if community sentences are used more, yes, absolutely. We completely accept that, which is why we have to take probation—not just the Probation Service but the probation system—very seriously. It has to be valued. I think that has to be a key culture change. I know, just because I heard James Timpson make this point in two separate speeches last week, that that is very much the agenda he wants to pursue. I hope there is wholehearted support across the political spectrum for that.

That will presumably need more resource. You cannot just move monetary resources from the prisons into probation because we are still going to need the prison places because of the trajectory that we are going in.

Yes, I think that is a fair point and, to be fair, the Government have acknowledged it. I would make a broader point here, though. If you look at the cost of a prison place—on average £54,000 a year—there is an awful lot that can be done in the community for a lot of people for that sum of money. It has long been my view that this is an area ripe for public services reform, where we can get more for less, if you like. I think we can spend taxpayers’ money in a more effective way by relying less heavily on custody and more heavily on effective community action. From the perspective of a hard-pressed taxpayer, I think there are real opportunities here. Yes, certainly in the short term we have not as yet realised those gains. The prison population is not going to be falling under these proposals in the short term. There is a question of resources.

You have mentioned the third sector and opportunities there for bringing the third sector in more. I was interested in what you were saying earlier about the person, when they come out of prison, having a job, having a home, having strong familial ties. I think that goes for people serving a community penalty as well. They need those building blocks. I am old enough to remember the Community Justice Initiative under the last Labour Government, which was taking a holistic approach to sentencing or aiming to. If that is the case, that those building blocks need to be there, has your review considered the other services that are likely to be affected, local authorities, housing associations, police, for example, in making sure that those building blocks are there?

We do within the review, for example, make specific reference to the police on housing. Our focus is on the criminal justice system as a whole but, for example, we emphasise the importance of approved premises for those who are being released from prison. I appreciate your question is about community sentences, but as people move from prison into the community-approved premises, it can be crucial in terms of starting them off on the right footing. That is important. That period immediately following release is a moment of high risk for the offender and for society as a whole. It is important that we get that right.

If we can turn now to community sentence treatment requirements, the review highlights significant concerns about the lack of availability of those requirements. What assessment did the review make of the geographical availability currently for those and the funding across England and Wales for those programmes?

We do acknowledge that this is an area that is under pressure, that the evidence of the success of community sentencing treatment requirements is strong, and they are not necessarily evenly distributed. This is a point I suspect I might make again over the course of this session. It is for the Government to work out how best to implement this, and we have not tried to be prescriptive and say you have to do everything this particular way or that particular way. We do believe that these are important and effective and need to be more widely used. Again, I come back to the point about context in which prisons are very expensive. If these treatment requirements can be used effectively, they can relieve a lot of public spending pressure elsewhere. I think there is a real case about the efficiency of spending public money.

Last week we heard from healthcare providers about the opportunity to increase community sentence treatment requirements. I was just wondering to what extent the review adopts a public health approach to reducing reoffending.

I do not think we necessarily use that terminology as such, but it is important in an effective criminal justice system to understand what is driving criminal behaviour. I do not think that constitutes being soft or overly forgiving, but as a matter of being pragmatic, if you want to stop people reoffending—because that is the best way of reducing crime as we were discussing earlier—having an understanding of what drives that offending is important. Let’s be clear. There are some offenders who are incredibly difficult to stop reoffending. In those circumstances prison plays an important role. However, there are also some offenders where the issues can be addressed and we would be missing a great opportunity if we did not try to do something about that.

I do not know whether you would agree with me, but I think that in the circumstances where a sentence requires somebody to tackle the core reason for their offending and what is behind it, that is quite a tough sentence in my view. It is quite onerous on somebody, so it is not the easy option for them, is my view. I do not know whether you would agree with that to any extent.

I think there is a lot in that. That can apply at various levels, if you like. Whether we are talking about the relatively petty criminal driven by a drug addiction, that can be quite a tough thing to confront. I also recall in my first few weeks as Justice Secretary visiting Grendon and meeting very serious offenders there. The message, and you do hear this repeatedly—this is a prison, as I am sure the Committee will be aware, that focuses on therapeutic treatment for serious offenders. Talking to the offenders there, they would repeatedly say that this was the toughest time that they had had in very long sentences because they were being forced to confront their past in a way that they had previously not done. Just because something is pragmatic and effective does not make it soft. It can be quite tough as well.

