This chapter, like Chapter 6, deals with some of the problems posed by the sentencing of persistent offenders. Its focus, however, is on offenders who come before the courts in a different context. In Chapter 6 the main concern was with the sentencing of recidivists – those who offend repeatedly, despite the fact that they have experienced criminal sanctions. The main concern here is with offenders who commit a number of offences before they are detected and convicted, so that the court has to sentence them on one occasion for several offences. Not all the offenders whom the courts have to sentence for several crimes could be described as ‘persistent offenders’, for in some cases the offender has been involved in a single incident which gives rise to a number of charges and convictions. But many ‘multiple offenders’, whom the courts have to sentence for more than one offence, are people who have been committing offences over a period of weeks, months or even years before they appear in court, and they then face a number of charges. The criminal record of such multiple offenders may vary: some of them will be recidivists too, having experienced a number of criminal sanctions in the past, whilst others will fall into that seemingly incongruous category of ‘persistent first offenders’ – those who, when they are convicted for the first time, are convicted of several offences which show that they are accustomed to lawbreaking, if not to the criminal process.

Some preliminary problems of principle

The concepts of aggravation and mitigation have tended to attract little close examination or theoretical discussion. Perhaps this is because the factors recognized as aggravating or mitigating are thought to be uncomplicated or uncontroversial, or (in the terminology of the English judiciary) ‘well known’ and ‘well established’. However, it will be argued in this chapter that many of them raise contentious issues. These issues assume particular importance now for three particular reasons:

• several aggravating factors and one mitigating factor are statutory requirements under the Criminal Justice Act 2003, as we shall see;

• s. 166 of the 2003 Act reaffirms that the various statutory thresholds for imposing custodial sentences and community sentences should not be read as ‘prevent[ing] a court from mitigating an offender's sentence by taking into account such matters as, in the opinion of the court, are relevant in mitigation of sentence’; and

• s. 174(2) of the 2003 Act requires the court in any case to ‘mention any aggravating or mitigating factors which the court has regarded as being of particular importance’.

For these three reasons, the analysis of the justifications for particular aggravating and mitigating factors becomes a more pressing task than may hitherto have been supposed. Moreover, the sentencing research by Hough, Jacobson and Millie shows that it was chiefly the influence of personal mitigating factors that often made the difference between a community sentence and a custodial sentence in cases ‘on the cusp’.

The purpose of this chapter is to draw together various themes emerging from the topics examined in the 12 substantive chapters, and to offer some concluding reflections. The chapter begins by returning to a fundamental issue, that of the role sentencing should be expected to fulfil in criminal justice. It then looks at the more positive aspects of the new sentencing framework introduced by the Criminal Justice Act 2003, and at their prospects in practice. This links to the third issue – the new sentencing guideline mechanism and its ability to ensure that the new sentencing framework is translated faithfully into practice. The fourth part of the chapter looks at less constructive aspects of the new sentencing framework, notably its reliance on the rhetoric of protection, its use of the concept of risk and the proliferation of preventive orders in sentencing. The fifth part reassesses the place of proportionality in the new system and the impact of the framework on issues of social justice. The chapter concludes with some reflections on political courage and the need for leadership on criminal justice policy in general and sentencing policy in particular.

The responsibility of sentencing

There is no doubt that the task of sentencing imposes a great burden on magistrates and judges, and that many of them say that it is the hardest and most disturbing of judicial tasks.

In Chapter 9 the close connection between custodial and non-custodial sentencing was often evident, particularly when discussing the custody threshold. The present chapter aims to examine the principal non-custodial measures available to English courts, in the light of the Criminal Justice Act 2003. In brief, four methods of disposal are unchanged (absolute discharges, conditional discharges and bind-overs, compensation orders and fines), but the 2003 Act has replaced the diverse forms of community order with a single, generic community sentence. It has also reshaped deferment of sentence. First, it is necessary to consider the route by which the English system arrived at its present position.

A brief history

Successive governments between the 1960s and the early 1990s stated a policy of reducing the use of custodial sentences, and regarded the provision of new forms of non-custodial sentence as a key element in this strategy. Community service orders (and compensation orders) formed part of the 1972 Criminal Justice Act. New forms of probation order were introduced by a Schedule to the 1982 Act, the Act which also legislated for curfew orders on young offenders. The result was that courts in England and Wales had available a wider range of non-custodial measures than the courts of most European countries, most states in the United States and probably most countries in the world. What might be described as the policy of proliferation was not a conspicuous success.

The main aim of this chapter is to draw together most of the significant procedural steps in sentencing, but the second part of the chapter focuses on a major development in sentencing that will be further highlighted in Chapter 13 below – the expanding availability and use of preventive and other ancillary orders at the sentencing stage. As a prelude to that discussion the first part of the chapter summarizes the framework of sentencing. Afterwards, the third part sets out various requirements to give reasons. Following that, brief consideration is given to several issues arising in procedural context. Thus, before a court passes sentence in any case other than a minor summary one, there will usually be either a trial or, if the plea was guilty, a prosecution statement of facts. In some cases these provide the court with an insufficient basis on which to pass sentence: what is to be done? Again, what role do the advocates for prosecution and defence play in relation to sentencing, and what role should they play? When should pre-sentence reports be relied upon by sentencers? What place do victims have in the sentencing process, and what role should they have?

