Anda di halaman 1dari 11

Sentencing and related matters

1 Introduction
One of the aspects of the criminal justice system which attracts most public
attention and criticism is the sentencing of offenders. Usually the criticism is of
individual magistrates and judges for the leniency of particular sentences or for
what are seen as objectionable comments made in the course of sentencing an
offender.
It is important to realise that there are other levels of analysis which must be
made before one can give a fully informed critique of the sentencing system.
There are theoretical considerations of the possible objectives of sentencing
(which we shall consider in the first section of the lecture on sentencing), and
matters concerned with the legal constraints, both statutory and those based on
the decisions of the Court of Appeal, which will have an impact on individual
sentences.

2 Sentencing: theory and philosophy


Many of the 'problems' of sentencing (including the disparities between courts
and between cases, and the issue of assessing the efficacy of sentences) relate to
the wide variation in the objectives which courts might seek to achieve through
sentencing. In describing these objectives, different authors use differing
terminology: that adopted initially in this handout is based upon Professor Nigel
Walker's categorisation, whilst the current statutory terminology will be used in
section 3 of the handout.
Walker distinguished two main objectives of sentencing: retribution and
reductivism.
2.1 Retribution
(a) Negative (or, 'distributive') retribution
(b) Quantitative retribution
2.2 Reductivism
(a) Individual deterrence
(b) Reformation
(c) General deterrence
(d) Denunciation
(e) Incapacitation

3 The place of crime victims


Attention has recently been focused on the place of the victim in sentencing (and
in the criminal justice system generally - see the initial emphasis in the 2002
White Paper Justice for all on "re-balancing the criminal justice system in favour of
the victim" through to the 2005 version of the Home Office Code of practice for
victims of crime, http://www.homeoffice.gov.uk/documents/victims-code-ofpractice?view=Binary.)

3.1 Victim Impact Statements


Although not necessarily directly linked into the sentencing process, a potentially
important development has been the introduction in several jurisdictions of
schemes with names such as Victim Personal Statements, or Victim Impact
Statements. However, it seems that their impact has sometimes been less
marked than their advocates had hoped in giving victims some real participation
in the sentencing process. Erez and Rogers in their article "Victim impact
statements and sentencing outcomes and process" 39 British Journal of
Criminology 216 - 239 (1999; Law library; full text also available via eLibrary)
concluded their review of Australian and other experiences with the comment
that:
... contemporary VIS practices . . . are successful in maintaining the timehonoured tradition of excluding victims from criminal justice with a thin
veneer of being part of it.
Hoyle et al. also suggested that offering victims the opportunity to provide a
Victim Statement has not been wholly successful:
Hoyle, C. et al. Evaluation of the 'One Stop Shop' and Victim Statement pilot
projects. Home Office Research Development and Statistics Directorate,
Occasional Paper (1998), http://www.homeoffice.gov.uk/rds/pdfs/occ-one.pdf, last
accessed 11 March 2008.
Note, however, that this critical assessment contained in the research by Sanders
and others, of which the publication by Hoyle was a part, has itself been criticised
in the context of an analysis of a similar scheme in Scotland:
J. Chalmers et al. Victim impact statements: can work, do work (for those who
bother to make them) [2007] Crim. L.R. 360.
In spite of the reservations of commentators such as Hoyle and Sanders, the
Home Office implemented a scheme under the designation Victim Personal
Statement in October 2001. A Home Office leaflet
(http://www.cjsonline.gov.uk/downloads/application/pdf/victimstate.pdf) explained
the scheme. Victims could describe the impact of the crime, but were discouraged
from giving their opinion as to what the sentence should be. In Perks [2000] Crim.
L.R. 606 Garland J. in the Court of Appeal set out how a court should respond to a
Victim Impact Statement, and the same principle should apply to Victim Personal
Statements:
The opinions of the victim and the victim's close relatives on the
appropriate level of sentence should not be taken into account. The court
must pass what it judges to be the appropriate sentence having regard to
the circumstances of the offence and of the offender subject to two
exceptions:
(i) Where the sentence passed on the offender is aggravating the victim's
distress, the sentence may be moderated to some degree.
(ii) Where the victim's forgiveness or unwillingness to press charges
provide evidence that his or her psychological or mental suffering must be
very much less than would normally be the case.
The relationship between forgiveness and sentencing in the context of the VPS
scheme is interestingly discussed by Ian Edwards in his article "The place of