That is helpful, thank you. Last week we also heard about community sentence treatment requirements, orders that were dual, so alcohol, mental health, and drugs, that they are quite popular in prisons because often prisoners will have a dual diagnosis. Does the review recognise that assertion that they are quite popular?

I would have to check precisely what we say, but yes, it is very often the case that offenders have complex needs or complex issues and one needs to address more than just one.

Shall I move on to the electronic tagging?

Yes.

I think we have votes soon but—

No, we are hopefully not voting until 4.00 now.

I am behind the times, I do apologise. We will move on to electronic monitoring tags, then. The suggestion of expanding the use of electric monitoring tags is clearly something that has been talked about quite a lot. Do you think it is realistic to expand the use given Serco’s history of poor performance in recent years?

Obviously, we were conscious of the concerns about performance in this area. Before we put out our recommendations we did speak to the MoJ and raise questions with officials as to how realistic it was that we could expand the use of electronic tagging as part of our recommendations. We were reassured that, yes, there have been problems, there continue to be issues, but at the moment those do seem to be being addressed. What we have set out, at least in the view of MoJ officials, is realistic, because you raise a very fair question. We wanted that reassurance before setting out our recommendations. Of course, there are challenges there and there are uncertainties, but the view is that this can be done.

How will the data be collected from electronic tagging in real time?

That is one of the areas where there is clearly much more work to be done. When I was Justice Secretary, I wore a tag for 24 hours or so and then the next day was able to look at my movements and so on. It was all very accurate, but that is largely how electronic tagging is still used essentially as a means of seeing what someone has done in the past rather than in real time. There is a lot of work that will need to go into making this more effective to use in real time, data sharing, co-operation between the police and the probation system. There are some real opportunities here over time, as technology develops. This is not necessarily going to be something that can be done from day one, but over time we should be in a position to be able to monitor much more closely at any one point anyone who has a tag, and where you have two people with a tag who are together, the authorities should be alerted of that, et cetera. There is much more that can be done and should be done over the years ahead. That movement towards this being a genuinely real-time system is important.

Thank you. We are looking at expanding the use of it, as you say, as technology improves. I am sure we will be doing more and more with electronic monitoring. I know that the review considered the Government’s pilot on electronic monitoring for perpetrators of domestic violence. What evidence did you find of its effectiveness in that arena, particularly given that the evaluation is ongoing at present?

As you mentioned earlier, there have been some challenges in terms of operation, but particularly if you look around what has happened in the rest of the world, there is a lot of very good use of electronic tagging. If I recall correctly, Australia has done quite a lot of work in this area. Particularly in the context of domestic abuse, it can provide much greater clarity to victims. There is an interesting debate to be had as to how much information victims want. Do they want to know if somebody is within a certain distance of them or does that increase anxiety? That is a debate to be had, but as I say, the opportunities here are considerable.

There have been some concerns raised about using tagging for domestic violence cases, particularly in circumstances where we hear about tags running out of power and offenders failing to maintain contact with the tagging side of things. With a domestic violence case, that gives a little bit of concern about safety for victims of domestic violence. Do you have concerns about that?

Again, it comes back to this point about operational effectiveness and some of the concerns that do lie there, but I come back to the point I made earlier, that we sought reassurance that those operational concerns are being met and that there is scope to expand it. Your point about it being particularly sensitive in the context of domestic abuse is a good one. It is very important that we get this working but, as I say, we have set out our recommendations. It is for Ministers to accept or reject our recommendations and then it is for officials to implement them, but what I am told is that they are confident they can make this work.

Considering Serco’s poor performance with tagging, which has been publicised, did the review consider looking at alternative providers of electronic tagging?