The sentencing framework of the 2003 Act

The framework of sentencing established by the Criminal Justice Act 2003 has been much discussed in Chapters 9 and 10 above, and the present summary eschews detailed statutory references in order to convey the essence of the decision-making scheme.

Courts and crimes

Although some common law crimes remain, most of the offences in English criminal law were created by statute and have a statutory maximum penalty. For the purposes of trial, offences were divided into three categories by the Criminal Law Act 1977 – offences triable only on indictment, offences triable only summarily, and offences triable either way. The most serious offences (e.g. murder, rape) are triable only on indictment, at the Crown Court. A large mass of less serious offences is triable only summarily, in magistrates' courts. The middle category of offences triable either way comprises most burglaries, thefts and deceptions. The first question in these cases concerns the defendant's intended plea: if the defendant indicates a plea of guilty, the magistrates must assume jurisdiction and proceed to sentence, unless they decide that their sentencing powers are insufficient. If the intended plea is not guilty, the defendant will be tried at a magistrates' court unless either the magistrates direct or the defendant elects that the case be tried at the Crown Court.

The Crown Court sits with a judge and jury. There are three levels of Crown Court centre: first-tier centres, where both civil and criminal cases are tried and where High Court judges and circuit judges preside; second-tier centres, where High Court judges or circuit judges preside but only deal with criminal cases; and third-tier centres, where circuit judges or recorders deal with criminal cases, being mostly offences triable either way.

The principle and its challengers

The constitutions of many countries proclaim a principle of equality before the law or non-discrimination, or at least a general principle of equality. There is no British Constitution as such, but the Human Rights Act 1998 brings into UK law most articles of the European Convention on Human Rights. Article 14 declares that the enjoyment of all the rights declared in the Convention shall be secured ‘without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. This is not a general principle of non-discrimination, since it applies only to discrimination in respect of rights declared in the Convention, but it is nevertheless important. Protocol 12 to the Convention includes substantive and broader protection against discrimination, but it does not bind a member state unless that state ratifies it.

Apart from Article 14, English law contains no general principle of non-discrimination. This deficiency ought to be rectified: non-discrimination is a key aspect of the principle of equality before the law. Discrimination is wrong because it treats persons with certain attributes as worthy of less respect than others. Equality before the law declares that every person is entitled to equal respect from the law and its processes.

The aim of this chapter is to examine the law and practice relating to custodial sentences. Imprisonment involves deprivation of liberty and is the most onerous and intrusive sentence available in this and other European countries. Deprivation of liberty and incarceration in a punitive institution require special justification. To begin that process, it is necessary to understand the practical meaning of custodial sentences. This depends on the various provisions for calculating the proportion of the nominal sentence that the offender will spend in custody, on the conditions in which prisoners are held, and on the terms on which they are later released. The chapter begins with an outline of the state of English prisons. It then considers principles and policies for the use of custodial sentences, assessing the extent to which the principle of restraint, the policy of bifurcation or a blurred approach best characterizes English sentencing. There is then an analysis of the statutory threshold for imposing custody, and also the prevailing approach to long custodial sentences, noting significant changes introduced by the 2003 Act. The chapter concludes with a brief discussion of various groups of prisoners who raise particular issues of principle.

The use of incarceration and deprivation of liberty as a punishment raises fundamental questions of social and penal policy, as well as engaging several individual rights declared by the European Convention on Human Rights.

In the five years since the third edition, the brisk pace of change in sentencing set in the 1990s has continued with vigour. Most significant is the Criminal Justice Act 2003. Over half of its 339 sections and 30 of its 38 schedules relate to sentencing. Not all of those provisions are yet in force – at the time of writing, it appears that the new sentence of custody plus and the raising of the magistrates' courts' sentencing limit from 6 to 12 months will not be brought in until autumn 2006. Several chapters have needed extensive rewriting in order to reflect the provisions of the 2003 Act. Attention has also been paid to other significant changes in sentencing – the continued rise in the prison population to over 75,000; the continued increase in reliance on the National Probation Service for risk management and rehabilitation in the community; the extension of social control through the anti-social behaviour order and the many other preventive orders and the concomitant blurring of boundaries, rights and responsibilities that this entails; the development of the guideline movement in sentencing, and the unexpected return of the Court of Appeal to the practice of laying down guidelines or ‘guidance’; and many other changes.

I ceased to gather material for this edition at the end of March 2005, but room has been found for a few subsequent developments.

This chapter explores the practical application of the proportionality principle in English sentencing. After examining the relevant provisions of the Criminal Justice Act 2003, we begin an exploration of the concept of proportionality in practice and in theory. Part 2 considers people's opinions about the relative seriousness of different offences, and part 3 discusses a possible theoretical framework for determining questions of offence-seriousness. Part 4 relates this framework to a selection of English offences, taking account of Court of Appeal decisions and of past sentencing practice. In part 5 we consider the variations in culpability, and part 6 draws in some perspectives on proportionality from European Community law and from European human rights law. Part 7 presents some provisional conclusions on the elements of proportionality.

