Reader’s Feast | Crime and Punishment: why do we punish offenders?

This is a transcript of Master David Stockdale’s Reading, delivered at Reader’s Feast on Wednesday, 13 November 2024.

First and foremost, I would like to thank the Benchers and Members of Middle Temple for inviting me to serve as Reader. It is a privilege and a great honour to be standing here. Thank you. It’s a particular pleasure to be doing this job as a Circuiteer and as a former member of that unsung workforce in the Criminal Justice System, the Circuit Judges. This one is for the Circuit Judges – but also for one in particular. My old comrade-in-arms on the Northern Circuit, the former Recorder of Liverpool, Clement Goldstone, Master Goldstone, was Autumn Reader in 2020 but was denied a Reader’s Feast by the Covid pandemic. This one’s for you, Clem. 

I also owe a debt to the late, great Paul Darling. It was he who put me up to this. Paul and I had a ball doing student training sessions together at Cumberland Lodge and in York and we did four wonderful Call to the Bar ceremonies, here in Hall, in July. It gave him huge pleasure as Treasurer to usher in the next generation. He was irrepressible and is irreplaceable. 

This talk is about the philosophy of punishment. The subject is chosen partly because it complements the programme of talks on philosophy and the law, put together by Master William Godwin, partly because it is topical and partly in response to a request from Christa Richmond. A request from Christa Richmond is a misnomer. Everyone in this room knows Christa Richmond, the Director of Education in the Inn, and everyone knows that a request from Christa Richmond is an ‘unless order’. Non-compliance will bring adverse consequences, which is apposite for a talk on punishment. The request was to include an educational component sufficient to allow the students to be awarded their QS points. So, if there is a sliver of education in all of this, you now know the reason why – and it is terrific to see so many students in Hall tonight. 

I wanted to talk for a short time about the philosophy of punishment and about ways in which our philosophical approach to punishment appears to have shifted in recent times. I should make it clear that this is not a talk about the early release of prisoners or about sentencing or the severity of sentences handed out for particular offences, although we might touch on some of those things. Even less is this a talk about the present state of the Criminal Justice System. Don’t get me started on that. 

No, this is about the philosophy of punishment. Why do we punish offenders? Who should be punished? What is the point of punishing offenders? What do we hope to achieve by punishing offenders? These are philosophical questions which, I think, are interesting and important and not just to professional philosophers. Philosophy is for all of us. The big themes that are the business of philosophers – knowledge, reason, freedom, identity, truth, goodness, justice, to name a few – are the concerns of us all. The philosophy of punishment is important. I am speaking of punishment of the individual by the state. What could be more important than the legitimised deprivation by the state of an individual’s liberty? I would challenge any newly appointed part-time Recorder, sentencing for the first time an offender to a term of imprisonment, not to feel an awesome weight of responsibility. 

Early Thinkers

The philosophy of punishment is timeless. If you booked in online for this session, you may have seen a short extract I posted there from Plato’s dialogue, the Protagoras. Plato lived between about 427 and 348 BC. Almost 2,500 years ago, in the Protagoras, Plato said this: 

In punishing wrongdoers, no one concentrates on the fact that a man has done wrong in the past, or punishes him on that account, unless taking blind vengeance like a beast. No, punishment is not inflicted by a rational man for the sake of the crime that has been committed (after all, one cannot undo what is past), but for the sake of the future, to prevent either the same man or, by the spectacle of his punishment, someone else, from doing wrong again. [Protagoras 324b-c] 

Those words could have been written yesterday. 

