The publication of David Gauke’s recent sentencing review marks one of the most in-depth recommendations in the criminal justice conversation for a long time. This review has been made necessary by the over sentencing that has led to the prisons almost reaching capacity. As a criminal defence solicitor, I welcome its ambition to rebalance our current approach towards one that puts rehabilitation and prevention first. But while the proposals are practical and rooted in a clear understanding of what drives reoffending, the question must be asked: do they go far enough?

Removing overused custodial sentences in favour of rehabilitation

At the heart of Gauke’s recommendations is a firm stance against custodial sentences under 12 months. He argues they are ineffective, destabilising, and often only facilitate the cycle of reoffending. Instead, he proposes a presumption against short sentences , reserving them for only the most exceptional cases. This is an important and overdue move.

For those of us who work with individuals facing the criminal courts daily, the evidence is clear, short sentences disrupt housing, employment, treatment, and family ties. They are not corrective. Community-based alternatives if properly funded and supported can achieve far more in terms of addressing the root causes of criminal behaviour.

Earned progression – what is it?

The review also puts forward an earned progression model, where individuals can be released after serving one-third of their sentence if they engage positively with prison regimes. Crucially, this model requires that prisoners accept responsibility for their offending behaviour, demonstrate good behaviour, and participate in rehabilitation programmes. This principle of earned progression is a shift towards accountability and structured reintegration. Importantly, it places the onus on the individual to engage with the system constructively, with the incentive of early release.

However, safeguards will be needed to ensure that this requirement for "acceptance of responsibility" is not misapplied. It is crucial that we do not allow a situation where individuals with mental health conditions or communication difficulties are unfairly denied progression.

Even more crucially there shouldn’t be any perverse incentive to admit guilt purely to access release mechanisms. Only last week we saw our long-standing client Peter Sullivan released after being refused parole for 22 years after his initial 16-year tariff ended as he refused to ‘admit’ his guilt. After 38 years, DNA evidence proved Peter’s innocence which he had so long asserted. However, without accepting responsibility for the crime he didn’t commit he could never be given parole. The system must be humane, proportionate, and capable of recognising genuine rehabilitation in all its forms.  

Community sentences and probation services

Gauke also rightly calls for an expansion of community sentencing. Measures such as longer suspended sentences, restorative justice, and alternative penalties like travel bans are creative tools that we ought to use more frequently. They should be the first line of defence particularly when dealing with non-violent and repeat anti-social and low-level offending.

Yet for these sentences to work, they must be backed by real investment. Probation services have been hollowed out in recent years overstretched officers cannot provide meaningful supervision or support. The proposed £700 million investment is welcome, but must be ringfenced, long-term, and spent on frontline services and not administrative reform.

Mental health treatment for offenders

Where the review does falter is in what it doesn’t say. While it hints at the use of specialist courts for prolific offenders, particularly those with addiction issues, it doesn’t call for wholesale change in how we deal offenders driven by untreated mental health conditions or poverty.

In court, I routinely represent individuals who have slipped through every safety net. Many are homeless. Many have experienced trauma, abuse, and systemic neglect. A significant proportion suffer from mental health issues that have never been diagnosed, let alone treated.

Yet the criminal justice system continues to function as a default mental health provider a role it isn’t designed to do. What we urgently need is mandatory mental health screening at the point of arrest or charge, with access to treatment programmes as an alternative to prosecution for those who need it. 

Tackling the cause of crime

What’s more, until we deal with the social causes of crime, lack of housing, hunger, poor education, and unemployment, we will only ever be managing the symptoms of crime. A person who has no home, no food, and no opportunity will, out of desperation, end up back in front of the courts. The review effectively understands rehabilitation and advocates for it, but we need to tackle broader economic and social conditions that drive people into the criminal justice system in the first place.

It isn’t enough to invest in probation; we have to invest in people. That means coordinated action across housing, healthcare, education, and employment. It means in the majority of cases treating crime as a social issue, not just a criminal one.

What’s next?

There is, of course, a political tightrope to walk especially when it comes to the management of crime. Calls for reduced imprisonment are often depicted as being soft on crime. But we must reframe the conversation: the real measure of a justice system is not how many it incarcerates, but how few it needs to. The review reflects the kind of evidence-led thinking that should guide policy, and we look forward to seeing how this will be implemented.