victims' preferences in the sentencing of 'their' offenders" [2002] Crim. L.R. 689;
Law library; full text also available via Westlaw.)
In 2005 the Department for Constitutional Affairs proposed in a consultation paper
that relatives of victims of murder and manslaughter should also be able to
present statements to the court before sentence. (DCA Hearing the relatives of
murder and manslaughter victims (2005; last accessed at
http://www.dca.gov.uk/consult/manslaughter/manslaughter.htm on 29/2/2008.)
Ian Edwards took a critical view of the proposal, fearing that "If victims'
expectations are raised but then dashed, the criminal justice system will once
again face accusations of compounding their secondary victimisation." (I. Edwards
'A genuine voice?' (2005) 155 New Law Journal 1341; Law library; full text also
available online via Lexis Professional.) However, the governments response to
the consultation paper was to set up pilot victims advocates schemes in 5 Crown
Court centres.

3.2 Restorative justice


A potentially more wide-ranging development in the criminal justice system can
be seen in the attention now being paid to the concept of 'restorative justice'. This
approach has been more fully adopted in some other jurisdictions. Writing in the
context of New Zealand, Maxwell and Morris have suggested that restorative
justice involves:

the participation of all those affected by the offending in making decisions


about plans to respond to the offending;
the importance of remorse by the offender and the completion of actions
intended to repair the harm to victims;
the reintegration of the offender into the community;
participation by the offender in appropriate and effective rehabilitative
programmes; and
the use of processes that avoid an outcome of enduring shame for the
offender.
(G. Maxwell & A. Morris, 'Putting restorative justice into practice with adult
offenders' (2001) 40 Howard Journal of Criminal Justice 55; Main library,
classmark HV 7231.H6; full text also available online via eLibrary.)

Maxwell and Morris are quite enthusiastic about the New Zealand experience of
projects embodying several elements of restorative justice, claiming favourable
reconviction rates for offenders dealt with in the two schemes they studied (see
their Table 1, p 64). Morris and Gelsthorpe, however, have pointed out that in
England:
restorative processes will continue to occupy a marginal place in criminal
justice until contradictory values and practices of blaming and punishing
are given significantly less emphasis and restorative values and practices
are given significantly more emphasis. (A. Morris, & L. Gelsthorpe,
'Something old, something borrowed, something blue, but something
new?' [2000] Crim. L.R. 18; Law library; full text also available online via
Westlaw.)
A major evaluation of restorative justice schemes for young offenders in England
suggested that reconviction rates were not very dissimilar to those for a random

sample of other comparable offenders. However, the authors of the report also
noted, under the heading of 'Outcomes', that:
Eighty-three percent of offenders successfully completed their order or
Final Warning intervention. Where the views of victims and offenders were
sought, the responses were encouraging. On average, over three-quarters
of both victims and offenders felt well prepared by project staff, found the
process fair, agreed that their participation was voluntary and believed
that the intervention had helped the offender to take responsibility for the
offence, and seven out of 10 thought that the offender better understood
the impact of the offence on the victim.
(A. Wilcox & C. Hoyle, The national evaluation of the Youth Justice Board's
restorative justice projects. 2004; last accessed 29/2/2008 at
http://www.youth-justiceboard.gov.uk/Publications/Scripts/fileDownload.asp?
file=restorativejusticefull.pdf)
If the idea of embodying elements of restorative justice in the English criminal
justice system has little more than a marginal place at the moment, adopting a
restorative justice approach in offences of rape is likely to be some way off.
However, just such an approach has been advocated in a conference paper by
Martin Wright, Visiting Research Fellow in the School of Legal Studies at the
University of Sussex: Is mediation appropriate even for rape? (There is a link to a
pdf copy in WebCT.)

3.3 Community Justice Centres


The experimental Community Justice Centre opened in Liverpool in September
2005, utilising a single judge (a prominent figure in the local community) and a
range of agencies and services located onsite. These extracts from a Ministry of
Justice research report indicate the wide ranging objectives of the Centre,
involving victims and the wider community, and outline the major findings of a
preliminary evaluation of the scheme.
[T]he objectives of the NLCJC are to:

reduce low-level offending and anti-social behaviour;

reduce fear of crime and increase public confidence in the criminal


justice system (CJS);

increase compliance with community sentences;

increase victims and witnesses satisfaction with the CJS;

increase the involvement of the community in the CJS; and

reduce the time from arrest to sentence.