Classical texts are sprinkled with diamonds like that, but we need to move on. Before we do, perhaps you will allow me one more classical indulgence. The Reader’s Feast is the one night on which the Reader can be indulged. One of my favourite episodes, as a schoolboy learning Greek history, was the account in Thucydides of the Mytilenean Debate. It will be familiar to the classicists present. This took place in 427 BC, about the time Plato was born. It is relevant to tonight’s discussion. Bear with me. To put it in context, Athens was then the leading naval power in the Eastern Mediterranean, having defeated the Persians about 50 years earlier. She was the head of the Delian Confederacy, a strategic and economic union of city states. One such city was Mytilene, on the island of Lesbos. In 427 BC, the people of Mytilene decided to leave the Delian Confederacy. Their timing was not accidental. There had been a terrible plague in Athens, there was a war going on with Sparta and the Athenian grip was weakening. Members of the Athenian Assembly, on hearing of the revolt in Mytilene and suspecting (correctly) that the Spartans were behind it, took a vote and decided to execute every adult male in Mytilene and sell off all the women and children into slavery. A ship was duly sent to Mytilene to carry out this deadly punishment. The next day, the Athenian Assembly reconvened, had second thoughts and decided to rescind the previous day’s decision. Unfortunately, the ship had sailed the day before, with the order to execute all the males and enslave all the women and children. And so, a second ship set off in pursuit, 24 hours behind the first. Thucydides describes how, on the second ship, there were two teams of oarsmen working in shifts, being fed and watered as they rowed; and how they reached Mytilene just after the first ship had arrived and were able just in time to avert the slaughter. It was an exciting story. Unfortunately, it didn’t end happily for everyone. As a precaution, the Athenians still rounded up over a thousand of the ringleaders and executed them. Just to be on the safe side. But it is that debate in the Assembly on the second day, recorded by Thucydides, who was there in person, the Mytilenean Debate, that has kept scholars busy for generations. Scholars and punishment theorists, as principles of punishment were tossed first one way, then the other by the Athenian Assembly. Speaking in favour of the mass execution was Cleon. Cleon was a loud and powerful orator, whom Thucydides did not like, a populist and a demagogue and ‘by far the most persuasive speaker in the eyes of the people’. Also, ‘the most violent among the Athenian citizens’. You may think there are a few Cleons living and working and appearing on our airwaves today. It was Cleon’s demagogic oratory that won the day on day one and he repeated it on day two. He told the Assembly to stand firm, not to be swayed by compassion, to ensure that Athens commanded respect; that laws passed, or decisions taken (even bad ones) should not be changed; the Assembly should trust its instincts, follow his lead as a man of the people and give the Mityleneans what they deserved. (He said: ‘Make Athens Great Again’. No, he didn’t say that, but he could have done.) ‘Pay them back for it’,he said, ‘Do not go soft’. Diodotus spoke in opposition: he said everyone should calm down; acting tough would not deter others from rising in revolt; it was not a matter of compassion: the Athenians should act in their own interests and, if they were seen to treat other member states well, they would not rise in revolt: 

‘The question before us as sensible men is not so much whether they are guilty as whether we are making the right decision for ourselves. I might prove they are the most guilty people in the world but it does not follow that I shall propose the death penalty, unless that is in our interests… In early times the punishments even for the greatest crimes were not so severe as they are now but the laws were still broken and in the course of time the death penalty became generally introduced. Yet even with this the laws are still broken. Either, therefore, we must discover some fear more potent than the fear of death or we must admit that here certainly we have not got an adequate deterrent.’

And so, amongst the ancients, the historian Thucydides and, a little later, as we have seen, Plato, captured in a nutshell the competing retributivist and consequentialist theories of punishment. There is nothing new in the world. The question, ‘why do we punish offenders?’ is as old as the hills. The Mytilenean debate also serves to remind us, if we need reminding, how easily decisions on important questions, such as why we punish offenders, can be influenced by populists and those who shout the loudest. 

Consequentialism

We must move on. The complexities and nuances of punishment theory are so many and varied that I can’t do them justice here. I must abbreviate and simplify and for that I apologise. Let us first look at consequentialism. In doing so, we respectfully bow to Jeremy Bentham and John Stuart Mill, the fathers of utilitarianism. Utilitarianism is the ethical theory that promotes happiness and wellbeing – or utility – for the majority of citizens. Bentham described utility as: ‘that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, happiness…or to prevent the happening of mischief, pain, evil or unhappiness to the party whose interest is considered.’ Utilitarianism is a subspecies of the more modern notion of consequentialism. Consequentialist theories are forward looking (the clue is in the name; it’s written on the tin). They claim that the infliction of punishment is morally right because it brings better consequences than would any alternative. Classical utilitarians like Bentham and Mill looked to happiness as the appropriate measure of the goodness of a state of affairs. Modern theorists take as the relevant measure the satisfaction of the preferences of the individuals in the state of affairs. It matters little for present purposes. Consequentialists identify a number of consequences of punishment to explain why the practice of it maximises ‘goodness’. Punishment, it is said: 

