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@2 It means that rather than argue the toss about when a rape is less serious than another rape, you take rape as a standard stand-alone charge and make what would previously have been aggravating factors toward sentencing separate charges, based on what they actually are, added on top.
So a violent rape would carry a heftier sentence than say taking advantage of someone passed out from booze, because GBH would be added on top, but the rape portion of the charge would carry the same weight in both instances. In short the court would be recognising that all rapes are equally terrible, while still sentencing to the individual circumstances.

I worked with a truly inspirational domestic violence co-ordinator for 5 odd years and rape is hideous but I never knew destruction of foetus was a separate crime until we had it. Social services are pretty well switched on and the police have made in-roads. I can see the advantages of plea bargaining but have no fixed opinion. Good on Ken for going on QT tonight – will reserve judgment as to dinosaur, knobhead or sacked until afterwards. Would this be the wrong forum to mention Asian & ethnic minority rape prevalence stats in the context of under reporting of attacks? Probably not but a serious issue.

Actually if Ken Is sacked he might be replaced with someone who wants what the Daily mail want’s like locking people up.

I’m amazed at the number of people jumping to Clarkes defense. Before anyone asks, yes I heard what he said, and after I’d given myself a good few hours to calm down, I read the transcript to see if it really had been as bad as I’d thought. And yes, it was. And there’s no good him using the old “taken out of context” / “I’ve been misunderstood” line because it won’t wash. Anyone who holds his views shouldn’t be in his job.

“And, lastly, do NOT cut domestic violence courts! They were starting to hear rape come up more often. We could then see more and more violent offender behind bars (with rehab!)”

It is worth noting this:

http://www.guardian.co.uk/commentisfree/libertycentral/2011/may/19/uk-domestic-violence-council-europe

“Ministers from countries all across Europe gathered in Istanbul today to sign a new Council of Europe convention on domestic violence at the Istanbul summit of the committee of ministers. Incredibly, the UK wasn’t one of the signatories. The British government so far has not commented on its reasoning, but for a country that prides itself on being a leader on women’s rights, its failure to sign so far is both a mystery and a serious disappointment.”

@6 – I will defend him because unlike DSK there’s a huge difference between talking about rape than being a rapist. Rape is rape but I swear to God it’s better than murder and they are very closely related.

3. Cylux: “It means that rather than argue the toss about when a rape is less serious than another rape, you take rape as a standard stand-alone charge and make what would previously have been aggravating factors toward sentencing separate charges, based on what they actually are, added on top.”

I follow your argument Cylux. But I don’t see how it changes current sentencing policy: a minimum sentence, plus the Judge’s discretion. The only significant difference is that we are labelling the Judge’s discretion.

Twenty years ago, I would not have believed the next point that I will make. But I do believe now that Ken Clarke is sincere when he seeks reassessment of sentencing policy and rehabilitation. For all crimes of violence, not just rape.

But owing to the now notorious interview, we don’t know what his message would have been. Might we have lost a genuine opportunity for criminal reform, thanks to a broadcaster’s cheap bid for a “gaffe”?

Transcript of the BBC interview with Clarke:
http://www.bbc.co.uk/news/uk-politics-13444770

I found Gabrielle’s comments very distressing. If Clarke was to be presented with an example of contentious sentencing, that could all have been done on paper, in abstract. There was no need, to support debate, to upset Gabrielle further. But it was newsworthy.

I don’t wish to be insensitive or unkind but what you are describing is aggravated rape which is recognised within the legal system and adds considerably to sentences handed down. Rape already attracts higher sentencing than most bodily harm offences. So while I sympathise it is within the power of the exisitng law to take all this into account.

@3 sounds sensible.

What should the min sentence – I mean *actually inside* after any and all “discounts” – be for rape with no aggravating factors?

@9

But I don’t see how it changes current sentencing policy: a minimum sentence, plus the Judge’s discretion. The only significant difference is that we are labelling the Judge’s discretion.

Kinda yeah, I had a process in mind though, I think it’s how American prosecutors go for the throat when they’ve got someone bang to rights. If they’ve got the big crime they’ll pile on all the misdemeanour’s that led up to or were caused during that crime, such as say breaking and entering when the culprit broke into his neighbours house to kill him. Course it might lead to odd situations were a jury convicts on the GBH charge but not the rape charge.

I dunno really, that was just my first guesstimate at “stop talking in scenarios and instead add charges to the act of rape.”.

@12 Therein lies the question. In full frank honesty, I haven’t the faintest idea how many years/months would be sufficient.

@ 3 Cylux

I like your idea, but I think the standard legal practice is to use a full sentence for the biggest crime and then add token penalties for the others. Like, if you commit one crime worth 5 years and lots of minor crimes that add up to 5 years, you’ll get 5 years for the big crime and a few months for the other crimes combined. If I’m right, and I might not be, you’d need a special rule saying that the other crimes were to be treated with full weight when added to rape.

12 – Personally I’d say 4 years minimum but then I’m a hang ’em and flog ’em Tory.

@OP, Emma Poole: “But the sad thing is, this is unlikely to happen because this was never about helping victims. It was always just cutting 20 – 23% of the budget.”

What is “it”?

“Criminal justice” in the UK costs a lot of money. We pay for police officers, barristers et al to attend court cases. We pay for parole officers and social services workers to mind (ex)-offenders. We pay thousands of pounds to bang up an individual pointlessly for three months.

A rational man or woman would seek to reduce those costs (long term) and maintain justice. Ken Clarke, possibly David Davis, are the only Tories to consider for the job.

“It” needs a complete rethink. “It” will be expensive in the short term.

I will bite my tongue before commenting on survivors of crime. Criminal justice is about processing those accused of a crime. It is about the accused. The feelings of survivors are expressed in court evidence.

Victim Impact Statements do not give an answer; they are pointless and indirectly offensive to the deliverers.

