The six main theories of sentencing Retribution, Deterrence, Denunciation, Incapacitation, Reform and Rehabilitation, Reparation --- s.142 CJA 2003 provides reference to the motivation behind the chosen sentencing practice. Regrad must be had to the punishment of offenders, the reduction of crime (deterrence), the reform and rehabilitation of offenders, protection of the public and repaation to those affected by the crime.
On conviction at the Crown court, the trial judge determines an appropriate sentence whereas on conviction at the Mags court, Mags can determine the sentence themselves, or by virture of s.3 Powers of Criminal Courts (Sentencing) Act 2000, D can be committed to Crown Court for sentence.
Courts will consider mitigating/aggravating circumstances, pre-sentence reports, previous convictions, medical reports etc. The Sentencing Council provides guidelines to ensure consistency accross England and Wales and help judges and mags to find an appropriate sentence. Whatever is imposed should reflect the crime and seriousness of it.
Under s.144 CJA 2003, where D pleads guilty, they will enjoy a reduction in sentence, although legislation for some offences has fixed the sentence that must be imposed.
Mandatory sentences and Minimum sentences
The Murder (Abolition of the Death Penalty) 1965 sets down a mandatory life sentence for murder, with the tariff to be decided by a judge. If they are considered for release by the Parole Board (set up under the CJA 1967) then they will be on licence for the rest of their lives and be closely supervised.
The Crime (Sentences) Act 1997 sets down minimum sentences for some persistent offenders:
- s.3 provides for a minimum 7 years for 3rd class A drugg trafficking offence.
- s.4 -minimum of 3 years for 3rd domestic burglary offence.
Another example: s.287 CJA 2003 which sets a minimum sentence of 5 years for certain firearm offences, introduced to tackle the growing problem of guns. This has been criticised for limiting judge's discretion and being contrary to proportionality.
Types of sentences- Custodial
In s.76 Powers of Criminal Courts (Sentencing) Act 2000, custodial sentences are defined differently depending on the age of the defendant:
- Aged 18+: - sentence of imprisonment or a suspended sentence
- Under 18:- detention in a young offender's institution
S.152 CJA 2003 states that imposing a custodial sentence must be justified and proportionate as this is the most severe sentence available for offences that are "so serious that neither a fine alone nor a community sentence can be justified for the offence." Most Ds given custodial sentences do not serve the full sentence in custody but are released early on licence. Sentences can be in/determinate:
• Determinate sentence: the court fixes the amount of time an offender has to stay in prison. This is the most common form of custodial sentence, though the length of sentences is usually a maximum as the offender will not always serve this amount of time. For sentences of more than a year, the offender is likely to only serve half of their sentence and other half is served in the community on supervised licence with conditions.
• Indeterminate sentence: the court will set a minimum period of time that the offender has to serve in prison before they are eligible for early release by the Parole Board.
John Halliday 2001 report "Making Punishment Work: A Review of the Sentencing Framework for England and Wales" promoted aims such as ensuring that 'punishments fit the criminal as well as the crime' and that the underlying principle was to put 'the sense back into sentencing'. In his report, Halliday argued that prison sentences of less than 12 months had little meaningful impact on criminal behaviour, because only half of the sentence was actually served in prison.
- "Prison sentences of less than 12 months literally mean half of what they say."
- "Shorter prison sentences are ill equipped to do anything to tackle the factors underlying criminal behaviour, by comparison to any other sentence."
- "Of released prisoners, reconviction rates are higher for those who have served short sentences than for those released after longer terms." (Around 60 %)
This means the prison service has little opportunity to tackle criminal behaviour; prison sentences could have long term adverse effects on family cohesion and employment prospects, both of which are key to the rehabilitation of offenders. The proposed solution was CUSTODY PLUS (which was adopted in s.181 CJA 2003) This involves a prson term followed by release on licence where an offender would carry out a specified community order; engaging them in programmes aimed at reducing reoffending.
The rationale was to provide a punishment that addressed the negatives attached to short term prison sentences as it is commonly believed short sentences "damage offenders with no offsetting benefit."
