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Graham Smith
Jan Thompson
Graham Mumby-Croft


Paul Laxton
Issue 79 Autumn 2018
PRISON IS NO PLACE FOR OLD MEN

The explosion in historic sex offending allegations being pursued in court has inevitably been felt in the prison system. The number of incarcerated offenders over the age of sixty was already increasing exponentially before the Savile scandal broke in 2011. More than half of current elderly prisoners are sex offenders. Between 2004 and 2014 the number of over-60's in jail in England and Wales increased by
130%. By 2017 there were over 4,000 elderly offenders in custody compared to a grand total of just 442
over-60's serving prison terms in 1992. Compare this figure with the 70% reduction in the use of imprisonment for children in the last decade. According to the Prison Reform Trust, there were 226 prisoners over the age of 80 housed in our jails in September 2016. In December 2016 101-year-old Ralph Clarke became the oldest person ever to receive a custodial sentence when given a twelve-year jail term for historic sex offences, effectively condemning a man NOT serving a whole life tariff, to die in jail. Other than the obvious fact that a jury found him guilty, how have we got here?

As has been said the trend was upwards before the Savile scandal broke. It is not just about more prosecutions, but also very much about significantly more severe sentencing, sparked not by the judiciary, but by government guidelines to the courts which have encouraged longer prison terms. Two-thirds of convicted prisoners are now serving sentences of four years or more compared to 46% in 1993. One example of punitive sentencing illustrates the trend perfectly. In 2000 former professional footballer 44-year-old Graham Rix received a twelve-month custodial sentence for unlawful sexual intercourse with a 15-year old girl, pretty much the standard penalty for the offence at the time. Fast forward to 2016, 28-year old footballer Adam Johnson received a six-year sentence for the sexual grooming and sexual assault (until 2002 known as indecent assault) of a 15-year-old girl. The difference in the two sentences is jaw-dropping, particularly as it could be argued that Rix committed the greater offence, one of (unprotected) sexual intercourse, which had not taken place in the case of Johnson. Life sentence tariffs have also increased dramatically leading to middle-aged offenders graduating to elderly status and sometimes very elderly status before being granted parole.

For the avoidance of doubt, I am clear that the government and its’ law officers are perfectly entitled to pursue historic sexual offences against elderly and not-so-elderly people on our behalf. There is no statute of limitations on offences in this country, and no serious public campaign for one. They are also entitled to reflect public opinion, provided they do so accurately, in ensuring that fairly-convicted offenders receive substantial jail terms. The question in terms of sentencing is whether they should reflect public opinion, which is typically anti-offender, or whether they should seek to lead it. There is also a legitimate question to be asked about the increasing role of victims. If educational policy is too important to be left to teachers, then the punishment of crime is equally too important to be determined by victims. There are other stakeholders in the system, not least offenders themselves.

The plain fact is that prisons are ill-equipped to deal with large numbers of elderly prisoners. Prisons are not suitable places to cope with people with mobility problems, poor eyesight or poor hearing. They are not suitable places for people who are incontinent, have suffered strokes, or are susceptible to falls. They are most certainly not the places for sufferers of senile dementia. They are not suitable for those needing palliative end-of-life care. If, as Chief Inspector Peter Clarke says, our young offender establishments are not safe for young people, then our adult prisons are certainly not a safe environment for the old. No government has ever thought to make contingency plans for the outcomes, intended and unintended, of criminal justice policy with respect to historic sexual offending.

After being convicted, offenders of hitherto good character suffer financial, familial and reputational consequences that only have a limited effect on recidivists from sink estates or on sophisticated professional criminals. This is especially true of older offenders. Unless eligible for legal aid, a six figure sum in costs beckons. Former police officers may forfeit their pension. This is all before victims make a claim for compensation. Wives and grown-up children may well desert them along with lifelong friends and former colleagues. An individual's reputation is destroyed forever. The Golf club, the Working Men's club and the Masonic Lodge will close their doors permanently. A lonely old age with all the damage to health that implies is an almost-certain outcome. With all these dire consequences it is fair to ask whether a civilised society should be adding the burden of imprisonment except where the individual remains a genuine danger to the community.

How should we deal with these offenders? One idea is the development of what can only be described as secure old people’s homes. The environment can be specifically tailored to the needs of older and infirm people. The Chief Inspector of Prisons has voiced his support for this imaginative approach. A more radical approach would be imposition of suspended sentences for those elderly historic abusers who admit their guilt, most of whom would be unlikely to reoffend. I have no doubt that some victims of abuse would be unable to see the merits of this proposal and that is understandable given what they have suffered. Nevertheless, I submit that for a victim, an admission of abuse has much more to commend it than a conviction from a contested case where the defendant denies his guilt from the outset and continues to do so in prison. An admission of wrongdoing must surely count for a great deal. The issue of compensation orders by Crown Court judges to save victims the hassle of pursuing offenders through the civil courts is something that could be considered. The concept of "blood money" is an established feature of some Eastern jurisdictions. There is no overwhelming reason a society that seeks to keep its children out of prison wherever possible, cannot adopt that approach for its older citizens.

As a form of punishment prison is just about the most expensive we could devise at £35,182 per prisoner place per annum in 2015-16. Custodial sentences are normally expected to serve four purposes: protecting society by removing the offender from circulation, retribution, deterrence, and reform, the last of these more typically described as reducing reoffending. Prison is spectacularly bad at reducing reoffending and hopeless as far as sex offenders are concerned, particularly now that the Sex Offender Treatment Programme is discredited. Long sentences for elderly prisoners do take them out of circulation, but they are also in many cases a death sentence. Under our laws, only the very small number of prisoners convicted of the most heinous murders are supposed to die in prison. This is very little evidence that prison is an effective deterrent for sex offenders. This leaves only retribution and it seems to me that at the moment that is all prison achieves, particularly when dealing with older offenders.

It's time for change and time for a government to run ahead of public opinion. 

PAUL LAXTON
(N.B. This article is representative only of the personal opinions of its author and should not be construed as in any way representing the views of the Prison Governors Association or the Retired Prison Governors Association.)