@ 17 Charlieman

“A rational man or woman would seek to reduce those costs (long term) and maintain justice. Ken Clarke, possibly David Davis, are the only Tories to consider for the job.

“It” needs a complete rethink. “It” will be expensive in the short term.”

Have to agree with all of that. Rather strongly.

@18. Chaise Guevara: “Have to agree with all of that. Rather strongly.”

Good, Chaise. But think and argue.

This has got to be one of the maddest ‘outrages’ for a while. Ken Clark (probably the only vaguely progressive minister in the right-wing government) states a truism (not all instances of rape are identical) and is pilloried for…what?

I wonder if anyone here is willing to agree with me about just how right-wing Ken Clarke *isn’t*. He’s a raving liberal of the “halve all sentences”/”prison doesn’t work” variety, for whom concerns about over-lenient sentencing are just “tabloid rubbish” to be ignored.

It is a great shame that this fact can now only be exposed by reference to rape, because talking about rape is especially unpleasant and upsetting, and rapists are just one of the many categories of criminal now treated with great leniency. We should be having this discussion about burglars, muggers and smackheads. Then we wouldn’t need to discuss rapists and rape. But we can’t, because for all of those crimes, we’re required to believe that the criminal is the real victim and itsmorecomplicatedthanthat, etc. Rape is unique in that it is the only crime where even a Guardian reader can see that the criminal is the real criminal, and the victim is the real victim.

17. Charlieman – ““Criminal justice” in the UK costs a lot of money. We pay for police officers, barristers et al to attend court cases. We pay for parole officers and social services workers to mind (ex)-offenders. We pay thousands of pounds to bang up an individual pointlessly for three months. A rational man or woman would seek to reduce those costs (long term) and maintain justice. Ken Clarke, possibly David Davis, are the only Tories to consider for the job.”

A rational man would. But it is irrational to assume, without evidence, that you can. Why do you think we can? Especially, why do you think we can maintain justice and cut costs? It is also irrational to ignore the costs of crime – we all pay for crime through higher insurance costs, higher taxes, bars on our windows, alarms on our doors, new DVD players, new car windows, a loss of trust. We ought to be seeking to reduce those costs. Long term.

Which is why it is never pointless to jail anyone. As long as they are guilty.

““It” needs a complete rethink. “It” will be expensive in the short term.”

Hanging isn’t expensive and yet I bet it would do all you want. It does need a complete rethink but there is no reason to think it would be expensive.

“It is about the accused.”

Actually it is about all of us. Not just them.

“Victim Impact Statements do not give an answer; they are pointless and indirectly offensive to the deliverers.”

The obvious question, phrased the only way I can think even though no offense is intended, is who are you to decide? How do you know they are offensive?

@ 15.

The American system does work like that (often). You might be charged with, say, 3 murders (to steer it away from rape). Found guilty on all three, sentenced to all three. So you can get “three life terms” without parole. Or 10 years each for 3 crimes: finish one sentence, start serving the next for 30 years total.

Known as, I think, cumulative sentences.

The UK system can do this but does it only in very exceptional circumstances. Here sentences are “concurrent”. So, say you’re convicted of rape (4 years, just as an example), GBH (6 months, an example, I’ve no idea what likely sentences are), ABH with menaces (2 years).

So, in your first 6 months inside you’re serving the first 6 months of your 4 years, the first six months of your two years and the 6 months for your GBH, all at the same time. Then the second 18 months you’re serving your other two sentences concurrently. Then your final 2 years is for the rape alone.

The way we deal with these extra offences is by the judicial discretion. Instead of sentencing to concurrent sentences, which doesn’t lead to a day extra being served, we sentence to a longer primary sentence on the main crime.

We could change the system to the American one (and I don’t know the reason why the two systems differ) but to a large extent that very judicial discretion already provides the same function. Worse crimes/more crimes produce longer sentences.

A couple of factual points:

1) The point about Domestic Violence courts is meaningless in the context of rape. Domestic Violence courts only exist in Magistrates Courts. Since Rape is an indictable only offence, magistrates have no jurisdiction and must send the case forthwith to the Crown Court. There, the accused will either be sentenced, or acquited after trial (before a jury). At most, magistrates will decide on bail conditions to operate whilst the accused await the Crown Court hearing. It is possible a bail hearing could be in a DV court but this is unlikely. Most bail hearings are heard in remand courts.

2)When a number of related cases are sentenced together, it is the practice (supported by previous cases and legal directions) to discount the sentence for the ‘lesser’ offences to make up the total sentence. I cannot speak about rape and associated violenct offences, but I can illustrate the principle with an example from motoring. Someone is caught speeding, with no insurance and no licence. Insurance is considered the most serious and would be sentenced 100%, the other two are equally, but less, serious so we would have 66% on one, and 50% on the other.

It might seem attractive to sentence individual elements of an offence, but not all aggravating features of an offence are offences themselves. For example, I remember a case of indecent assault in which the victime was terrified by the clothes that the attacker wore. Wearing strange clothes is an aggravating feature because the intent was to frighten the victim, but it is not an offence in itself .

‘But the sad thing is, this is unlikely to happen because this was never about helping victims. It was always just cutting 20 – 23% of the budget’.

I’ve no doubt there ARE people who want to deduce prison sentences for financial reasons but in my experience the urge for retribution overides financial prudence on what is traditionally regarded as ‘the Right’ but now seems to include most of the nominal ‘Left’.

On the other hand second-guessing the motivation of those urging more lenient sentences should have no bearing on the merits of the case fot cutting prison populations. You can’t just keep shoving people in prison just to oppose the cuts. The prison population is not their to meet the needs of the prison service any more than patients are there to serve the interests of the NHS.

‘And women lose out in the end.’

Clarke has proposed cutting prison sentences across the board, not just for rape, so the characterisation of Clarke as an unreconstructed misogynist – or at least unsympathetic to women – won’t wash. For any other group of offenders the liberal press, such as it is, would rightly be cheering him on.