- Sentence less than 12 months: after spending a maximum 3 months in prison, an offender is released and subjected to 6 months' post release supervision, with appropriate attached conditions available under community sentences. If offender fails to comply, s/he will be returned to custody for 28 days.
- Sentences of more than 12 months: offender spends half of time in custody and automatically released and remainder of sentence is served under supervision in community.
The report made it clear that this would only be used for those offenders it was appropriate for. Beginning the rehabilitative programme in prison is essential as a "foundation for subsequent, non custodial work on the skill deficits and antisocial attitudes which... explain an offender's criminal behaviour. (Robert & Smith "Custody Plus, Custody Minus 2003"). Thus the offender's transition from prison to community and the programme they have started is orchestrated to promote rehabilitation. However, some still argue that this is plagued by the same 'short time scale' problem.
Little proper evaluation of the offender can be undertaken in prison, usually because the programme to 'transform' them is often unsuccessful in short timescales. The entire 'prison experience' is too disruptive for most offenders serving a short sentence benefit in a positive way. Longer term programmes are, therefore, the most effective way of challenging the attitudes and behaviour. However, imprisoning offenders and then releasing them without some form of help to counteract the damaging effect of custody puts both an offender and the community they live in at risk. WHO IS CORRECT?!
Home Detention Curfew
The CRIME AND DISORDER ACT 1998 allows for the early release from prison on the condition that a home detention curfew condition is included. The greater the prison term, then the greater the curfew term will be. There is no automatic right to a curfew; the offender must be assessed for suitability.
If Home Detention Curfew order is not made, a prisoner must serve half the sentence before release on license. The reason for its introduction is to encourage released prisoners to structure their lives more effectively, prevent re-offending and also reduce the prison population!
Indeed, DODGSON et al 2001 found that in the first 16 months' use of home detention curfews, only 5% were recalled to prison, and thus appears to have eased the transition from prison to the into the commununity. Offenders too were positive about the scheme, with only 2% saying they would have prefer to have spent the time in prison, over a third of prisoners said that the prospect of being granted such an order influenced their behaviour in prison.
Suspended Prison Sentences
This means that the sentence does not take effect immediately. The court fixes a time for suspension (14 days - 1 year in Crown/6 months in magistrates), and if during this time offender does not re-offend, the prison sentence will not be served.
The court can attach any of the 12 'community' requirements to this sentence. However, re-offend and the prison sentence is 'activated' They will serve the previous sentence and any sentence for the new offence. These are used where custodial sentence would have been appropriate, but there were exceptional circumstances. In 2008, only 3% of offenders received a suspended sentence.
R v Cox  D injected V, a terminally ill patient, with a lethal dose so that she may die in her sleep. This was done with the knowledge and approval of her family following Vs pleas for Dr Cox to end her suffering. D was convicted of attempted murder (not murder as V had already been cremated before any suspicion arose and the cause of her death could not therefore be conclusively proved). Judge passed a 12 month suspended prison sentence.
CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 abolished suspended sentences for summary offences.
Advantages of Custodial sentencing
The previous Conservative government proclaimed "prison works" in the sense that offenders cannot commit further offences (incapacitation) while in prison and so the public is protected (deterrence).
The Labour government claimed that prison could be made to work both by protecting the public and by making use of the opportunity for rehabilitation.
Disadvantages of custodial sentencing
Between 50% - 60% of offenders were reconvicted within 2 years of release (according to Howard League). With prison costing £2.2bn per year in total, it is an 'expensive failure' which can have no impact on crime levels or the fear of crime.
Vivien Stern- "Bricks of Shame" 1987 was a damning account of British prisons. She considered in depth the problems which faced British prisons and decided they were 'an affront to civilised society':
- She argued that too many people were unnecessarily in prison which led to extreme examples of overcrowding which often placed a strain on the conditions.Stern was appalled that prisoners continued to 'slop out'.
