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Summary

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. As we saw in Chapter 1.4, 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. But to combine these into some overarching aim such as ‘the maintenance of a peaceful society through fair and just laws and procedures’ would surely be to descend into vacuity, since it gives no hint of the conflicts that arise and the priorities that need to be determined. Thus the cluster of aims for different stages of the system needs to be stated in such a way as to maximize coherence and also to ensure compliance with international obligations such as the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.

Summary

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 (as we saw in Chapter 2.7 above) 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.

In English law the Equality Acts 2006 and 2010 establish a general legal anti-discrimination framework, monitored by the Equality and Human Rights Commission. The protected characteristics are age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Section 149(1) of the 2010 Act requires public authorities to a) eliminate discrimination or harassment on any of these grounds, b) advance equality of opportunity for those with a protected characteristic, and c) foster good relations between those persons and others. While duty a) is negative, duties b) and c) require public authorities to take positive action – an important feature of the law, since the criminal justice system alone cannot hope to bring about changes in social attitudes or opportunities. It can be argued that a sentencing system that places emphasis on proportionality should leave no room for discrimination, since courts should focus on the seriousness of the offence in each case. However, we have seen in Chapter 3 that s. 142 of the Criminal Justice Act 2003 appears to allow courts to pursue other purposes apart from proportionality; in Chapter 5 that some of the recognized aggravating and mitigating factors are not linked to proportionality principles; and in Chapter 6 that previous convictions and predictions of dangerousness can play a prominent part in sentencing. Moreover, although there are sentencing guidelines for many offences, a margin of discretion has been preserved, especially in respect of mitigation and aggravation, and discretion raises the possibility of discriminatory practices.

Summary

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 frauds. 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 to have the case 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 types of criminal offence are divided into four classes, according to their gravity, and some can only be tried by a High Court judge (of whom there are around 105), whereas others can be tried by circuit judges or recorders. Circuit judges (around 650) are full-time judges, although they may divide their time between civil and criminal work. Recorders and assistant recorders (around 1,200) are part-time judges, whose main occupations are barristers, solicitors or (in a few instances) academics; most full-time judges start their judicial careers in this way. Appeals against sentence from the Crown Court go to the Court of Appeal and, if there is no point of law involved, the appeal requires that Court's leave if it is to be heard. Applications for leave are dealt with by individual High Court judges.

Summary

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 are convicted 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 multiple offences. Not all these multiple offenders 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’ 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.

The focus of this chapter, then, will be on multiple offenders, some of whom are being sentenced for a number of offences arising from a single incident, but most of whom are being sentenced for offences committed at different times during the period before their court appearance. It seems that around half of all Crown Court cases and about a quarter of magistrates’ court cases involve two or more convictions, so there is no doubting multiple offenders’ centrality to sentencing. They give rise to difficulties both theoretical and practical, particularly in relation to proportionality. It is one thing to compare a residential burglary with a rape; it is quite another thing to draw comparisons of gravity between two, four or six residential burglaries and a single rape. Before tackling these problems, however, the various procedural methods of dealing with multiple offenders must be briefly explored.

Summary

This chapter presents a critical appraisal of the law and practice on custodial sentences. Imprisonment involves deprivation of liberty and is the most onerous and intrusive sentence available in this and other European countries, engaging several rights declared in the European Convention. Deprivation of liberty and incarceration in a punitive institution therefore 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. While the sentence handed down in court establishes the framework, there are exercises of discretion in the prisons and by the Parole Board that have powerful effects in determining the time actually served.

The chapter begins with an outline of the state of English prisons. It then considers principles and policies for the use of custodial sentences, and moves on to an analysis of the statutory tests for imposing custody, and also the prevailing approach to long custodial sentences. The chapter concludes with a brief discussion of various groups of prisoners who raise particular issues of principle.

Summary

Some preliminary problems of principle

The factors recognized as aggravating or mitigating have often been 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 for four reasons:

Summary

In Chapter 9 the close connection between custodial and non-custodial sentencing was often evident, particularly when discussing the statutory test for custody. The present chapter aims to examine the principal non-custodial measures available to English courts when sentencing offenders aged 18 or over. The discussion begins with so-called ‘third tier’ sentences (absolute discharges, conditional discharges and bind-overs, compensation orders and fines), and then moves on to the community sentence, as reshaped by the Criminal Justice Act 2003. 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. Simply widening the range of available non-custodial sentences did little to deflect courts from their use of custodial sentences. Changes in sentencing practice did take place, but these did not impinge significantly on the use of custody.

It was lack of progress in that direction, combined with concern among sentencers about laxity in the enforcement of non-custodial sentences, that led to changes in the 1991 Act. The notion of ‘alternatives to custody’ had not been found convincing or even comprehensible by many sentencers: there was, they would say, nothing equivalent to prison, and certainly nothing in the available options. Major changes of direction were proposed in the 1990 White Paper: restraint in the use of custody for non-serious offences, a toughening of community sentences, more rigorous enforcement of community measures, and greater use of financial penalties. Perhaps the most important change was the abandonment of the ‘alternatives to custody’ rhetoric, and its replacement with the idea of punishment in the community, focusing on restrictions on liberty.

Summary

This chapter sets out to discuss the ever-expanding range of ancillary orders available to courts at the sentencing stage, and to explore the also expanding range of civil preventive orders, breach of which may constitute a serious criminal offence. The chapter begins with a summary of the current sentencing framework, before going on to examine the range of privatory orders, reparative orders, and preventive orders that courts may make. The rationale for the various orders is then reassessed, before a concluding section on sentencing for breach of an order.