“Clarke has proposed cutting prison sentences across the board, not just for rape, so the characterisation of Clarke as an unreconstructed misogynist – or at least unsympathetic to women – won’t wash. ”

From the course of the debate, never mind the issues of improving the abysmal rate of recorded convictions for rape or debating sentencing policy, feminist activists won’t be satisfied unless Clarke is castrated.

Emma,

So my advice to Ken, after belittling experiences of people like me, is simple: stop talking in scenarios and instead add charges to the act of rape.

So if a poor victim is punched as well, add G.B.H and/or A.B.H; if weapons are used, add “with menaces”; if their life is threatened but they escape, add attempted murder.

1. I do not presume to understand your experience, I can only offer my sympathies, FWIW.

2. ISTM Clarke was insensitive – he says himself he “phrased it very badly”. I think he was talking in legal terms. When for example the Sentencing Council’s guidelines talk about “serious sexual offences” it does not mean there are sexual offences that are “not serious”.

3. You suggest Clarke should “stop talking in scenarios…” but the issue here is that the way we sentence depends on the circumstances; the culpability of the offender and the harm caused to the victim, for example. Shami Chakrabarti spoke well on this on Question Time, I think.

4. I like the idea of adding such charges as you outlined but I thought this was already done?

5.

But the sad thing is, this is unlikely to happen because this was never about helping victims. It was always just cutting 20 – 23% of the budget. And women lose out in the end.

Well, taking Clarke at face value (ha!) he was saying he wanted to reduce the trauma experienced by the victim. This doesn’t seem a bad thing in itself. Of course there may be things to consider around it.

So my advice to Ken, after belittling experiences of people like me, is simple: stop talking in scenarios and instead add charges to the act of rape.

So if a poor victim is punched as well, add G.B.H and/or A.B.H; if weapons are used, add “with menaces”; if their life is threatened but they escape, add attempted murder.

You’re basically just describing current (and ancient) English law on mitigating/aggravating factors. There is (I believe) only one crime with a mandatory sentence (and even that gets fudged around the edges). For all the others, judges have discretion to amend the sentence depending on the facts of the case.

@ 19 Charlieman

“Good, Chaise. But think and argue.”

At 11.30 on a school night? In any case, I’m being wary about what I say in this thread, because I think it has a risk of going nuclear.

In this Brave New World: German insurer Munich Re held orgy for salesmen

“One of the biggest insurance companies in the world held a party for salesmen where they were rewarded with the services of prostitutes.”
http://www.bbc.co.uk/news/world-europe-13454160

That really is something for feminist activists to get excited about.

@20 He didn’t state a truism. Saying that not all cases of rape are identical would be fine. Calling some of them “proper, serious rape” – meaning some of them aren’t, is very different. You’ve fallen victim to the Ken Clarke getting away with it strategy, which I’ve outlined here: http://s.coop/allmessedup

@ Tim J #28:

“You’re basically just describing current (and ancient) English law on mitigating/aggravating factors. There is (I believe) only one crime with a mandatory sentence (and even that gets fudged around the edges). For all the others, judges have discretion to amend the sentence depending on the facts of the case.”

Not quite. GBH would be charged as well as rape; as would attempted murder. I could see that ABH might well not be, but simply be treated as aggravating, for fairly obvious reasons. As an independent offence, it would add little if anything to the sentence handed down; as an aggravating factor, it would.

@Wrinklyninja #6:

I too would defend Clarke who, admittedly with no competition, has been the most rational and liberal Home Secretary this millennium.

He was ambushed by Derbyshire who, apparently because she didn’t understand her sources, misrepresented the position. Her initial claim was that rapists get on average 5 years, and that “The five years, the five-year stats come from the Council of Circuit Judges”. The claim is incorrect, and she was wrong to make it. Clarke obviously had no idea which stats she was talking about (unsurprisingly, since as we shall see there are no such stats), but did know that the standard rape sentence was more than that. He guessed, wrongly, that the figures were skewed by inclusion of the section 9 offence and other offences that those condemning him actually claim are not rape.

In fact, as became clear toward the end of the interview, Ms D was referring to the starting point in the sentencing guidelines; which is 5 years for a rape of a woman by one man with no aggravating factors (which include threats, intimidation, use of alcohol or drugs etc) present. That eventually came out, but she still did not appreciate quite how egregious her howler had been; nor have many of those commentating appreciated how that howler influenced Clarke’s approach. With hindsight, he possibly should simply have challenged her to produce the stats she was relying on or shut up about them, rather than, as he did guess why they were wrong, but it’s easy to say that after the event and it probably would not have played well on radio.

The MoJ statistics on sentencing show that the average length of sentence for *all* sexual offences in the Crown Court – of which rape is of course the most serious – is 48.7 months. I haven’t been able to find stats for rape alone from the MoJ; but I do know that a study is being carried out with feedback from the Crown Courts which is due to report later this year; so there will be stats that could plausibly be described as “from the Council of Circuit Judges” – but they do not yet exist.

Bob B,

In this Brave New World: German insurer Munich Re held orgy for salesmen

That really is something for feminist activists to get excited about.

Were they invited as well then? Could have been an interesting affair…

Bluntly, distasteful, but nothing to do with this thread, since no-one has accused anyone of anything illegal.

Thank you to everyone who responded…

I know Judges currently add time on to sentences for aggravation, sadly, I am aware of the system, I was pointing out that if that were not at the discretion of the judge but the CPS filed separate charges we would have a clearer system that all could understand.

I am not suggesting that people are stupid at all but when you are going through the ordeal the simpler the system the better. I also think there should only be plea bargaining on one of the charges rather than all and the sentences should be quite lengthy and carry mandatory rehab and psychiatric evaluations. I know this would be very expensive which is why I believe for “lesser” crimes of shoplifting, not paying fines, drug possession and the like community sentences with rehabilitaion would be far more productive plus it would free up prison space for those who NEED to be there. (Not just punishment but treatment too)

If it works I’ve also posted this link about the domestic violence and rape courts that is in the Mirror…
http://www.mirror.co.uk/news/politics/2011/05/20/ken-clarke-in-new-slur-on-women-sex-attack-victims-as-he-closes-rape-courts-115875-23142539/

@21 & 22

+1

@33: “Bluntly, distasteful, but nothing to do with this thread, since no-one has accused anyone of anything illegal.”