The view that we took as a review, we had quite a lot on our plate without getting into an assessment of various private sector providers. We certainly discussed the concerns about Serco’s performance but, as I say, we have to set out recommendations, Ministers have to decide what to accept, and it is for officials to work out how to implement that. That is not to say that we were insensitive to issues of implementation, we were not, particularly given some of the people who were on the panel, but it is not for us to make an evaluation of different private sector contractors.

Do you think there is a general concern? Electronic monitoring has to do a lot of heavy lifting here. It is about controlling the person; it is about the treatment; about whether they are complying with regulations on abstinence and things like that. I think there is more consensus that the technology is there, but whether it is Serco or not, that there just is not in the market out there companies who can undertake projects of this scale.

I come back to my earlier point, Chair. It is a perfectly fair question and one that we asked, if you like, “Can this be done?” There is confidence within MOJ that it can be done.

One last question from me, but moving away from tagging and on to women’s centres. What engagement did you have with the Women’s Justice Board when developing the recommendation to expand women’s centres?

I personally had a couple of meetings over the course of the review period with the Women’s Justice Board, to be fair, one immediately before we published, but to brief it on that. It would be fair to say that the Women’s Justice Board is very supportive of greater use of women’s centres, recognising their importance, how effective they can be, how they can divert people away from custody and how they can help reintegrate people into society. I think it is very much supportive of the emphasis we have placed on women’s centres, and I do think they can play a crucial role in addressing female offenders and improving rehabilitation rates, reducing reoffending rates and pressure on prisons.

Did the review identify any challenges regarding the competitive tendering process for specialist services for women?

I am conscious that this can be very complex. There are various sources of revenue. The nature of women’s centres, from the conversations I have had with those involved, is there is a lot of time that is spent fundraising and identifying potential sources of revenue. Again, I would come back to the point that we have not sought to, within our review, try to redesign the funding models of women’s centres. There is a lot that we had to cover without getting too much into the detail of any one particular matter. I accept your point, that that is a challenge for women’s centres, but again, we think this is an area that deserves support.

You surprise me.

No, fine. Yes, your campaigning did not go unnoticed, if I may say so. Our thinking here, and what particularly attracts me to our proposal, is that we don’t have very much data within the system. A domestic abuse case be a matter of assault, it might be criminal damage, but the system does not necessarily pick up what is domestic abuse and what is not. There does have to be a concern if we are not picking that up as a system. Could patterns of behaviour not be picked up? Somebody who might have a list of convictions for assault and criminal damage, if those are all cases of domestic abuse, that is something that the authorities need to know about. That is one of the arguments—and I think a powerful argument—for putting that flag in. It does give us more information, it does give us a better understanding of offending, both in aggregate at a macro level and at an individual level, so that when it comes to, say, a future conviction and a future sentencing, the sentencers are better informed as to the person they are dealing with here. We think that is important and it is right that that is there because it does seem that there is a gap, as you have long identified and argued, in our system and we do not have all the information that we need.

First of all, you are right in terms of the early release scheme that came in last autumn that it was not possible to exclude domestic abuse cases because the data was not there. The Government are right in saying that. Clearly, this does provide more data and therefore that does create more options, but it would be remiss of me not to point out that to some extent one of the key purposes behind this review is so that we are not in a world of emergency early releases, so that we are in a world in which we can plan this more thoroughly, so we are trying to get out of this place. Clearly, if the issue about exclusions previously was about not having data and this gives more data, that does give more options for a future Government in those circumstances.

Let me make two points on this. Look, as far as I am aware, this does give Government that data to make a judgment and to bring in exclusions. Can I also—at the risk of treading on controversial territory here—just raise the question about exclusions generally or different release dates for different offences? To some extent within our recommendations we have that, so that—

Not so much the respite point I was thinking, but there is an example of exceptional circumstances that I think is a very legitimate point. I was more thinking of the distinction we draw between those people who under the old regime were released two thirds of the way through their sentence rather than halfway through their sentence, which was a change made in 2020 and 2022. I think there is a question to be debated about whether the seriousness of the offence should be reflected in the overall sentence they get, or should it be in the sentence they get and the release date? I think a simpler system would be that the seriousness is reflected entirely in the sentence length rather than the release date. That would be more personal preference, that we start to say, “Look, this is an offence we, Parliament, particularly don’t like” and reflect that in the sentence length rather than both the sentence length and the release date, because the courts, when they pass a sentence, have all the information about the offender, the individual offence. I think they are better placed to make a judgment and that should be reflected in the sentence length, rather than Parliament coming along and saying, “This particular offence is particularly egregious so we are going to give it a later release date than it would otherwise have”. I am not sure that is where the general public mood is, but you see the distinction I am trying to draw here. I do wonder whether we would be better off just trying to focus on sentence length rather than release dates.