The statutory sentencing framework

The framework of sentencing established by the Criminal Justice Act 2003 (as amended) 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 in respect of adult offenders, as set down in the legislation. The following sequence begins with the least onerous sentence and ends with the most onerous.

Summary

Criminal Justice Act 2003:

s. 143 Determining the seriousness of an offence

(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

(2) In considering the seriousness of an offence (‘the current offence’) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to:

(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and

(b) the time that has elapsed since the conviction …

s. 144 Reduction in sentences for guilty pleas

(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account –

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which this indication was given.

(2) In the case of an offence the sentence for which falls to be imposed under subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that subsection prevents the court, after taking into account any matter referred to in subsection (1) of this section, from imposing any sentence which is not less than 80 per cent of that specified in that subsection …

Summary

This chapter examines the controversial question of sentencing repeat offenders, including the sub-group of ‘dangerous offenders’. After a brief historical introduction, part 6.2 explores four approaches to sentencing persistent offenders, and part 6.3 considers the relevant provisions of the Criminal Justice Act 2003. Parts 6.4 and 6.5 examine two specific problems, those of ‘professional’ criminals and of petty persistent offenders. In part 6.6 a different approach to repeated rule-breaking is examined – the use of civil preventive orders. Part 6.7 of the chapter turns to the question of selective incapacitation as a strategy for preventing crime, referring to the minimum ‘three strikes’ sentences in English law. In part 6.8 recent legislative attempts to provide suitable sentences for ‘dangerous’ offenders are assessed, and some concluding thoughts are found in part 6.9. 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 as 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. But penal reformers and governments have invariably felt that no major set of reforms would be complete without making further special provision for persistent offenders. The Gladstone Committee in 1895 argued in favour of a special measure against persistent thieves and robbers, who would otherwise serve a succession of fairly short sentences and therefore return frequently to prey on the community. The Committee's proposals led, after much debate, to the Prevention of Crime Act 1908. This empowered a court to impose, upon an offender with three previous felony convictions since the age of 16, a sentence of preventive detention of between 5 and 10 years, in addition to the normal sentence for the crime (a so-called ‘double track’ system). The practical focus of the Act was soon revised when Churchill became Home Secretary in 1910.

Summary

This chapter deals with three sets of sentencing powers for particular groups of offender. It begins with the sentencing of young offenders under the age of 18, deals briefly with young adult offenders aged from 18 to 21, and then concludes with the various powers for dealing with mentally disordered offenders. In respect of each group, we will consider the justifications for separate sentencing powers, and the extent to which the rationale for special powers carries through into sentencing practice.

Young offenders

For over a century there have been different sentencing procedures for younger offenders. Those aged under 18 (before the Criminal Justice Act 1991, under 17) have been dealt with in different courts, formerly called juvenile courts and then renamed ‘youth courts’. There is a considerable literature about the development of sentencing policy in respect of young offenders, whereas the discussion here is necessarily briefer.

A short history of juvenile justice

Ever since 1933, the law has laid down that, in dealing with a juvenile offender, a court ‘shall have regard to the welfare of the child or young person’. This welfare ideology reached its apotheosis in the Children and Young Persons Act 1969, which sought to ‘decriminalize’ the juvenile court by regarding the commission of an offence as merely one way in which the court's powers to intervene for the welfare of the child could be activated. The legislation contemplated that children under 14 would be dealt with outside the criminal courts, and those aged 14–16 would only rarely be taken to court. The 1969 Act failed, however, to resolve the longstanding tension between the welfare ideology and the tougher, punitive approach. In 1970 there was a change of government, and some sections of the 1969 Act (notably the increase in the age of criminal responsibility from 10 to 14) were never implemented. In practice, the 1970s was a decade in which two apparently contradictory developments took place: the cautioning of young offenders increased, but so did the use of custodial sentences.

Summary

The purpose of this chapter is to draw together various themes emerging from the topics examined in the 13 substantive chapters, and to offer some concluding reflections. The chapter begins by returning to a fundamental issue – the role that sentencing should be expected to fulfil in criminal justice. The second topic is the relationship between rule-of-law principles and the sentencing process, examining the interplay between guidelines and judicial discretion in England and Wales and in some other jurisdictions. From this we move to the third topic of guidelines and penal moderation. Fourthly, we return to the struggle between the proportionality principle and the increasing reliance on the rhetoric of protection and risk and the proliferation of preventive orders in sentencing. In the fifth part, entitled ‘Stepping back from the punitive state’, the chapter concludes with a brief reassessment of the prospects for significant changes in the direction of sentencing policy in England and Wales.

The responsibility of sentencing

There is no doubt that the task of sentencing imposes a great burden on magistrates and judges. Many of them say that it is the hardest and most disturbing of judicial tasks. Given the momentous consequences it may have for offenders, in terms of deprivations or restrictions on liberty, that is as it should be. In the present context, however, a more significant question is what sentencers and sentencing should be held responsible for. Given the place of sentencers in the criminal process, would it be fair to assume that they are responsible for crime rates in society, or for the subsequent conduct of offenders?

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Appendix B - Statistical tables

Table of legislative measures

3 - Sentencing aims, principles and policies

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Bibliography

Index

7 - Equality before the law

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1 - An introduction to English sentencing

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Contents

Table of cases

8 - Multiple offenders

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9 - Custodial sentencing

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Frontmatter

5 - Aggravation and mitigation

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10 - Non-custodial sentencing

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11 - Ancillary orders and civil preventive orders

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Appendix A - Selected statutory provisions

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6 - Persistence, prevention and prediction

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12 - Special sentencing powers

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14 - Sentencing, guidelines and the punitive state

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Appendix C - Sentencing guidelines

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