That’s not my view so I disagree and, so far as I know, pluralism still prevails. I’ve tried making the point several times in various threads that whipping up the phoney hysteria about Clarke is blocking discussion about the really important underlying issues which remain unresolved and which would still be there even if Clarke were driven from office:

– how to improve the conviction rate for cases of recorded rape, which is only about 6%?

– what to do about sentencing for rape on conviction when Britain already has one of the largest per capita prison populations in western Europe and there are continuing budgetary pressures to reduce prison and prosecution costs?

– what to do about the likelihood of reoffending by rapists, perhaps with escalating violence?

IMO the feminists campaigning for the dismissal of Clarke have done themselves and their cause a grave disservice by their refusal – or inability – to deal with the substantive issues.

@36,

Are you suggesting that, in order to cut the budget, prison times should be reduced?

It’s interesting to read some of the comments on this thread alongside Peter Tatchell’s piece elsewhere on the site. Apparently, the British govt is failing in its duty to protect the people of Bahrain. Protecting the people of Britain, on the other hand, is unfortunately a bit too complicated and a bit too expensive.

> how to improve the conviction rate for cases of recorded rape, which is only about 6%?

Well, we could start by acknowledging that the conviction rate relative to prosecutions is pretty good (58%). The problem is that only about 10% of reported rapes get prosecuted in the first place, so surely the rate of prosecution is where attention needs to be focused.

I think one of the reasons so few rapes get prosecuted is that they tend to be word-against-word: as such, any trial applying presumed innocence would return a not-guilty verdict. The only viable way to fix this that I can think of is removing presumed innocence, and I personally would consider that unacceptable, although others disagree. Therefore I’d say perhaps the focus should be on prevention, which is always the best option anyway if you can pull it off.

@37: “Are you suggesting that, in order to cut the budget, prison times should be reduced?”

The intelligent, evidence-based policy approach is to start by inquiring how come Britain has one of the largest per capita prison populations in western Europe:
http://news.bbc.co.uk/1/shared/spl/hi/pop_ups/06/uk_prisons_in_the_uk/html/1.stm

Is that because we British are inherently wicked or because judges in Britain have been handing out longer sentences and, if so, how does that compare with the experience of other west European countries? Try this:
http://www.rethinking.org.uk/facts/rethink/how.html

@34
Emma, The Mirror is wrong about special domestic violence courts (SDVCs). They do not deal with rape. As I explained earlier, rape can only be dealt with at the Crown Court, SDVCs are magistrates courts not Crown Courts. Further, this Mirror story is a scare. Some magistrates courts buildings are due for closure. I am aware of many of these and, to be frank, they should have been closed years ago. The work of those court buildings is being redistributed to other more modern court buildings; I am not aware of a single SDVC which is due to close because of these rationalisations, or whose work cannot be absorbed into a SDVC in the new location.

@40,

I don’t doubt that if judges started to hand out shorter sentences, the prison population would fall. Common sense can tell you as much–the “intelligent, evidence-based policy approach” is not needed.

But will shortening sentences actually reduce crime? That seems like a much more relevant measure of success.

@42: “I don’t doubt that if judges started to hand out shorter sentences, the prison population would fall. Common sense can tell you as much–the “intelligent, evidence-based policy approach” is not needed.”

But you’ve not explained how come Britain has come to have one of the largest per capita prison populations in western Europe?

Of course, crime could be cut in various ways without increasing the prison population. Martial law? Night time curfews for young people – who are disproportionately responsible for crime? Crime – expecially violent crime and rape – is often fuelled by alcohol so introduce personal ration books to buy alcoholic drink, as they did in Sweden at one time, or double the excise duty or both?

Of course budgetary constraints apply. In the last analysis, there are always trade-offs. It costs upwards of £44,000 a year to keep someone in a secure prison – and that figure is several years old now – when councils are cutting back on social care and sheltered accommodation for the elderly. Recall that Jack Straw, that famous libertarian, wanted to reintroduce prison ships, just like we used to have in those good old days.

For any who would like to dip into the analysis of crime and punishment by the Chicago school, try this by Nobel laureate Gary Becker:
http://www.ww.uni-magdeburg.de/bizecon/material/becker.1968.pdf

“But will shortening sentences actually reduce crime? That seems like a much more relevant measure of success.”

Could it be that the incidence of crime has more to do with fads, fashions, social trends and the availability and cheapness of alcohol rather than the length of prison sentences?

About a third of Britain’s prison population were in care when they were young – so family breakdown is an important factor. Does criminal behavious relate to mental health issues and drug abuse:

Too many people with mental illnesses are being sent to prison rather than receiving treatment, according to the Prison Reform Trust. The trust says 90% of inmates have at least one diagnosed mental health disorder, and one in ten has a serious mental health issue.
http://news.bbc.co.uk/1/hi/uk/7868330.stm

The majority of people held in European prisons have had problems with drug misuse and associated health and social harms.
http://www.hmprisonservice.gov.uk/assets/documents/10003E3Ddrug_use&nfections_prevention.pdf

It is widely recognised in the NHS that healthcare for mental illness is a cindarella service. As the NHS and councils closed down hospitals and hostels for those with mental health issues, a proprtion of the patients have moved into the prisons instead.

Why not try the evidence-based approach instead? But then it is so much easier to promote a hysterical campaign to drive Clarke from office.