On that particular point, I do not see why not. I would also add, look, don’t get me wrong, there are certain offences where there are specific factors that do have to be considered. We have talked about the respite point. In short sentences, we make the case for greater use of domestic abuse courts. There is a case for greater educational training and understanding for judges of domestic abuse cases, so there is a lot there, and the report I hope is very sensitive to the issue of domestic abuse and how we deal with it. I just make a general point that we sometimes seem to want to apply—I worry a little bit about going too far down a route of an offence-by-offence approach to release dates when we rightly have an offence-by-offence approach already in the system with sentence lengths.

Stalking is itself a separate offence, so we have the data on stalking. Coming back to your earlier question, that one could identify who had been convicted of stalking and one could not identify who had been convicted of domestic abuse because it is a specific offence, I think that is the answer to that.

Yes. I don’t want to say anything inaccurate here, but if this was a domestic abuse case that was also stalking, I am not aware why that would not be flagged, but not every stalking case would be flagged as a domestic abuse case.

In a couple of contexts we make the case for use of specialist courts. I have talked about intensive supervision courts, but for domestic abuse courts there are particular factors. It is helpful to have an understanding of this offence, to develop specialist knowledge here. Again, when it comes to matters of implementation, it is for the MoJ—and in this case, HMCTS as well—to work out how best to implement it. We do not want to tread on the toes of the independent judiciary either, but we see the case for greater use of it. We think that this is something that could be effective in delivering justice and make that case, but when it comes to a lot of the implementation of it, again it is not for us to set out a detailed blueprint.

Thank you very much. Just a few more questions, if you have a little bit more time, and we will finish, I hope, in time for our vote. The review recommended that services for chemical suppression be piloted on a small scale, with evaluations produced before any decision is made to establish further services, but we understand that there will be a roll-out of the pilot of chemical suppressants to 20 prisons. The Lord Chancellor announced the possibility of mandating the use of medication. What is your view on that?

As you say, our recommendation was to build the evidence on this. Chemical suppressants are widely used in many jurisdictions. They have been used to a limited extent in this country as well. I think they can play a role for some offenders, not all sex offenders, but for those sex offenders where the issue is sexual preoccupation and they want to make use of this and they want to be freed from that sexual preoccupation, it can play a valuable role. I am conscious that the Lord Chancellor wants to go further on this; however, the collective view of the panel was that we would tread cautiously in this area, but we do think it has a role to play.

I think the review said that sexual offences are driven by power, control and aggression rather than sexual preoccupation.

Many are. Some are not, and that is where this is of relevance. In some cases it is about power and aggression and this is not the answer to those cases.

No, but a substantial increase in roll-out—I do not know how many pilots there are at the moment, but 20 is quite a big chunk of prisons—and then the possibility of mandation, are you comfortable with that?

There are various practical challenges with mandation that, truth be told, we did not look at closely or really at all because that was not our recommendation. To what extent those practical issues can be overcome, I am not well placed to judge.

Yes, it was. Without giving too much away, yes, it was discussed. One of my ministerial team was looking at this issue then, so this is not a new one to me.

At that time we felt that there were probably too many difficulties in delivering it. There were practical challenges and what have you, but pilots continued, so the evidence was still being built. We certainly did not close it down as an idea.