Impacts of the NLCJC to date

The full impact of the NLCJC across many of its objectives may take years to
assess as the Centre develops and embeds itself in the local community.
However, the early evidence is that the Centre is making progress towards
many of its original objectives, and that much has been learnt about new
models for delivering community justice.
Findings from the evaluation to date suggest that the NLCJC has made
particular progress in relation to reducing the time from arrest to sentence.
The strong judicial leadership and efficient operation of the court are leading
to fewer adjournments and fewer hearings overall, thus ensuring that cases
are dealt with quickly. The effective case management, problem-solving
approach and the powers to review progress on Community Orders under
section 178 of the Criminal Justice Act 2003 are also supporting compliance
with community sentences.
The distinctive community focus of the Centre has enabled local people to
influence its working and increase involvement in the criminal justice system.
Evidence suggests, however, that so far the Centre has only succeeded in
engaging community members who were already active.
Work remains to be done in addressing a number of the other objectives for
the NLCJC. Victim and witness satisfaction is being achieved for individual
victims. However, despite examples of successful community reparation
projects, awareness among the local community of what the NLCJC is doing in
terms of repairing harm to the wider community remains low. There was also
mixed evidence from interviews with community members as to the
Centres impact on local confidence in the criminal justice system or fear of
crime in the area.
(K. McKenna Evaluation of the North Liverpool Community Justice Centre
Ministry of Justice Research Series 12/07, pp. i, vii viii, 2007, last accessed
29/2/2008 at http://www.justice.gov.uk/publications/research291007c.htm)

3.4 Side-effects of sentences


Sentences will inevitably have effects beyond those direct and formal
consequences intended by the magistrates and judges who impose them. Formal
or stated objectives may be undermined if there are additional consequences
operating as unintended side-effects of a sentence.
Susan Easton has considered whether courts should take account of the impact of
sentences in a variety of circumstances, with particular reference to the question
of whether reducing sentences in such circumstances can be consistent with
retribution. The extract below is one element in her discussion:

Family obligations and third party impact


The questions of family obligations and third party impact of punishment,
notably on children, also create difficulties for the courts. The impact on
dependent children is taken account of in some cases, but not others, and
only minor reductions are made to lessen the impact on children. Many
prisoners have family obligations and the loss of a parent - of either sex may have adverse implications for children, as will the loss of the support
of an adult child to an elderly and possibly dependent parent. Inevitably,
there will be some collateral third party costs and the impact on prisoners'
families is well documented here and in the United States.

But generalised as a sentencing principle, taking account of family


obligations could lead to absurd and unfair results. One could imagine a
scenario where both parents are convicted of serious offences, but it would
clearly be absurd to reduce the sentence of either in order not to deprive
young children of a parent. There is a danger here of idealising family life
when conditions in foster care may be an improvement, if, for example,
there is violence perpetrated within the family or drug or alcohol abuse. So
in some situations moving the individual away from a pernicious family
influence may be beneficial. Moreover, if family impact mitigation were
introduced, the courts would have to make judgments about good and bad
mothers, which would open the door to gender biases and stereotyping. It
would also stray far from retributivism which focuses on the responsibility
of the offender for the specific offence, not the offender's proficiency in
other life skills. Taking account of impact on family members raises
problems for retributivism in so far as it infringes the principle of equal
punishment.
Of course avoiding third party harm is also crucial to retributivism which
clearly focuses on the culpability and punishment of the offender, and
efforts should be made to avoid third party impact as far as possible. A
better way of dealing with the issue is providing more support to prisoners'
families and these issues are now receiving more attention. A range of
measures might be relevant here in reducing third party impact, for
example, family friendly policies such as improving visiting
arrangements and conditions for the reception of family members, a more
generous policy on home visits, allowing incoming calls to prisons and
using intermittent custody to avoid disruption to family life, and other
imaginative options, in other words, through prison reform for the benefit
of all prisoners, rather than through sentencing variations. In view of these
issues, it is therefore disappointing that intermittent custody has now been
withdrawn. It is also important to ensure that families do not receive
further punishment on release, by making access to housing or
employment more difficult. Improving this access and formulating policies
which facilitate the resumption of family life will clearly be crucial here.
The issue of family obligations arises most often in relation to female
prisoners as women are more likely to be prime carers of children or
elderly relatives, but reducing a sentence on this ground is introducing an
extraneous issue into the sentencing process.
Better access to family visits for all prisoners might be a more appropriate
response to family obligations. Ideally, priority should also be given to
placing all prisoners nearer home, to enable links with their families to be
maintained. The policy now is to allocate women prisoners near home if
possible, although in practice this may still be a considerable distance from
home in some cases, as there are far fewer women's than men's prisons.
For this reason the Corston Report has recommended closing down existing
women's prisons and replacing them with small secure units to enable
women to be located nearer their homes.
A general policy giving priority allocation to those with most pressing
needs, whether family related or health related, would deal with any
concerns about special treatment for female prisoners. There are also
financial benefits, as being nearer home reduces the costs to the public of
assisted visits. Many of the issues which are objects of campaigns for
female prisoners, such as improved visiting rights, would also benefit their
male counterparts if generalised to the whole prison population.