@41

My mother in law is a local magistrate so I understand that they do not deal with the rape element of a case of DV but they take it into consideration when dealing with the case they are sitting on and it then gets referred if necessary… It is not only the Mirror who are saying this, as I have said, my mother in law is a JP and she is saying it too…

@43

Punishments only work if they are in line with rehab. Better prevention would be far more advantageous, so you are dealing with a real minority rather than the numbers we are trying to deal with, this starts in education… Not just in schools but at home… So I totally see why kids who have been in care have a greater chance of going down the criminal route.. Changing our society’s view on some things would help a bit too… I.E The one that happened to me a few weeks ago when a man was buying me drinks (I refused them) the barman told me he was ordering me trebles! He was trying to get me drunk so I would say “Yes” no matter what I would think in my right mind! Technically nothing wrong in that, society would find that quite normal, even funny as an audience laugh in Friends when Joey is waiting for a character to “get drunk enough” would suggest, but morally WTF?
I was asking myself why would a fairly good looking man who seemed friendly and funny need to do that??? Lack of self respect, low confidence that I would say yes or did he see my wedding rings?? I then got in my car and drove home… Luckily I was designated driver so just drinking coke… Personal responsibility is just something I do but surely respecting others and yourself is an absolute must?

@ 42 vimothy

“But will shortening sentences actually reduce crime? That seems like a much more relevant measure of success.”

I think you need to look at each crime and decide what sentence would act as a deterrent without cutting the criminal off from lawful society. So I wouldn’t advocate a one-size-fits-all policy of cutting all sentences by X%. If a thought-out policy along these lines was introduced, I’d expect crime to see a short-term rise and a larger long-term fall.

But there’s one thing I think would really help reduce long-term crime rates, and for some reason it rarely seems to come up for discussion. I reckon we need a serious review of who we give criminal records to and who can access them. It’s not surprising that petty criminals go on to be career criminals if their record makes it hard to find a legitimate job.

On rehabilitation/imprisonment: it makes sense to keep rapists imprisoned away from society until they’re no longer dangerous. Of course, there’s also a need to keep them away from other prisoners, for much the same reason, which doesn’t get much consideration.

So if we could effectively rehabilitate/reform them so that they wouldn’t reoffend when (or before) they got out of prison, that would be very good. The alternative is to keep them in there indefinitely (a sentence that’s currently only reserved for the most prolific rapists) or let them out because their sentence is up knowing that they’re going to reoffend.

Preventing potential rapists from committing a first offence is much the same problem, so I have to believe it’s possible. On the other hand, someone who has actually committed multiple rapes and been arrested presumably has much deeper habits than a proto-rapist and will be harder to reform.

As for Clarke, he really needs to start reading up on the research about rape and rapists that already exists, so it starts sinking in. I think he understands it intellectually but not instinctively, which makes him very prone to saying things he doesn’t mean to say (and quite possibly doesn’t want to think either) when under pressure. It’d also make him more likely to come up with useful policies in the first place.

44/Emma Poole: Technically nothing wrong in that, society would find that quite normal, even funny as an audience laugh in Friends when Joey is waiting for a character to “get drunk enough” would suggest, but morally WTF?

http://www.legislation.gov.uk/ukpga/2003/42/section/61 – “Administering a substance with intent” – would suggest that his actions were either illegal or very close to being illegal as well as just immoral.

And absolutely agreed on the common pop culture depictions of behaviour like this – and indeed sexual assault and rape – as completely normal and even a good thing. It’s hardly any surprise that many people have messed up ideas about what consent is, and that some of those become rapists, when TV, films, etc. are normalising this as the way things are.

@46: “On rehabilitation/imprisonment: it makes sense to keep rapists imprisoned away from society until they’re no longer dangerous. ”

Of course, and most would likely agree that makes a strong case for those indeterminant sentences conditional on good behaviour and a favourable assessment on the likelihood of reoffending. But there have been several notorious cases in the news – I don’t have the stats – where rapists have been released from prison only to perpetrate another rape not long after.

I can only conclude that it is extremely challenging for the psychiatrists and other professionals involved in the assessments to make tolerably accurate predictions of the likelihood that convicted rapists will reoffend. I don’t pretend to have a solution – but then I’m not a psychiatrist or a prison social worker.

This seems to me a far more important and urgent topic than driving Clarke from office.

@43,

Ah, so we are presented with a choice between two distinct approaches to crime policy: the “evidence based approach”, and a “hysterical campaign to drive Clarke from office”. Nothing else? No middle path? Well, I choose the former, then, since it is more sensible. It must be, because it is “evidence based”. Case closed.

FWIW, I have precisely zero interest in either Clarke or driving him from office. I’ve read the interview transcript and it is the usual journalistic nonsense that mistakes confrontation for debate.

“But you’ve not explained how come Britain has come to have one of the largest per capita prison populations in Western Europe”.

Does it really need an explanation? We have higher crime rates and we hand out longer sentences, thus we end up with a larger prison population. But wait—what if we handed out shorter sentences? Since other European states hand out shorter sentences, and have lower crime rates, it follows that we’ll have lower crime rates as well. Or does it? As you can see, I’m terribly confused.

Your suggestions for cutting crime seem sensible enough. Except martial law—although I’ve lived in and around places that could probably have benefited from it.

Yes, there are budgetary constraints. But you can’t do a CBA without taking account of the costs (in this case, of not sending offenders to prison). Otherwise, we end up arguing for no govt spending whatsoever.

“Could it be that the incidence of crime has more to do with fads, fashions, social trends and the availability and cheapness of alcohol rather than the length of prison sentences?”

Could it be that there are social factors that influence crime rates *and* that individuals are able to weigh up costs vs benefits of criminality for themselves?

@48: “Could it be that there are social factors that influence crime rates *and* that individuals are able to weigh up costs vs benefits of criminality for themselves?”

Rising crime rates during the 1980s became an issue. By the end of the 1980s, as the result of Home Office research, the convential official wisdom was that in Britain property crimes increase when times are hard, while alcohol related crimes increase in times of (relative) prosperity.

