The return of the deferred sentence?

Work with Offenders examines a new briefing from the Centre for Justice Innovation

Very many years ago when I was training to be a probation officer (to give you some idea of how far back in history we are talking about, one of my first cases was the post-release supervision of Cain for that well-known offence against his brother), deferred sentences were common practice. They were typically used with people who were relatively early on in their offending career and knew that they had a particular problem – drug dependency or a newly diagnosed mental health difficulty – which they needed to address. Magistrates’ Courts would often defer sentence for 3 to 6 months with the expectation that if the defendant made good progress in addressing these issues, they would receive a reduced sentence. Over the years, the deferred sentence has fallen out of favour alongside the advent of many new rehabilitation activities or requirements which can be added to community orders.

But could the deferred sentence be making a comeback? In the Government’s recent White Paper “A Smarter Approach to Sentencing”, there is a specific aspiration to encourage courts “to use existing legislation on deferred sentences”. The Centre for Justice Innovation (CJI) has just published a very concise and helpful briefing on the possible uses of deferred sentences, arguing that they could play “a crucial role in ensuring we have a justice system that is agile enough to give offenders a fair start on their road to rehabilitation”.

Evidence-informed deferred sentences

The CJI argues that deferred sentences offer courts the opportunity to place offenders in a meaningful community program while retaining the option of an alternative sentence based on the offenders’ engagement and compliance with that programme. In doing so, they follow a number of evidence-based principles.

Firstly, deferred sentences can encourage compliance with rehabilitative support through legal leverage – there is a good existing evidence base that “coerced” treatment for substance misuse problems is effective (provided that treatment is both readily available and is of a high professional standard)..

Secondly, CJI point out that deferred sentences make an important contribution to procedural justice – the concept that when people feel they have been treated fairly, they are more likely to comply with the criminal justice system in future and, potentially, less likely to reoffend. Deferred sentences fit well with two key concepts of procedural justice (also called procedural fairness) – transparency and respect. When a court imposes a deferred sentence, they are effectively offering the defendant a deal which implies that they believe that s/he can make a positive choice and control their own destiny. Defendants are fully informed of what will happen when they return to court depending on whether they keep or break the deal.

The third key principle is that when deferred sentences are used as an alternative to short-term prison sentences, they de-escalate contact with the criminal justice system and avoid the very negative consequences of incarceration such as losing jobs and homes.

Three approaches

The CJI draws on existing practice from all over the world to suggest three main approaches in which deferred sentences could be a useful sentencing option:

• Assessment and Referral Courts which encourage people to receive treatment for mental health issues in particular (currently used in Australia).
• Using deferred sentences as a way of opening up routes for victim-focused reparation work (an approach utilised in New Zealand).
• The use of deferred sentences in problem-solving courts to encourage participation in substance misuse treatment (currently operating in Scotland and Northern Ireland).

Conclusion

The CJI briefing concludes by identifying four critical success factors to ensure that more use is made of deferred sentences:

1. The introduction of guidance about when deferred sentences should be used, including in particular clear expectations about what type of cases the MoJ wants to be in scope.
2. An expectation that there will be a clear incentive (such as the dismissal of the case or an absolute discharge) if the defendant complies with the conditions of the deferment.
3. Roll out a number of pilot in areas where there are already existing liaison and diversion or community advice services available.
4. Invest in statutory support and leadership to ensure that the pilots have the best chance of success.