• Deters others from behaving as the offender did (general deterrence) 
• Deters the offender from re-offending (specific deterrence) 
• Alters the offender’s character or values, so that he no longer wishes to offend (rehabilitation or reform) 
• Disables unreformed offenders (incapacitation) 
• Affords opportunity for reparation (restorative justice) 
• Reinforces the societal norms that have been violated (normative validation) 

The deliberate infliction of the suffering involved in punishment is in itself an evil, but it is justified by its good consequences. 

Retributivism

Retributivists, by contrast, regard punishment as an intrinsically good thing, a good response to criminal behaviour. It is intrinsically good because it: 

• ‘Annuls’ the crime; it cancels it out 
• Restores a proper balance of benefits and burdens in society 
• Expresses judgment of the criminal act 
• Gives the criminal what he deserves (subject always to proportionality) 

Retributivism is backward-looking. What justifies punishment is not its consequences but its bearing of a proper relationship with the earlier criminal offence. 

Problems

Each of these competing theories comes with its own snags. Some of the problems with consequentialism are: 

• Criminals are not in fact deterred. They offend, re-offend and re-offend again. That’s what Diodotus said 2,500 years ago in the Mitylenean Debate. (We’ll come back to deterrence later.) 
• Why confine punishment to the guilty? Why not punish the innocent if it brings a greater happiness? That would be a pure form of utilitarianism. It wouldn’t matter if the offender had committed the offence, so long as everyone believed he had. In fact, perhaps even that wouldn’t be necessary: Cleon was all for punishing the innocent in the Mitylenean Debate. 
• Why not pretend to punish offenders? If the general public were hoodwinked into thinking punishment had been inflicted, surely that would suffice even if it hadn’t? (Jeremy Bentham came up with that one. He postulated the public hanging of a lifelike effigy of the offender, as providing a sufficient deterrent to others.) 
• How much should we punish? The strict utilitarian would allow the severest penalties for the most minor offences. Cut the hands off a few shoplifters and the problem of shoplifting is solved for everyone. Should there not be a moral fit between the offence and the quantum of punishment? 

Finally, it is said, consequentialism is simply unjust. The theory provides no room for guilt, moral accountability or blameworthiness. No denunciation or censure. No regard for the concept of desert. 

Retributivism brings with it similar problems: 

• The very term connotes retaliation, and revenge. It is vindictive. 
• The needs of the offender are ignored. 
• The needs of society are ignored. 
• It requires the punishment of wrongdoing whether or not criminality is thereby reduced, whether or not any practical good comes of it. 
• Justice is sidelined: there is a pricing system and, if you commit a crime, you pay the price. 
• The punishment can never ‘fit the crime’ anyway; it never does. 

I have oversimplified but one gets the idea. 

As wide-eyed university students dabbling in these ideas in the heady days of the late 1960s and early 1970s, we had little difficulty deciding which side we were on. Consequentialism may have had its problems but at least it gave punishment an appropriate, laudable sense of purpose; some good would come of it; retributivism was no more than what Plato had called the mindless vindictiveness of the beast. 

The question I ask tonight is twofold. Where, in this philosophical divide, do we as citizens now stand and has our position shifted? I believe that it has. 

Philosophical Shift

I think there are a few pointers: 

In recent times, we have not gone soft on crime. On the contrary, we have gone hard on crime. In 1991, our prison population (England and Wales) was just short of 40,000. Today it is over 88,000. In 33 years, it has more than doubled. We now have the highest per capita prison population in Western Europe. The reasons, principally, are twofold: sentences for serious offences have got longer and longer and non-custodial disposals for less serious offences have been under-used. (There are other technical causes – eg a requirement that prisoners serve a minimum of two thirds rather than 50% for serious offences and stricter licence provisions, resulting in more recalls into custody.) The proportion of immediate custodial sentences for indictable and either-way offences has increased, just as other disposals have decreased; sentence lengths have increased; almost 11,000 prisoners are now serving indeterminate sentences. Over the last 50 years, sentences as a whole have approximately doubled in length. 

