Thinking outside the box
Responding to the Independent Sentencing Review
The prisons are full to the point of “collapse”. England and Wales has “the highest incarceration rate in Western Europe”. We need “to fundamentally look again at sentencing policy”. This is the opening to a ‘call for evidence’ that finishes today, by the Rt Honorable David Gauke who is leading the Review. He has said:
“I encourage all those responding to the call for evidence to be ambitious, and I welcome any ideas which challenge current thinking, are innovative, or which spotlight best practice and how it can be extended, so we can build a justice system which is sustainable now and in the future.“
The Terms of Reference state:
“the review will be guided by 3 principles:
firstly, sentences must punish offenders and protect the public - there must always be space in prison for the most dangerous offenders
secondly, sentences must encourage offenders to turn their backs on a life of crime, cutting crime by reducing reoffending
thirdly, we must expand and make greater use of punishment outside of prison”
This is followed by 82 bullet points setting out what is in scope and also what is, related to the topic, but out of scope.
The response I have submitted is here:
“Dear Team,
My response to your review speaks to your three Guiding Principles but, unfortunately the bullet points that you provide have not included my area of expertise. My expertise is also not included in the topics that you have listed as outside the scope of your review. The Terms of Reference of your review omit any reference to one of the most important and common motivations for committing crime by people who are then given custodial sentences. If you wish to meet your Guiding Principles and affect custodial sentencing, how can your Review possibly exclude both the motivation of the majority of offenders and its antidote?
Former Labour Prime Minister Tony Blair described my area of expertise - and your Guiding Principles - as follows:
"We must remember that many criminals are motivated by money and profit. Leaving illegal assets in the hands of criminals damages society. First, these assets can be used to fund further criminal activity, leading to a cycle of crime that plagues communities. Second, arrest and conviction alone are not enough to clamp down on crime; they leave criminals free to return to their illegal enterprises, or even to continue their ‘businesses’ from prison. And third, it simply is not right in modern Britain that millions of law-abiding people work hard to earn a living, whilst a few live handsomely off the profits of crime.”
Tony Blair, Prime Minister’s Foreward to Recovering the Proceeds of Crime, June 2000
The introduction of the Proceeds of Crime Act, 2002, coincided with some of the greatest falls in acquisitive crime this country has ever seen. Under a Labour Government we moved decisively from a Twentieth Century approach to criminal justice to a Twenty-First century approach. Your review reverts back to the Twentieth Century for answers, when it should be looking at the spectacular success of the UK in the Twenty-First Century. Tony Blair recognised that the Proceeds of Crime was a cross-cutting factor that was omitted from the traditional thinking of the Ministries of Justice, Home and Treasury, which is why he instructed his Prime Minister’s Development Unit to review the Proceeds of Crime in 2004. The result was an increase to the tens of thousands of offenders who were subject to asset recovery orders designed to "encourage offenders to turn their backs on a life of crime” and "expand and make greater use of punishment outside of prison”. Your words, not mine.
I ask you to consider including the imposition of asset recovery orders in the scope of your review so that the hundreds of British experts currently working in this field of criminal justice can help you achieve your aims.
Kind regards, Tristram Hicks”
The crisis-driven circumstances of this Review and its Terms of Reference perfectly illustrate the reason why we are failing to use the main tools at our disposal in addressing crime in England and Wales and why we are losing the War on Dirty Money, more globally. We are so constrained by Twentieth-Century thinking that we are literally excluding Twenty-First Century solutions. The Terms of Reference cover seven Themes (History, Structures, Community Sentencing, Technology, Victims, etc.) and invite consideration of eighty-two bullet points.
None of this detailed and thorough document mentions the most common reason for committing crime - financial gain - nor its most obvious criminal justice response - asset recovery. There is a simple reason for this, this is a Sentencing Review addressing forms of punishment. Asset recovery is a not a sentence and is not a punishment, it is a vital procedure to recover the proceeds of crime (and thereby restore the status quo to the point before the crime was committed) so that sentencing and punishment can take place for the crime itself.
However from a criminal and public perspective these are technicalities. Being deprived of the proceeds of crime looks and feels like a punishement, a deterrent and a sentence by a court.
If we are to address the three principles set out by the Review, the powers of the Proceeds of Crime Act and the hundreds of people who work in the justice system should be within its scope. In writing this reponse I am challenging current thinking, being innovative and spotlighting best practice and showing how it can be extended, so we can build a justice system which is sustainable now and in the future - As The Rt Honorable David Gauke has set out above.
You might wonder why a humble blogger is writing this response. Why is this not being written by the National Police Chief lead for Asset Recovery or the Head of Proceeds of Crime Operations at the NCA. Maybe the Heads of Assets Recovery at HMRC, the FCA or even the Home Office should be leading this Response.
One reason is that none of those roles exist. There are officials who use POCA powers and oversee POCA policy, but none of them do so in isolation, they are wrapped in other duties to do with Fraud or Economic Crime, Trafficking or Tax Evasion. The thinking is constrained by the crime type, rather than expanded by thinking of strategic solutions, operational options and effective legal powers. The agenda is set in the Twentieth Century and has failed to keep up with developments in financial intelligence and compliance, failed to develop Accredited Financial Investigators, failed to grapple with cryptocurrency and online fraud, the explosion of the social media marketplace for stolen goods. We should in this Sentencing Review follow the example of the vast majority of criminals who are sentenced and follow the money.