I think if you look at the drugs that we are talking about, this is quite widely used—of course, it needs to be—in many jurisdictions that make use of these chemical suppressants. We are not talking about the same drugs that Alan Turing was taking, as I understand it, and you have to remember that this is essentially a course of treatment that is undertaken voluntarily, as we recommend it, and the effects are temporary, which does raise other questions about how you address this as people are released from prison and what happens in the community. Those are points that need to be addressed in the continued pilots, but we are not talking about replicating the Alan Turing approach.

If we are in the context here of trying to address risk factors, let us take a person who is inside for looking at indecent images and they say, “Look, I want to remove my sexual preoccupation. I no longer want to have these sexual desires. I want to take these drugs that will address this”. That is clearly relevant in making an assessment of what the chances of them reoffending are. In that sense it is a relevant factor and the taking of these drugs I could imagine enabling someone being released earlier than they would otherwise be. I don’t know whether that quite answers your question, but you see the line between what is voluntary and what is responding, but that is an indication of a desire to rehabilitate that in itself is of relevance in determining whether someone is safe to be released or not.

What I would come back to is the recommendations within the review are about exploring the evidence on this further. As I say, a number of jurisdictions do this. My understanding is that in Poland they do make use of it on a mandatory basis, so a number of jurisdictions make use of it, as we have done on a small scale. I have heard many people in this field say, “We know people who have been desperate to rid themselves of these desires”.

I have a very quick question. I imagine that this is treatment that would only be offered to a persistent offender rather than a first-time offender or has that not been looked into?

Again, we have not specified, but let’s put it this way: if there is someone who is in prison, and given the types of cases that we are talking about, I would imagine they are likely to be persistent offenders. The point is that these are people who have a significant sexual preoccupation and that is the context in which this might be of some value.

Just on one other topic, there has been some criticism from victims’ groups about the outcome of the review, perhaps not surprisingly concerned because there will be quite a large number of people who would be in custody who will be out of custody as a result of it. Do you feel that you engaged with victims’ groups and that their views are reflected in the review?

Yes, we did. We had a number of roundtables. I met with the London Victims’ Commissioner and the Domestic Abuse Commissioner. We had a call for evidence, which many organisations responded to, including victims’ groups. We had a member of the panel, Andrea Simon, who was chair of the End Violence Against Women Coalition. We did engage. In the context of victims, yes, of course, I understand the concerns raised that people will be in the community rather than in custody. I would reiterate the point that there is more that we can do in terms of communicating with victims and I think we can improve that. We have many recommendations to that effect, particularly in the context of transparency of sentencing. I do not think it would do victims any good whatsoever to see a repeat of what we saw last year, where we had to have emergency early releases. That is not fair on victims. The messages that one gets overwhelmingly from victims is that they want to see fewer victims in future; they want to see lower levels of crime. The focus of our review is not just about dealing with the immediate prison capacity crisis, but also how we reduce reoffending, improve rehabilitation and have fewer crimes in future. Our ambition—and I hope this runs through the report—is to ensure that we have fewer victims in future.

To take us to the bell, you recommended the creation of an independent advisory panel on sentencing. What will that do that is different from what the Sentencing Council does? I should say that the Committee has previously endorsed that approach so you are pushing at an open door, but could you just explain the logic from your point of view?

Your Committee’s previous approach had some influence on our thinking. The purpose that we see of this independent body is very different from the Sentencing Council in the sense that it would make assessments of prison population projections and where they are going. It would look at new legislation brought forward by the Government in Parliament and what impact that is likely to have in terms of prison population and provide some independence to that. I would favour it performing something of a “what works” approach in identifying those programmes that are likely to be most effective in reducing reoffending and therefore reducing pressure on the prison population, so it brings it all together. Decisions would still have to be made by Parliament. It would still be for Governments to bring forward legislation, Parliaments to pass or amend that legislation, but the role of this body would be an advisory one to ensure that that parliamentary debate was as well informed and as evidence based as it possibly could be.

Thank you very much. I will draw the afternoon session to a close. Mr Gauke, thank you very much for answering all our questions, and thank you for being clear and concise in your answers. We might use it as a training video for future witnesses, I think.

Amazing what the freedom of being an ex-Minister can give you.

Yes. Thank you very much indeed. With that, I will bring the session to a close.