Why have sentences increased? The reasons are complex. For a very recent review, I would respectfully recommend a powerful paper, ‘Sentence Inflation; a Judicial Critique’, hot off the press (6 September 2024), published by the Howard League for Penal Reform, signed off by a formidable team of four former Lords Chief Justice and one former President of the then Queens Bench Division and Head of Criminal Justice: Lord Woolf, Lord Phillips, Lord Thomas, Lord Burnett and Sir Brian Leveson; of whom three are Benchers of Middle Temple. (In case you were wondering, the Howard League for Penal Reform is named after John Howard, an 18^th  Century prison reformer, not Michael Howard, who as Conservative Home Secretary famously said in 1993 that ‘prison works’.) The distinguished authors of the Howard League paper identify ‘Sentence Inflation’ as lying at the heart of the problem. Sentence inflation is attributed to ill-considered legislative changes. Examples of this being: the statutory starting points for the minimum term in life sentences for murder, set out in Schedule 21 to the Criminal Justice Act 2003 (now the Sentencing Act 2020); Schedule 21, described variously as ‘hastily conceived’ and ‘fundamentally flawed’, has distorted sentencing proportionality and driven up sentences for other offences. There have been other enactments, such as the many Criminal Justice Acts, increasing statutory maxima for causing death by dangerous driving, for example, and creating mandatory minimum sentences forfirearms offences, repeat burglaries and drug dealing. That is not to mention the Imprisonment for Public Protection (IPP), the indeterminate sentence for public protection; over 2,700 prisoners are still serving IPPs. Of these 1,100 have never been released and recalled and of these 64% have now served more than 10 years over tariff. The IPP was described by the late Lord Brown as ‘the greatest single stain on our criminal justice system’. 

These changes have an obvious knock-on effect on sentencing law and policy. They interfere with sentencing practice. They disturb the work of the Sentencing Council, whose job it is to maintain a proportionate structure for sentencing. They drive sentences of imprisonment ever upwards. 

And what has prompted successive governments – of no particular political colour – to pass legislation calculated to send prison sentences spiralling? Well it seems to have been a perceived need to respond to calls to ‘get tough on crime’, whipped up by a combination of the tabloid press, social media, some distressing, high-profile cases, some single-issue campaigns, a renewed and understandable sympathy for victims (we’ll return to that) and a volume of noise made by populists of the ‘hang ‘em high’ persuasion (like our friend, Cleon), addressing a public with little or no understanding of how sentencing works. 

What happened to rehabilitation? Rehabilitation is off the menu. We imprison rather than rehabilitate and, within prison, we do not rehabilitate. We warehouse. Last year (2023), HM Inspectorate of Prisons found that 42% of inmates surveyed spent more than 22 hours per day in their cells. Violence, drug dependency, corruption, mental ill health, self-harm and suicide are rife. Dostoyevsky famously said that ‘The degree of civilisation in a society can be judged by entering its prisons’.If that is the measure, our civilisation is going backwards. Access within prisons to libraries, gyms, employment, education, training for reintegration are severely restricted, mainly due to overcrowding, staff shortages and lack of funding. The short-term solutions now on the table are early release provisions, reduction of court sitting days (so that sendings to prison are delayed in time) and leave being given to judges, by the Court of Appeal Criminal Division and the Sentencing Council, to take account of prison overcrowding when fixing sentence. Despite the cost of incarceration in human and in financial terms (almost £52,000 per prisoner per year), both the previous and present governments have pledged to create some 20,000 new prison places. Compare Norway, Sweden and Denmark, where – at a cost, obviously – the emphasis within prison and following release is all on treatment and rehabilitation. ‘Working with offenders rather than doing things to offenders.’ 

Well, I hear you consequentialists say, crime is on the increase and maybe tougher sentences are needed to deter serious (and less serious) criminals (generally and specifically). 