- Lack of structured regimes in prisons which do not expect or allow for prisoners to lead 'a good and useful life'. As prisoners are often given very little to do, they will attempt to amuse themselves, albeit sometimes with illegal activities.
- Overall, she highlighted that prisoners spend time with other criminals, acquiring new ideas; budget cuts mean there is little effective education and training in prisons; the stigma of having been in prison means opportunities for employment are few; their families break down, and thus an ex-prisoner may therefore become homeless.
- Following on from this, it is felt that prison can punish the innocent as well as the guilty as the prisoner's family suffer stigma and financial difficulties
Disadvantages of custodial sentencing
- Smith et al "Poverty and Disadvantage Among Prisoners' Families" 2007 noted that about 4% of children experience the imprisonment of their father during their school years, frequently causing them to suffer emotional and economic hardship, with a negative effect on their personal development.
- The worrying conditions cited by Stern have improved, particularly following publication of the prison riot inquest "Prison Disturbances April 1990" by Lord Woolf. By 1990 English prisons were rocked by a series of serious riots, most notably Strangeways in Manchester in April 1990. Strangeways was rebuilt at a cost of over £50 million, corn sieted in 1994:
Woolf's report results indicated that the causes of the riots were overcrowded and unsanitary prison conditions, negative inmate-staff relations, and inadequate attention to prisoners' rights, inadequate personnel training and a lack of leadership from Prison Service. In his report, Woolf identified three key ideas that ought to be in place in every prison; SECURITY, CONTROL and JUSTICE.
Prison is also extremely expensive! It costs around £40,000 a year per prisoner. Three weeks in prison costs as much as a lengthy community sentence. The LC in 2008 noted that in locking up an offender for 30 years, the state is investing a million pounds in punishing them.
Disadvantages of custodial sentencing
- Poor conditions within prisons continue to be a concern, leading to an increase in suicide. Between 1999 and 2003, 434 people committed suicide in prison, and there were 16,000 incidents on self harm in 2003.
- The Prison Ombudsman report found a failure in the Prison Service's internal complaints system to investigate complaints adequately. There were 190 deaths in 2012: 115 were of natural causes, 60 deaths have been classified as self-inflicted and 15 remain unclassified as yet.
- Lord Woolf's prison riot inquiry found that one of the root causes of riots was that prisoners believed they had no other effective method of airing grievances.
- A growing prison population cannot be explained by an increase in criminal activity as these figures have dropped, instead, offenders in English courts get longer sentences for assault, robbery or theft than anywhere else in Europe (Council of Europe study).
- Overcrowding led to temporarily placing offenders in police cells, which was unsatisfactory as there were no provisions for education and training.
Disadvantages of custodial sentencing
Lord Carter was asked to conduct a review into prisons, "Securing the Future 2007, and its central recommendation was for a significant acceleration and expansion of the current building programme to meet 'the unprecedented demand for prison places', i.e. TITAN PRISONS.
Such proposals were readily accepted and the government announced plans to build 10,500 prison places by 2014, costing nearly £3bn. Three 'titan' prisons were recommended as part of the key strategy, however, opponents comment on the possibility for large scale disturbances, the difficulty in meeting the needs of specific groups of prisoners, the management complexities of a large staff complement.
Anne Owers, the Chief Inspector of Prisons, described the report as a 'missed opportunity'. She said: "My fear is that what we will get is more prisoners and worse prisons, a focus on efficiency rather than effectiveness, and also a moving away of resources from those things which are currently leading to the rise in prisoner numbers""
Upon completion in 2014, UK prisons would be able to hold 96,000 prisoners. However, there has been a U-turn on such proposals.
Theories relevant to custody
- Incapacitation-unable to commit offence
- Retribution-punishment-loss of liberty
- Reform and Rehab-idea that they won't want to return
- Deterrence- idea that it is not a nice place to go
Prior to CJA 2003, courts could choose from individual community sentences, and combine them where necessary. The CJA 2003 created ONE COMMUNITY ORDER under which the court can combine any requirements they think necessary. This is available to over 16s who have committed an imprisonable offence.
