United Kingdom: deferred sentences – used again but not used enough

News this month of two cases where Judges have used deferred sentences for a few months in relation to women offenders is nothing compared to the Oklahoma women whose sentence was deferred for 10 years after she killed her boyfriend by running him over. She was only 19 and his father spoke in her support. Deferring a sentence with conditions is a sensible option in cases where the offender is unlikely to offend again or where there is a real likelihood of compliance with rehabilitation.

In England, the two cases were informative – one was an Oxford student who had cut her boyfriend with a knife during an argument. The Judge deferred sentence under rehabilitative conditions. The case received unwarranted headlines in relation to her education and the suggestion that she was receiving preferential treatment because she was an elite student. The other was a woman who had admitted fraud to the sum of £38,000 but had repaid the debt and, again, sentence was deferred on conditions. This time the headline related to the Judge’s comment that he did not like sending women to prison. Eventually she received a suspended sentence with further comment from the Judge that nothing would be achieved by sending her to prison. That is true of many women offenders and is the motivation behind the UN Bangkok Rules which give guidance to policy makers, legislators, sentencing authorities and prison staff to reduce the imprisonment of women.

It is still exceptional to find a woman in the criminal justice system. They still only make up less than 10% of the prison population, are largely minor offenders with multiple vulnerabilities and child care responsibilities and courts have a duty to try and find alternative disposals. Unfortunately the useful tool of deferring a sentence to see if an offender can comply with conditions has been underused. Sentences for women are rising and the Sentencing Council still refuses to publish a gender based guideline despite ample evidence that an alternative approach to women in prison could be justified. The consequence is that sentences for women are on the rise without the consequential reform so clearly needed. In London this is exacerbated by the closure of Holloway prison removing women to the outskirts and making it impossible for them to maintain family ties. It is no wonder that the numbers of suicides are so high. Historically, prisons and prison regimes were designed for the majority male prison population – from the architecture of prisons, to security procedures, to healthcare, family contact, work and training.

The major problem is not just the misleading headlines but the limitations of deferral. There is a free online course to understand the practical implementation of the Bangkok Rules here http://penalreform-elearning.org/. I wonder how many Judges have used it? The real problem at the moment is that the legislation and the Sentencing Council’s regime is so restrictive that it fails to comply with the Bangkok Rules guidance. It reads as follows:

“The court is empowered to defer passing sentence for up to six months (Powers of Criminal Courts (Sentencing) Act (PCCSA) 2000, s.1). The court may impose any conditions during the period of deferment that it considers appropriate. These could be specific requirements as set out in the provisions for community sentences, restorative justice activities (PCCSA 2000, s.1ZA) or requirements that are drawn more widely. The purpose of deferment is to enable the court to have regard to the offender’s conduct after conviction or any change in his or her circumstances, including the extent to which the offender has complied with any requirements imposed by the court.

Three conditions must be satisfied before sentence can be deferred: the offender must consent (and in the case of restorative justice activities the other participants must consent, PCCSA 2000, s.1ZA(3)); the offender must undertake to comply with requirements imposed by the court; and the court must be satisfied that deferment is in the interests of justice. Deferred sentences will be appropriate only in very limited circumstances.

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