Wrong on Both Counts:

First, crime is on the decrease, not the increase. The Office for National Statistics’ crime survey for 2024 demonstrates clearly a long-term decline in what are called ‘common types of crime’ over the last 30 years – that is, theft, robbery, criminal damage, violence, fraud, computer misuse and so on. Homicide has decreased. So too has the volume of violent crime of every other type. And that has nothing to do with tougher sentences. Research across all Western jurisdictions demonstrates that the falling crime rates are down to socio-economic factors – alongside some other things like improved security and surveillance, improved investigatory techniques and an ageing population and so on. It has nothing to do with sentencing. 

Second, imprisonment does not deter. At least not in the way we might expect. The Sentencing Council has just published (24 September 2024) its paper, ‘Reconceptualising the Effectiveness of Sentencing’, in which the effectiveness of sentencing is considered from four perspectives: those of the offender, the public, the victims and the sentencers (the judges). This paper distils a mass of research, analysis and scholarship on sentencing. As to the perspective of the offender, the question of deterrence involves infinite variables, and of course, deterrence requires that the would-be criminal has some degree of reflective capacity before committing the crime – at least enough to consider the consequences – and many crimes are committed in the heat of the moment. But all that said, there is no robust evidence that harsher sentences produce greater ‘marginal deterrent’ effects. (‘Marginal deterrence’ being the extent to which the comparative severity of a sentence affects the decision-making of offenders.) That is, you may think, a remarkable conclusion. The more consistent finding, in deterrent research (the 2022 Review), is that it is increased certainty of apprehension and punishment that produces the significant deterrent effect. In other words, it is the prospect of arrest and conviction that deters, not the severity of imprisonment. Imprisoning criminals for longer is not as effective as increasing the risk of arrest and conviction. ‘The process is the punishment.’ And as to specific deterrence – the deterrent effect on the individual offender – research shows overwhelmingly that non-custodial or suspended sentences, with associated programmes for rehabilitation and reintegration, produce a statistically far more significant reduction in re-offending. In Norway, where they rehabilitate, the reconviction rate of released prisoners is 17.6%; in England and Wales, it is 38.9%, more than double. (Our probation service, which manages offenders, is now on its knees: following the disastrous decision (some might say risible decision) to privatise a large part of the service in 2014 (reversed by 2021 – at a cost of £500m to the taxpayer), experienced probation officers have left the service in droves; some probation areas now have below 50% of the staff they need, those remaining having completely unmanageable workloads. All types of rehabilitative programmes have suffered financial cuts. Spending on each individual on probation, in real terms, has fallen by 40% in the last 20 years. One might say we simply don’t care about rehabilitation. Little wonder the reconviction rate is so high). 

Lord Timpson said recently: 

‘Britain is addicted to punishment. We think the answer to everything is to punish more heavily, when there is no evidence, anywhere in the world, that says, if you have a longer sentence, someone is less likely to commit that crime.’ 

So, sentences are getting longer, longer sentences don’t deter criminals and crime rates are falling anyway. In these circumstances, why are we punishing offenders in the way we do? 

Statute

Is the statutory framework a contributor? Parliament has defined the purposes of sentencing. Section 57 of the Sentencing Act 2020 (formerly s.142 Criminal Justice Act 2003) sets out the five purposes of sentencing, to which ‘the court must have regard’ (it is mandatory): 

• The punishment of offenders 
• The reduction of crime (including its reduction by deterrence) 
• The reform and rehabilitation of offenders 
• The protection of the public 
• The making of reparation by offenders to persons affected by their offences 

That is a mix of consequentialist and retributivist purposes. The first-named purpose is simply ‘punishment’. After that come deterrence, reform and rehabilitation, public protection and reparation – but the application of the provisions is essentially retributive. The editors of Archbold frankly acknowledge that the Sentencing Code, which is contained in the 2020 Act, ‘employs a principally retributive scheme’. Section 63 of the Act requires the sentencing court, when considering the seriousness of an offence, to consider (‘must consider’; mandatory) 

‘(a) The offender’ s culpability and 

(b) Any harm which the offence caused or was intended to cause or might foreseeably have caused’ 

Culpability and harm. And the Sentencing Guidelines, which the courts must follow (section 59; mandatory) unless it would be ‘contrary to the interests of justice’, are framed accordingly. In every guideline, the starting point for a sentence is fixed in accordance with an assessment of seriousness, which in turn is arrived at by a measurement of culpability and harm. Adjustments are then made for aggravating and mitigating factors, for guilty pleas, dangerousness, totality and so on. But the statutory watchwords are culpability and harm and once an offence climbs a few rungs up the ladder of seriousness, measured by culpability and harm, the options for a non-custodial outcome fall away. 