The proportionality principle

In 1990 the Home Office left no doubt that the intention behind the reforms which became the Criminal Justice Act 1991 was to introduce ‘a new legislative framework for sentencing, based on the seriousness of the offence or just deserts’. Arguing that both rehabilitation and deterrence have drawbacks as purposes of sentencing, the White Paper asserted that

In the course of this chapter there will be detailed discussion of a group of sentencing issues which lead to considerable practical and theoretical difficulties. After a brief historical introduction, part 2 explores three possible approaches to sentencing persistent offenders, and part 3 considers the relevant provisions of the Criminal Justice Act 2003. Parts 4 and 5 examine two specific problems, those of ‘professional’ criminals and of petty persistent offenders. In Part 6 a new approach to prevention is examined – the use of anti-social behaviour orders. part 7 of the chapter turns to the question of selective incapacitation as a strategy for preventing crime, referring to the minimum sentences in English law. In part 8 the ‘dangerousness’ provisions of the 2003 Act are examined, and some concluding thoughts are found in part 9. Throughout these topics there are linking themes concerned with the promotion of security and the assessment of risk of future criminal behaviour. The invocation of such rationales amounts to a departure from the proportionality principle, and close attention will be paid to the justifications for this.

Historical introduction

The history of English measures aimed specifically at persistent offenders seems to be widely acknowledged to be a history of failure. The judges have had sufficient discretion, for the last hundred years at least, to allow them to pass fairly long sentences on persistent serious criminals without invoking any special powers.

Major changes in the sentencing field in recent years have raised several questions of a constitutional nature. To what extent does sentencing policy belong to the judiciary? Are there any limits beyond which the legislature may not go when legislating on sentencing? Where do new bodies such as the Sentencing Advisory Panel and the Sentencing Guidelines Council fit into the constitutional framework? What are the limits beyond which the executive may not go in determining how a sentence may be carried out? These are all live issues, but firm guidance is not always available. Sometimes the principle of judicial independence has been brought into the debate, often without clarifying matters. These and other matters will be discussed in this chapter, taking account of their implications not only for the higher judiciary but also for the magistracy and for the Judicial Studies Board.

The separation of powers in sentencing

The doctrine of the separation of powers still has some relevance in British constitutional theory, but the place of sentencing has never been entirely resolved. In principle, the legislature has control over sentencing powers and policies – subject since the Human Rights Act 1998 to the limitations of the European Convention on Human Rights (the Convention). The judiciary deals with the application of sentencing law and principles to individual offenders. And the executive is responsible for carrying out the sentences imposed. But each of these propositions requires further discussion.

The aims of the criminal justice system

The ‘criminal justice system’ is not a structure which has been planned as a system. Nor is it so organized that the several interlocking parts operate harmoniously. In England and Wales, as in many other jurisdictions, the administration of criminal justice has grown in a piecemeal way over the years, with separate phases of development leaving their mark. To refer to a ‘system’ is therefore merely a convenience and an aspiration. It should not be assumed that the various arrangements were planned or actually operate as a system, although it remains necessary to recognize the interdependence of the different parts and to incorporate this into any planning.

It is important to distinguish the aims of the criminal justice system from the aims of sentencing, which merely relate to one element. The system encompasses a whole series of stages and decisions, from the initial investigation of crime, through the various pre-trial processes, the provisions of the criminal law, the trial, the forms of punishment, and then post-sentence decisions concerned with, for example, supervision, release from custody and recall procedures. It would hardly be possible to formulate a single meaningful ‘aim of the criminal justice system’ which applied to every stage. It is true that one might gather together a cluster of aims: for example, the prevention of crime, the fair treatment of suspects and defendants, due respect for the victims of crime, the fair labelling of offences according to their relative gravity and so on.

Introduction

In earlier chapters we have charted the progress of what can only be described as a sea change in civil justice arrangements. Visible right across the common law world, there have been corresponding – if less fundamental – reverberations in civilian jurisdictions too. Over two short decades, what appeared in the 1980s as marginal novelties have become established features of the disputing scene. Alternative dispute resolution, with its objective in ‘settlement’ and its principal institutional realisation in ‘mediation’, is now a virtually unremarkable feature of disputing cultures almost anywhere we look.

Looking at these transformations in the most general terms, two preliminary points might be made about them. First, they appear to realise some of the almost apocalyptic forecasts of the early 1980s concerning ‘the changing nature of state power in late capitalism’ (Santos, 1987), the shifting balance between understandings of ‘lifeworld’ and ‘system’ (Habermas, 1981) and the increasing dominance of ‘reflexive law’ (Teubner, 1983). While civil justice has historically presented itself as being fundamentally about the availability of third-party determination, an important ideological shift away from that position has taken place. Here in England, for example, Lord Woolf in his seminal reports on Access to Justice (1995; 1996) characterised the primary objective of civil justice as the sponsorship of settlement, with judgment reduced to the solution of last resort.