A tragic accident should not have landed Auriol Grey in prison. Our justice system is stuck in the dark ages

Auriol Grey, who has cerebral palsy and lives in specially adapted accommodation, was walking along a footpath in Huntingdon, Cambridgeshire, and was infuriated to see a bicycle coming towards her. She waved her arm at it, making the 77-year-old rider swerve, lose her balance and fall into the road, where she was hit by a passing car and died. An act of what might be called antisocial behaviour was followed by a terrible accident. Grey is now serving three years in prison for manslaughter.

Britain’s judicial system is obsessed with prison to a degree that is unlike any other country in western Europe. The number of prisoners has roughly doubled since the 1990s. Prison conditions are so bad that a Dutch court refused to extradite a convict to Britain on grounds of its “inhumane” jails.

Rishi Sunak is this week unveiling new community punishments for those who break the law, but he might first inquire into why these have failed in the past. In 1998 the Blair government replaced the informal discipline of “bobbies on the beat” with court-imposed antisocial behaviour orders (asbos). Their effectiveness was much contested. They were breached in almost half of all cases, rendering perpetrators liable to five years’ imprisonment. Meanwhile, the government ignored the most likely cause of a rise in antisocial incidents: police station closures and the collapse of neighbourhood policing.

Opposition to asbos led the Cameron government in 2014 to replace them with a bureaucracy of community and criminal behaviour orders. These measures were virtually identical to those now promised by Sunak in his headline-hungry campaign against fly-tipping, graffiti, noise, vandalism and drug-taking – including a newly banned drug, laughing gas. Like Boris Johnson, he wants offenders conspicuous and cleaning graffiti. Added to a flurry of measures against hate speech and sexual harassment, the burden on police forces has been increased to a degree that enforcement has in some areas become nonexistent.

Always in the background has been the threat of prison. Records show jailings for, among other things, being “offensive” in a cathedral, stealing two penguins from a zoo, disrupting the Boat Race, overloading a light aircraft, plundering a war wreck, and driving the wrong way down an M6 slip road. An expert in European law tells me none of this would have led to prison on the continent. It is now an imprisonable offence to illegally fell a tree, use a phone when driving or photograph a woman breastfeeding without her permission. These actions may be deplorable; but no conceivable good can be served by spending tens of thousands of pounds a year locking up the offenders.

Over half of British prisoners on short sentences now reoffend soon after release; in Norway’s modernised penal regime, the figure is about 20%. One reason is that, for many people, any prison sentence renders them unemployable. It is effectively for life. Jails should be for rehabilitation or public protection. They are no deterrent or they would not be full.

It is impossible to see what public good is served by imprisoning Grey. Deterrents cannot prevent accidents; we can only see what lessons can be drawn when one occurs. As for punishment, modern penal theory is built round fines, parole, tagging, community service and restorative processes. Other regimes have found such ways forward. British justice is still in the dark ages.

• Simon Jenkins is a Guardian columnist

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