And a by-product of the guidelines is that the sentencing court now hears competing submissions, from prosecution and defence, usually in writing as well as orally, on the appropriate guideline category into which the offence falls. Gone are the days when the only time prosecution counsel addressed a court on sentence was to remind the judge of the maximum sentence for the offence and, in a rare case, to draw attention to a relevant Court of Appeal authority. Prosecutors now press for that finding of higher culpability or greater harm. And in high-profile cases, we now have the additional spectacle of a senior police officer standing outside the courthouse, explaining to the media how the offenders have been locked up for years and how the public has now been saved from the menace in question. 

I said I would return to the victims of crime. This is a difficult point to make. For too long the courts took no obvious account – took insufficient account – of the needs of the victim or the effect on the victim of the offender’s offending. It was left to the sentencing judge to make his or her assessment. Victims themselves felt marginalised if not ignored. In 2004, the first Code of Practice for Victims of Crime was issued, and it is regularly revised and updated, giving victims 12 fundamental rights, under which they are to be supported and informed throughout the investigatory and court processes. There is now a Victims’ Commissioner, the first appointed in 2010, the current one Baroness Newlove, herself the victim of a truly horrific crime. Victims have the right to read or have read out in court a Victim Personal Statement, explaining the effect of the offending on them and on others – physically, emotionally, psychologically, financially and so on. A Victim Personal Statement is not permitted to contain the victim’s views on sentencing. I have heard countless Victim Personal Statements, and, in many cases, they are frankly harrowing. Thank goodness, it may be said, that we now pay due regard – or closer regard than we did – to the often appalling effects of offending on victims. But there is a philosophical consequence. The Victim Personal Statement is relevant to s.63 of the 2020 Act and the court’s assessment of seriousness, by reference to culpability and harm. Prominence is given to the harm done and, whilst a Victim Personal Statement may assist a victim in finding closure and in seeing justice done, it is also there to be taken into account on sentencing. It is there again, later, at tariff review hearings and Parole Board hearings. Again, the victim has a say, which can affect the timing of the offender’s release. And so, the weight given to a victim’s account of his/her suffering informs the punishment administered. Now consider, if you will, the lone victim, with no friends and no relatives robbed and murdered in his lonely flat. No Victim Personal Statement there. Consider the same offence committed against a person with close family and friends, whose painful Victim Personal Statements are read out to the court (and perhaps picked up and broadcast by the media). Is the offending in one case any worse than in the other? Should the sentence be any different? 

In April 1995, Timothy McVeigh set off a bomb in Oklahoma City that killed 168 people and injured over 500 others. On 11 June 2001, he was executed by lethal injection. There were 24 eyewitnesses to the execution, and 230 others, mainly victims, watched it live on CCTV. President George W Bush said, ‘The victims of the Oklahoma City bombing have been given not vengeance but justice’. Victims in the UK have not sought anything so extreme, although in late 2023, in response to publicity given to a high-profile case, the then government promised legislation to have convicted defendants brought to court under compulsion to be sentenced – this in complete disregard of the practical difficulties it would bring to the court process. The irony is that, by and large, victims don’t actually want revenge. There seems to be a disconnect between what victims want and what commentators, particularly commentators who speak loudly, think that victims want. Research suggests strongly that for many victims, their actual wish is not vengeance; it is only to feel they have a voice, to be listened to and to be treated with humanity, dignity and respect. 

