I got involved in quite a long exchange of posts on the Magistrates Blog. The subject was imprisonment in general. We started off with Merseyside’s Top Cop taking a pop at the Judiciary over mandatory sentences but it soon devolved into more general opinions. For what it’s worth, and in the hope of moving the debate a little, this is what I believe
I am a police detective, no particular axe to grind with the Criminal Justice System. I do think that senior Police Officers are always on a hiding to nothing when they take on the judiciary in public. There are more discrete and effective channels for that sort of discourse than radio interview and web-cast. The point has been made that even a mandatory sentence must have some wriggle room for special circumstances. So be it, I suppose.
WHY MANDATORY SENTENCES ARE’N'T (UNLESS YOU HAVE A VERY BAD LAWYER)
I do see this; once a particular special circumstance or situation become known to reliably reduce sentences, the number of defendants claiming this particular circumstance increases. It may be something to do with the advice given by solicitors. It may be a general word of mouth thing. This ability to shape a defence to a special circumstance seems to be particularly “viral” in the related area of asylum claims where it is so utterly blatant as to be axiomatic.
My belief, based only on watching defences mutate in response to law and developments in evidence is that the same process happens in criminal cases as well. I note that a conscientious solicitor would want to advise a client so as to best mitigate the effects of any criminal prosecution. There are some very clever boys and girls out there who make a very good living from being able to make the case fit the evidence. That’s their job. When we are lucky, we are the one’s employing them. It shouldn’t be about luck.
It then seems to me that when it comes to basis of plea and mitigation, the overworked judges and magistrates are not in any position to check the truth of what they are presented with and CPS / solicitors / barristers fall back on the tired old “the Crown accepts / my client assures me / I am instructed that.”
I imagine the following exchanges are not unusual

“Gottle of geer, gottle of geer”
Defence Barrister: “Would your Scrumptiousness care to give an indication on sentence for a guilty plea? Obviously it is in the public interest to avoid a long and costly trial, but of course it is my client’s right to insist on one. I do however have in my ink stained hand this cunning and recently constructed basis of plea which represents my clients special circumstances in admitting this offence. ”
HHJ Cocklecarrot: “You’re a very cheeky boy for asking but you have a persuasive face and a pleasant way with you. OK you’ve twisted my arm, 3 years for a guilty plea on the facts admitted in your basis of plea.”
Later upstairs
CPS Representative : “Well I know you got Lenny in possession of the gun but he’s offering a plea. We can’t really prove that his special circumstances don’t apply. It might not be in the public interest to have a trial and he will get 3 years after all”
Grizzled Detective: “It’s all a stitch up. Why do I bother. He never mentioned those circumstances in interview, he just no commented me. However, I am sick to the back teeth of taking on the CPS at court. This is not a hill to die on. Lenny will come again.”
Later downstairs
Defence Solicitor: “Lenny, you’re a lucky lucky boy. The forces of law have you bang to rights but if you throw your hand in against the very persuasive evidence, its 3 years with big remission. Take it to the mat and its 5 years no time off”
Lenny: “Cheers, three with remission and remand time, that’s nearly a walk out. Nice one”
My tuppence worth is that as we seem to be slowly heading towards an American style justice system, why not just get entirely honest about the process and allow proper plea bargaining before trial between CPS and defence solicitors? I know its expedient but it couldn’t be any worse than what we have now could it?
WHAT’S THE POINT OF PRISON?
And also, after an unglamorous (but generally satisfying) day of solid police work, I have been known to reflect that Prison is not about deterrence or reform, it is about containment.
If it was about deterrence, prison life would be tougher and nastier and harder. It isn’t.
If it was about reform, that aspect of the work in prisons would be much better funded and professional. It is not.
Reform attempts are probably better left to non-custodial interventions . All the stats I can find on the web say that they are about as effective as prison, maybe a few points better. They are at least lots, lots cheaper.

Community Punishment?
Prison for volume property crime and persistent lower level violent offenders is about containment. It’s society’s way of saying “You’ve had your chances, you’ve blown your chances, time to give the rest of us a rest from you”. Prisons are built, equipped and financed for basic containment because that is what they are meant to do. Form fits function.
Unless you want to recreate AbuGhraib on a commercial basis or return to the old days of The Clink or The Bastille, its a choice of containment or reform / rehabilitation. I think at the moment, we are doing default containment because
a) Nobody has found the magic key to reliable rehabilitation yet. There may not in fact be one. If this is the case then rats to rehabilitation, go for containment. I cannot help thinking that after 100 yrs + of Social Science and Penology, if there was a way, we would know it and be using it by now. Still, never say never.
b) Even if it is out there, no-one’s putting enough money into the system to make it work.
As a police officer or a tax payer, I would far rather be putting criminals into any process that has a good chance of reforming them. However, if I can’t do that, I will settle for containment on a community respite basis. Doesn’t need to be savage, doesn’t need to be chain gang or rock breaking, it just needs to be somewhere to keep them out of the way for a bit to give the neighbours a rest.