On top of that, there are international movements: crime rates increased in much of western Europe during the 1980s – albeit to varying extents – and beyond and then started to fall back from around the mid 1990s. On various league tables, Britain comes out somewhere near the top in international league tables for violent crime, teen pregnancies and binge drinking.

I doubt that these dynamics are fully understood. Certainly, officialdom has moved into an evidence-based policy approach even if much of the electorate hasn’t. Even so there are many unresolved puzzles. It is challenging to believe that all or most criminals are rationally motivated when we note the extent to which prisoners had been in care as children or the relatively high incidences of mental health issues and drug addiction among prisoners. The reoffending rates of those who have served prison sentences is surprisingly and worryingly high:

“Criminals released within the first three months of 2007 committed almost 74,000 new offences within a year of release – a rate up almost two per cent on the previous year. It meant 39 per cent of prisoners returned to crime after release compared to 38.6 per cent the previous year – the first time the rate has increased since 2002, figures from the Ministry of Justice showed. . .The rates of reoffending for some of the most serious offences showed the biggest rises.”
http://www.telegraph.co.uk/news/uknews/law-and-order/5362217/Reoffending-rate-rise-for-first-time-in-five-years.html

This Dutch study looks interesting: The crime-reducing effect of sentence enhancements for repeat offenders, but it presumes criminals are rationally motivated:
http://www.roa.unimaas.nl/seminars/pdf2010/Vollaard.pdf

@49,

As long as we understand “rational” in standard econ terms—as in utility maximising—and not in more pedestrian terms where we’re imagining that “rational behaviour” describes the activities of some university prof, wise man, or, perhaps, Spock, then it’s hard to see what is wrong with this assumption. What do you think motivates criminals? Or are they totally inscrutable?

Here’s an experiment that anyone can try on their own children: When they do something wrong, reward them; when they do something right, punish them, or at least, ignore them. Lather, rinse, repeat for fifteen years. What kind of person have you raised? If they are self-destructive and anti-social, then you obviously weren’t nice enough to them when they misbehaved. The solution: Increase the dose!

“Evidence based policy” sounds like a Westminster version of the Loch Ness monster—often cited, seldom sighted. Sure, an “evidence based” utopia awaits, it’s round the next corner. Good to know we’re moving in the right direction.

Everybody else in the country understands intuitively that this is self-important and mostly nonsensical, though. That’s why the gap in attitudes exists. It’s not that politicians are enlightened; rather, it’s that they’re idiots. We select for idiocy, so this should come as no surprise. Over the last 60-plus years, we have liberalised all of the institutions that kept anti-social behaviour in check. With what results, we now see.

@50: “What do you think motivates criminals? Or are they totally inscrutable?”

Of course, there are big time professional career criminals:
http://news.bbc.co.uk/1/hi/england/nottinghamshire/6908816.stm

OTOH how about Bernard Madoff?

But it challenges credibility to claim that the high percentages of drug addicts and the mentally ill in prison – who would likely have insurmountable personal problems holding down any regular job – are motivated by a rational calculus in which they assess and balance the prospective gains and losses from their next crime. By reports from those better placed to know, many petty criminals stick to a life of crime because that is only what they know how to do to make money and because for them there aren’t evident exit routes back into the world of straight people and regular work.

Besides, is the prospect of prison all that is stopping readers here from rushing out and raping the next woman they encounter? It seems not to be sufficiently widely appreciated that half the people in the world have less than average intelligence.

In the prevailing job market, what are the employment prospects for the 20,000+ who leave school nowadays at 16 without any qualifications? Only about half of 16 years-olds can attain attain the old benchmark of 5 good GCSEs, including maths and English. On last year’s GCSEs: “Just one in six pupils in England has achieved the new English Baccalaureate introduced by the government, England’s league tables show.”
http://www.bbc.co.uk/news/education-12163929

@51 “But it challenges credibility to claim that the high percentages of drug addicts and the mentally ill in prison – who would likely have insurmountable personal problems holding down any regular job – are motivated by a rational calculus in which they assess and balance the prospective gains and losses from their next crime.”

Of course. And in a sense these people are victims of a failure on the part of authority to punish wrongdoing while they were growing up. Throughout school, and in their earliest dealings with the police, they should have been given no illusions about the right way to behave.

You say that “officialdom has moved into an evidence-based policy approach”, but this is clearly inadequate, as certain policies that are known to be effective are not even being considered. As an extreme example, when was the last time the officials considered reintroducing hanging? The answer is instructive because it reveals that certain approaches, such as punishing wrongdoers as if they were actually responsible for their actions, cannot even be considered. So much for “evidence-based”. Punishment, the one approach that obviously does work and is supported by mountains of historical evidence, isn’t even considered.

Incidentally, I don’t want to see Ken Clarke sacked or forced to resign, because I know that David Cameron will just replace him with another left-liberal punishment denialist whose real opinions about prison will *not* be accidentally revealed in a radio interview. I want Clarke to stay in place in the hope that some day all conservative voters will realise that they are propping up a party that despises them and everything they believe in.

@50. vimothy: “If they are self-destructive and anti-social, then you obviously weren’t nice enough to them when they misbehaved. The solution: Increase the dose!”

I understand now. So if we take an upstanding, honest citizen like vimothy s/he will
become an even better role model if we brutalise him/her. I think that we should take vimothy up on his/her implied offer and bang ’em up for six months in the Scrubs.

vimothy seeks evidence and vimothy deserves evidence.

43. Bob B – “But you’ve not explained how come Britain has come to have one of the largest per capita prison populations in western Europe?”

Does he need to? It is simple – Britain has one of the lowest imprisonment rates per crime. There’s the explanation right there. Criminals know they are unlikely to get caught or if they are, get imprisoned. So they know they are in a very crime-permissive environment. So more of them commit crimes. More of them are then imprisoned, but a smaller percentage than those that take to crime.

“Of course, crime could be cut in various ways without increasing the prison population. Martial law?”