Public Opinion

Public opinion has a lot to do with why we punish offenders as we do. One of the remits of the Sentencing Council is ‘to promote public confidence in the criminal justice system’ [s. 128 Coroners and Justice Act 2009] and the Council conducts a range of consultations accordingly. Judges have to explain their sentences, and they do so in detail and often at great length. No longer, ‘This is a dreadful offence for which you will serve 10 years’ imprisonment. Take him down.’ Sentences are fully explained, often transcribed for the media and sometimes televised. Public understanding of sentencing, you may think, is central to its effectiveness. Recent Sentencing Council research into public perspectives has resulted in publications in 2019 and 2022. The Sentencing Academy also conducts separate research, and in 2023, the House of Commons Justice Committee published its own report on public opinion and understanding of sentencing. The problem is that what the public thinks about sentencing practice doesn’t always match reality. The general view of the public, from research data, is that sentences are too lenient (no surprise there); many think sentences have become shorter (they haven’t); also, that crime is on the increase (it isn’t). Again, perhaps no surprise. What is a surprise is (from Scottish research) that, when the public is asked what the aims of sentencing should be, the response is: 

• Delivering proportionate punishment 
• Rehabilitation and addressing the causes of offending 
• Deterring people from offending 
• Holding offenders accountable 
• Helping offenders face up to the wrongfulness of their offending 
• Showing victims justice has been done 
• Repairing harms 
• Providing closure – for victims, the public and others 

Notice how most of these aims go beyond simple punishment. Yet the public thinks sentences should be harsher. The inference to be drawn may be that a falling crime rate and the increasing lengths of sentences will not make a difference to public opinion unless and until the public understands how sentencing works. Further research into this is much needed. One does fear that commentary in the media, in which tougher sentences are promoted as the solution to criminality, has a lot to answer for. Properly informed public opinion is vital to the effectiveness of sentencing and sentencing policy. 

Conclusion

Drawing these strands together, I believe that, in just a few decades, we have undergone a significant philosophical shift towards retributive punishment of offenders, a consequence of hasty legislation, driven by a perceived need to respond to ill-informed populist rhetoric, and a misunderstanding of the value of rehabilitative disposals. The supreme irony is that, whilst most of the public seems to think (wrongly) that serious crime is on the rise and (wrongly) that sentences are more lenient than they used to be, when asked what they think sentencing should seek to achieve, they list standard consequentialist objectives of rehabilitation, deterrence, reparation and so on. If the philosophical shift is to be reversed, I believe we must start with more effectively informed public opinion. 

I leave the last word to the four former Lords Chief Justices and the former President of the Queen’s Bench Division. The last, powerful paragraph of their recent paper for the Howard League reads as follows: 

The current crisis in prisons has meant that there is now political engagement at the highest levels of government with the question of who goes to prison and for how long. While much of the discussion of the crisis has focused on urgent remedial measures, the source of prison overcrowding in 2024 is decades of sentence inflation. If prisons are to become places of rehabilitation and restoration to citizenship, places where prisoners can receive the support and interventions needed to return safely to the community and desist from offending, there needs to be a fundamental shift in the drivers of sentencing policy. 

We call for an honest conversation about what custodial sentences can and cannot achieve; their human and financial costs; and urge a return to more modest proportionate sentences across the board. Without urgent remedial action to address sentence inflation, this country will soon experience US-style mass incarceration.’

And so say all of us. There does indeed need to be a fundamental shift in the drivers of sentencing policy. But, I suggest, there also needs to be another shift, which is wider and more deep-seated: a philosophical shift. The pity of it is that, if members of successive governments over the last few decades – and a few Justice Ministers – had troubled to read Jeremy Bentham or John Stuart Mill or, for that matter, Thucydides or Plato, the hole in which we now find ourselves might not have been so deep. 

Actually, I’ll leave the last word to someone else. There is room for dark humour in punishment. Some here will remember a star on the Northern Circuit, one Roger Farley, a criminal Silk, a member and a Bencher of Middle Temple, now no longer with us. Roger was a no-nonsense, plain-speaking man from Blackburn and a criminal Bar street fighter. He was once defending a Manchester gangster on a very serious charge. The trial was difficult, and the client was obstructive throughout. He was convicted on overwhelming evidence and sentenced to a very long term of imprisonment. Roger went down to the cells to see him afterwards. The client was ranting and raving, ‘twenty years!’, he shouted, ‘twenty effing years for something I didn’t do!’ ‘Well never mind’, said Roger, ‘look at it this way. Think what you would have got if you had done it.’ What Jeremy Bentham would have made of that I cannot say.

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