Examples of s.177(1) CJA 2003 requirements: Unpaid work requirement, Programme requirement, Prohibited activity requirement, Curfew requirement, Supervision requirement by the Probation Service.
In 2011, 173,434 offenders were sentenced to a community sentence, representing 13% of all offenders sentenced. Recent governments have been anxious to emphasise that community sentences impose substantial restrictions on offenders' freedom and should not be seen as 'soft options'. However, Home Office stats indicate that 56% of offenders given community sentences reoffend within 2 years and 35% within 1 year.
UNPAID WORK: Over 12 months, offenders are required to work between 40-300 hours on a suitable project that benefits the community. This helps the community and gives offenders a sense of achievement, helping them to keep out of trouble in the future. There have been heated discussions over whether uniforms should be worn. Does it demonstrate their contribution to the community and give people a chance to 'see' the offender is making reparation, or is it unnecessary humiliation that may be counterproductive?
PROGRAMME REQUIREMENT: This could include courses such as anger management, sex offending and drug abuse.
PROHIBITED ACTIVITY: This means the offender must refrain from contacting individuals, or participating in events, e.g. football matches. The prohibition could cover a particular day during the week, or during a specified period.
CURFEW: (often teamed with electronic tagging)The offender will be ordered to remain in a specified place for periods of 2-12 hours in one day for up to 6 months. Courts should avoid imposing conditions which interferes with offender's work/education. The court must obtain and consider information about the place proposed to be specified in the order (including information as to the attitude of persons likely to be affected.)
NAPO (a Probabation Union) argues there are major flaws associated with tagging: "often the tagging equipment does not work...individuals are recalled to custody unnecessarily and that the tagging regime is mechanistic, rigid and bureaucratic."
Advantages of tagging:
- Costs £1250 for a 90 tagging period.
- They keep offenders out of trouble, and thus protect the public, without the disruptive effect of prison.
- At present, tags set off an alarm when breached, but cannot identify where offender has then gone. Government is considering more technologically advanced 'tracking' tags.
- Money would be better spent on constructive options such as supervision requirements which try to change offender's behaviour and long term attitudes.
- Some opponents argue tags are degrading to wear, but others say that prison is far more degrading.
- Some wear tags with 'pride'!
Community Sentences- Supervision requirement
Offender will be under the supervision of a probation officer for fixed period (6 months-3 years) and must attend appointments. The purpose for which this may be imposed is that of promoting the offender's rehabilitation (s.213 (2) CJA 2003).
Home Office research Offenders on Probation 1997 asked respondents why they thought they had been given a probation order and found that 27% felt it was because the court wanted the offender to benefit from the services available. 15% were cynical with their response that it was because they had a 'good lawyer' or a positive pre sentence report. No-one mentioned that they had been given their current sentence in order to stop them reoffending.
However, by far the best point to emerge was that 87% of those under supervision found it useful-, 54% felt it offered them someone independent to talk to, and 19% felt it helped them to keep out of trouble, while 15% were more pragmatic and saw probation as good because it only involved a minor restriction on liberty.
Although, 24% of offenders negatively noted the time taken to atten supervision sessions, followed by 7% noting the inconvenience of travelling to attend. Only 4% said it was a complete waste of time. Due to staff shortages, some offenders subject to supervision are morely being required to turn up and have their names ticked off.
Which theories are relevant to community orders?
Reparative justice- making amends to V/ community
Reform and Rehab- giving treatment they might need, give core skills
Denunciation- shame of tag
FINES: This is the most common way of disposing of a case in the Magistrates' court (£5,000 on an individual, £20,000 on a business). 75% of offenders in 2000 were issued with a fine and 65% in 2008.
However, only a small percentage of offenders in the Crown court are dealt with by way of a fine; when they are, there is no maximum. Fines can be imposed for almost every offence other than murder, but its use must ensure that the amount reflects seriousness of offence and offender's means.
Discounts for early payment are possible (up to 50%), as are penalties for failing to pay (increased by up to 50% by fines officer without needing to go back to court). A Fines Officer can also issue a further steps notice which can require payment to be deducted automatically from wages, or paid via the seizure of property.