Ideally we should impose penalties on criminals, not on the rest of us. This is just the general case of the Canadian policeman who said women should not dress as “sluts”. It is not for us to modify our behaviour so as not to be victims of crime. It is for us to make sure people are not criminals.

“Of course budgetary constraints apply. In the last analysis, there are always trade-offs. It costs upwards of £44,000 a year to keep someone in a secure prison – and that figure is several years old now – when councils are cutting back on social care and sheltered accommodation for the elderly.”

It costs that much to do so now, in the sort of conditions we like, in the sort of prisons we have. But it does not have to. We could massively reduce costs by moving to a more regimented system that did not waste time and money on rehabilitation and made prisoners work.

“Could it be that the incidence of crime has more to do with fads, fashions, social trends and the availability and cheapness of alcohol rather than the length of prison sentences?”

No.

“About a third of Britain’s prison population were in care when they were young – so family breakdown is an important factor.”

So we could stop subsidising family breakdown. Cut welfare for single mothers.

“Too many people with mental illnesses are being sent to prison rather than receiving treatment, according to the Prison Reform Trust. The trust says 90% of inmates have at least one diagnosed mental health disorder, and one in ten has a serious mental health issue.”

This is the usual lying-with-statistics approach. Such figures use drug or alcohol use as a “mental illness”. No doubt British prisons have more than the average number of mentally ill, but it does not have that many.

“The majority of people held in European prisons have had problems with drug misuse and associated health and social harms.”

People who break the law (relating to property) are also likely to break the law (relating to drugs). Big deal. You have not proven that using drugs causes other forms of crime.

“It is widely recognised in the NHS that healthcare for mental illness is a cindarella service. As the NHS and councils closed down hospitals and hostels for those with mental health issues, a proprtion of the patients have moved into the prisons instead.”

So we need to reopen asylums and end Care in the Community?

“Why not try the evidence-based approach instead? But then it is so much easier to promote a hysterical campaign to drive Clarke from office.”

We have done that. Michael Howard proved the way to reduce crime is to jail criminals. We do not need to debate that any more. America shows Three Strikes laws and Zero Tolerance works. The rest is detail.

51. Bob B – “But it challenges credibility to claim that the high percentages of drug addicts and the mentally ill in prison – who would likely have insurmountable personal problems holding down any regular job – are motivated by a rational calculus in which they assess and balance the prospective gains and losses from their next crime.”

When was the last time you saw a domestic violence incident in public? When was the last time you saw any murdered in public? Most criminals guilty of these crimes have the rationality to do so in private. Why do you think that is? Why is it that people rarely light up in front of policemen? Of course they have some level of rational calculus. Why would you think otherwise?

“By reports from those better placed to know, many petty criminals stick to a life of crime because that is only what they know how to do to make money and because for them there aren’t evident exit routes back into the world of straight people and regular work.”

Then they are wrong. As crime is a young man’s game. It is amazing how quickly exit routes open up for petty criminals and drug users once they turn 40. If they can trivially find such routes at 40 or 45, why do you think they can’t at 20 or 25?

“Besides, is the prospect of prison all that is stopping readers here from rushing out and raping the next woman they encounter? It seems not to be sufficiently widely appreciated that half the people in the world have less than average intelligence.”

I suspect that prison plays a large part in it. We know this from police strikes in otherwise law abiding places like Canada. I am not sure half the people in the world do have less than average intelligence. It is not a Bell Curve due to being bounded at the lower end.

“In the prevailing job market, what are the employment prospects for the 20,000+ who leave school nowadays at 16 without any qualifications?”

Fairly good I expect. Or let me put it another way, I liked the Ghanaian woman who used to clean the office where I worked. She did not even speak much English and certainly did not have any A levels. Yet she had a job. Like several million other recent immigrants to Britain. What is the difference between her and my local Neets? But let’s assume you have a point, what do you think can be done about it? Sterilisation? People who don’t want to learn won’t learn. If you don’t think changing their incentives changes their behaviour, what is left?

@22. So Much For Subtlety: “Especially, why do you think we can maintain justice and cut costs?”

Thanks for the considered reply. In the short term, I don’t believe that justice reform saves money. The whole system fails (assume recidivism as a crude measure of failure), so we should chuck it out of the window and start from scratch. That costs money and requires a very confident government.

“It is also irrational to ignore the costs of crime…” I don’t ignore those costs; they have to be included in any economic model of crime justice.

“Which is why it is never pointless to jail anyone.” It is almost always pointless to sentence an individual to a second short sentence. If the person failed to learn the first time, it is unlikely that they will learn from the second. The evidence that prison doesn’t work is demonstrated by the number of cons who have had more than one interment. (Note also that many of the UK’s violent criminals are held in secure psychiatric units, not prisons.)

“Hanging isn’t expensive and yet I bet it would do all you want. It does need a complete rethink but there is no reason to think it would be expensive.” In terms of £s, hanging is cheap. Everything else is expensive. Morals aren’t cheap and mine are not for sale.

I, Charlieman, argued “Victim Impact Statements do not give an answer; they are pointless and indirectly offensive to the deliverers.” and SMFS fairly challenged my point.

My point is that a court of law has a big job to do: to determine the case. The judge decides sentence based on the case, evidence about the crime, pertinent evidence about the accused. Victim Impact Statements are an opportunity for crime survivors to make a statement. Catharsis. But the judge has already made decisions about guilt and sentence.

There are strong arguments for restorative justice, petty crooks facing up to the people that they robbed. But Victim Impact Statements are a road to nowhere.

On putting the Great back into Britain or: How about a bit of nostalgia for the illustrious past?

From those times when Great Britain really was world leader in industrialisation and world superpower: “Some thirty-five thousand people were condemned to death in England and Wales between 1770 and 1830, and seven thousand were ultimately executed, the majority convicted of crimes such as burglary, horse theft, or forgery. Mostly poor trades people, these terrified men and women would suffer excruciating death before large and excited crowds.”

