Kenneth Clarke is buying time for prison sentencing reform - The Guardian

It's not often that a government department admits that its contribution to law reform is to do not very much followed by nothing at all.

But that's just what the Ministry of Justice proudly proclaimed: "In response to the Breaking the Cycle consultation, we announce: a new offence of aggravated knife possession, with a mandatory prison sentence of at least six months; no reform of murder sentencing under schedule 21; no further discount for pleading guilty early."

Breaking the Cycle is not, of course, a new offence of criminal damage. It is the consultation paper last December that was so effective in hiding the proposed "maximum discount of up to 50% … for those who plead guilty at the earliest stage" that not even David Cameron noticed it.

But don't believe everything you read in a government press release. A glance at the legal aid, sentencing and punishment of offenders bill establishes that the planned new offence is not knife possession or even aggravated knife possession. It is threatening someone with an offensive weapon in such a way that there is an immediate risk of serious physical harm. That must mean something as dramatic as holding a knife to someone's throat or a gun to their head, which are already offences under existing law.

And the sentence will not be mandatory. A court will not have to pass the six-month minimum if there are circumstances relating to the offence or the offender that would make it "unjust" to do so.

Schedule 21 of the Criminal Justice Act 2003 sets the "tariff", or minimum term, that murderers must serve. In December, the government said it was "based on ill-thought out and overly prescriptive policy. It seeks to analyse in extraordinary detail each and every type of murder. The result is guidance that is incoherent and unnecessarily complex, and is badly in need of reform so that justice can be done properly in each case".

So what's changed since the consultation paper?

There may, indeed, be no "further discount" for an early plea of guilty. But defendants will still get a third off if they own up. And most defendants will still be let out halfway through their term. So the six months for "aggravated knife possession" could be as little as two months – or even less if the prisoner is released under the home detention curfew scheme.

Look more closely at Tuesday's announcements and you will see that they are driven by the need to keep offenders out of prison. Look at magistrates courts: Labour took powers in 2003 to increase the maximum prison sentence that magistrates could pass from six months to 12.

The idea, as I recall, was to avoid the need for more serious offenders to be sent to crown courts for sentencing. But introducing these powers would inevitably have led to sentence inflation; they were never brought into effect and will now be repealed.

And what about bail? The amendments in schedule 10 of the bill are complex and difficult to follow. But what they mean is that defendants who might now be remanded in custody pending trial will be granted bail if it appears to the court that there is "no real prospect" that they will be sent to prison at the end of a trial. But how does the court know that? And why should the courts be deprived of this valuable power?

The government could cut the prison population by 2,400 – on last year's figures – if it released all prisoners serving open-ended sentences of imprisonment for public protection (IPP) who have completed their minimum term, or tariff. But that would risk headlines about dangerous offenders being released into the community.

So Kenneth Clarke has fudged it. Last December, the justice secretary said he intended to restrict IPPs to offenders who would otherwise have merited a fixed sentence of 10 years. Those who had served their tariffs would be released, he suggested, unless they "clearly posed a very serious risk of future harm".

Now, though, he is conducting an urgent review "with a view to replacing the current IPP regime with a much tougher determinate sentencing framework".

That should buy some time. But what about prisoners on IPPs already? It would be unlawful to give them "much tougher" fixed sentences. Expect them to be quietly let out.

And the courts will be given powers to suspend sentences of up to two years instead of one at present, allowing non-custodial sentences for more serious offences. But suspending a sentence means there is a risk that an offender will be imprisoned for a breach. That's the last thing the government wants so courts will have the option of fining offenders instead.

Just in case the government has left anything out, ministers are taking the now traditional "Henry VIII" powers to make regulations amending acts of parliament. Those powers will allow ministers to reduce the maximum term of imprisonment for particular offences – when tried by magistrates – to six months or even less.

I suppose that's yet another way of bringing down the prison population.