Recently there has been a slight decline in use. Lord Carter 2007 has noted that courts are imposing community sentences whereas before they imposed fines.
Advantages and Disadvantages of Fines
- Evidence shows people are less likely to reoffend, though this could in part be explained by the type of offenders that are given fines in the first place.
- Brings revenue into the system.
- Fines do not share the long term disruptive criticisms of prison.
- Can be unfair. Severe for the very poor, negligible to the very rich.
- Non payment.33% of fines are never paid. In 2000/01: £74 million went unpaid. This obviously makes the sentence ineffective. While repeated non payment can lead to imprisonment, this can result in inmates that are in prison for very minor offences. There are a wide range of enforcement methods but in practice, these are rarely used. Difficult to achieve and it removes the responsibility for repayment from the defaulter when this should be seen as part of their punishment. COURTS ACT 2003 introduced discharge of fines by unpaid work and pilots ran between 2004/05. The fine was remitted at a rate of £6 per hour of unpaid work. This was enacted through the statutory instrument "The Discharge of Fines through unpaid work Regulations 2004".
Fixed Penalty Fines
CRIMINAL JUSTICE AND POLICE ACT 2001 has given police the power to impose fixed penalty fines, e.g. being drunk in public place, causing harassment, alarm or distress. The fines are fixed by the Home Secretary.
Payment of fixed fine: Offender must pay within 21 days or opt for trial. If they fail to do either, a sum which is one and a half times the penalty iI be registered against them for enforcement. If the person pays, there is no criminal conviction. no admission of guilt associated with the payment of a penalty.
Examples (taken from The Penalties for Disorderly Behaviour (Amount of Penalty) Order 2008):
• £80 if aged 16 and over, £40 if under 16: throwing fireworks in a thoroughfare (road/highway), wasting police time or giving a false report, sale of tobacco to persons under 18, knowingly giving a false alarm to a person acting on behalf of a fire and rescue authority. • £50 if aged 16 and over, £30 if under 16: being drunk in a highway, other public place or licensed premises, dog fouling, throwing trains at stones, engaging in unacceptable behaviour on the railway.
Advantages and Disadvantages of Fines
- Minor offending no longer escapes unpunishment
- Quick and efficient way of dealing with low level, but disruptive criminal behaviour without draining police resources.
- Take place outside of protective framework of the courts — risk of abuse.
- Problem with people giving false names/addresses.
WHICH THEORIES ARE RELEVANT TO FINES:
DISCHARGES: If court finds offender guilty of any offence (except ones for which the penalty is fixed by law) it may discharge offender either conditionally, or absolutely.
o Conditional: Court discharges offender on the condition that no further offence is committed within a specified period of up to 3 years. If an individual reoffends, the court can impose another sentence in place of the discharge, as well as imposing a penalty for the new offence. Widely used in Magistrates court. In 2008, 6% of offenders received a conditional discharge.
o Absolute: effectively, no punishment is imposed as the court feels that the offender has received enough punishment by going through court and so discharges them. This is likely to be used where an offender is technically guilty, but morally blameless, e.g. tax disc on a vehicle fallen to the floor. In the unlikely circumstance of being prosecuted for this, the court would be very likely to impose an absolute discharge. In 2008, 0.7% of offenders received an absolute discharge.
A discharge does not count as a conviction unless it is conditional and the offender reoffends within the specified time.
DISQUALIFICATIONS: Common punishment for motoring offences is disqualification from driving. A conviction for offences concerning cruelty to animals may also lead to disqualification from keeping animals.
COMPENSATION ORDERS: Courts can order an offender pay a sum of money to V in compensation. Courts are encouraged to use this as they must provide reasons each time they choose not to where they had the power to. Magistrates can order a maximum compensation amount of £5,000. If D has property belonging to V, an order of restitution is made to return the property.
Conditional Discharges- Deterrence
Disqualifications- Retribution, Incapacitation
Compensation orders- Reparation, Retribution