From the publisher’s intro for: VAC Gatrell: The Hanging Tree – Execution and the English People 1770-1868 (Oxford UP, 1996)

Our forbears were wiser than is often supposed. When hanging was a regular sentence on conviction for a wide range of petty crimes, they soon came to appreciate that this generated a system of perverse incentives – hence that old adage: Might as well be hanged for a sheep as a lamb. There was also the challenging policy issue of what could possibly deter really heinous crime, such as threatening the life of the sovereign or plotting treason against the state.

Accordingly, an alternative, suitably draconian means of execution was devised for such crimes: Hanging, drawing and quartering. As a concession for consideration of public decency when executions were regarded as a popular form of public entertainment, women were to be burned at the stake instead. Sensibilities otherwise inhibit me from posting further details:
http://www.capitalpunishmentuk.org/hdq.html

Britain became world superpower after the Battle of Trafalgar in 1805 because of the continued supremacy of the Royal Navy. When someone reminded Churchill early in the last century of the traditions of the Royal Navy, he famously remarked that the traditions of the Royal Navy had depended on: rum, sodomy and the lash.

Something for the feminists still with us: Googling as one does on one’s own surname to learn what is out there, I came by chance across an archive of trial proceedings at the Old Bailey on 20 September 1797. My namesake had been indicted on a charge of raping a Jane Bell, who had been tending a small heard of cows for her mistress somewhere near what we now call Hyde Park. He was convicted at the jury trial and duly sentenced to death. By a database of public executions on another website, he was hanged on 8 November 1797.

56. Charlieman – “In the short term, I don’t believe that justice reform saves money. The whole system fails (assume recidivism as a crude measure of failure), so we should chuck it out of the window and start from scratch. That costs money and requires a very confident government.”

But to assume that recidivism is a measure of failure is to assume there is a better alternative. Is there? Aren’t you assuming what you need to prove? It is pointless to claim that there is a better way unless there actually is a better way.

I continue to object to the way you count costs – you only look at the costs to the government. Not the costs to society as a whole.

“It is almost always pointless to sentence an individual to a second short sentence. If the person failed to learn the first time, it is unlikely that they will learn from the second. The evidence that prison doesn’t work is demonstrated by the number of cons who have had more than one interment. (Note also that many of the UK’s violent criminals are held in secure psychiatric units, not prisons.)”

I actually agree with the first two sentences. Which is why we need a Three Strikes law. Someone who won’t learn, won’t learn. But you are only measuring prison by the number of people who re-offend. You need to also look at the number of crimes prevented because someone is inside – it runs at about 140 per thief per year by the way. So if each crime costs us more than £300, it is cheaper to jail them than to leave them out. Given it cost a relative of mine about that to replace his car window the last time someone smashed it to steal the small change he kept for parking meters (perhaps £3 worth), I think it is safe to say it costs us more than that.

You are also assuming there is a better alternative out there. Why?

“In terms of £s, hanging is cheap. Everything else is expensive. Morals aren’t cheap and mine are not for sale.”

Why do you think hanging is immoral? What other costs are there? Bearing in mind that there are costs of not hanging people as well. Prison rape for instance. I am willing to bet people with long sentences are more likely to commit such crimes than people in for six months or less.

“My point is that a court of law has a big job to do: to determine the case. The judge decides sentence based on the case, evidence about the crime, pertinent evidence about the accused. Victim Impact Statements are an opportunity for crime survivors to make a statement. Catharsis. But the judge has already made decisions about guilt and sentence.”

I agree that VIS are useless – because they are a substitute for actual justice. We have them because judges don’t imprison people often enough or long enough and so this is a sop thrown to victims. But catharsis is not nothing.

“There are strong arguments for restorative justice, petty crooks facing up to the people that they robbed. But Victim Impact Statements are a road to nowhere.”

Surely Restorative justice must start with a VIS? How else will the toe rag know what he has done? Restorative justice is a good idea, but it does not work. At least on the limited evidence we have so far it doesn’t work. After all, why would people with no shame start being shamed because we want them to?

Here’s a good example of what’s wrong with the current system:

http://www.telegraph.co.uk/news/uknews/1575981/Woman-blinded-by-killer-on-early-release.html

Or,

http://www.dailymail.co.uk/news/article-509213/Yob-freed-early-beats-60-year-old-woman-recognition-wouldnt-cigarette.html

Hague received 18 months for kicking to death a 31 year old man. By the time he was sentenced, he’d already served almost all of this, and was released after a few weeks. On the day of his release, he beat a 60 year old woman to a bloody pulp, because she wouldn’t give him a cigarette.

Dalrymple makes two relevant points in this blog: http://www.spectator.co.uk/print/essays/6157713/prison-may-not-work-for-them-but-it-works-for-us.thtml

The first concerns the number of offences committed by people on bail:

“For example, in Scotland last year a fifth of all crimes, 32,546 of them, that ended in a conviction were committed by people already on bail — to say nothing of those committed by people on probation. Even taking the clear-up rate of crimes in Scotland seriously, as if it were an honestly collected statistic, this means that considerably more than 1 per cent of the Scottish population was victimised in a single year by criminals already on bail. Nearly a fifth of all murders and homicides, and a third of all burglaries and street robberies, were committed by people on bail.”

The second is that in the upside down world of Clarke et al, Hague’s actions “prove” that he should have been released early. You see, prison isn’t working!

“The second is that in the upside down world of Clarke et al, Hague’s actions “prove” that he should have been released early. You see, prison isn’t working!”

So we need an even bigger prison population when Britain’s per capita prison population is already among the largest in western Europe – and regardless of the cost? Try the links @40.

If the NHS and councils close down hospitals and hostels for those with mental health issues, it is predictable that many of those afflicted will engage in mindless, violent crime and end up in prison again – and again.

Bob,

If the NHS and councils close down hospitals and hostels for those with mental health issues, it is predictable that many of those afflicted will engage in mindless, violent crime and end up in prison again – and again.

Well, quite.