(S. Easton Dangerous waters: taking account of impact in sentencing


[2008] Crim LR 105; footnotes omitted; full text available via eLibrary)

4 Current sentencing principles


For much of the 20th century it was accepted that reform and rehabilitation of
individual offenders should be one of the major objectives for sentencers.
However, the Criminal Justice Act 1991 made it clear that the principal criterion
for sentencing should be proportionality - matching the severity of the sentence to
the seriousness of the offence.
4.1 Purposes of sentencing, and basic framework
The Criminal Justice Act 2003 sets out several factors to which sentencers should
have regard (see, for example, ss. 142, 143, whilst preserving a strand of
proportionality (see, for example, ss. 152, 153).
142 [Purposes of sentencing]
(1) Any court dealing with an offender in respect of his offence must have
regard to the following purposes of sentencing(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their
offences.
...
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 forseeably 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.
(3) In considering the seriousness of any offence committed while the
offender was on bail, the court must treat the fact that it was committed in
those circumstances as an aggravating factor.
...
152 [General restrictions on imposing discretionary custodial sentences]
(1) This section applies where a person is convicted of an offence
punishable with a custodial sentence other than one [fixed by law or ...]
(2) The court must not pass a custodial sentence unless it is of the opinion
that the offence, or the combination of the offence and one or more

offences associated with it, was so serious that neither a fine alone nor a
community sentence can be justified for the offence.
...
153 [Length of discretionary custodial sentences: general provision]
(1) This section applies where a court passes a custodial sentence other
than one fixed by law or falling to be imposed under section 225 or 226.
(2) Subject to section 51A(2) of the Firearms Act 1968 (c. 27), sections
110(2) and 111(2) of the Sentencing Act and sections 227(2) and 228(2) of
this Act, the custodial sentence must be for the shortest term (not
exceeding the permitted maximum) that in the opinion of the court is
commensurate with the seriousness of the offence, or the combination of
the offence and one or more offences associated with it.

4.2 Dangerous offenders


The CJA 2003 introduced sentences of imprisonment for public protection (IPP) for
serious offences where there is a significant risk to members of the public of
serious personal injury from further offences committed by the defendant. IPP is
essentially an indeterminate sentence to which the court attaches a minimum
period before which the Parole Board cannot consider release.
The Prison Reform Trust has argued that IPPs are amongst the reasons for the
continued recent increase in the prison population to record numbers:
Prison Reform Trust Indefinitely maybe? How the indeterminate sentence for
public protection is unjust and unsustainable (2007; available online at
http://www.prisonreformtrust.org.uk/temp/IPPspfinalhs1hs.pdf, last accessed
2/3/2008.)

4.3 Sentencing discount for guilty pleas


The CJA 2003 puts on a statutory footing the long-standing policy of the courts to
reduce the sentence when an offender pleads guilty:
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.
How does the sentencing discount relate to the purposes of sentencing set out in
s142 CJA 2003?
The Sentencing Guidelines Council has issued a guideline for courts on the
application of the sentencing discount. These are the key paragraphs from the
latest (July 2007) version of the guideline:
2.2 A reduction in sentence is appropriate because a guilty plea avoids the
need for a trial (thus enabling other cases to be disposed of more
expeditiously), shortens the gap between charge and sentence, saves

considerable cost, and, in the case of an early plea, saves victims and
witnesses from the concern about having to give evidence. The reduction
principle derives from the need for the effective administration of justice
and not as an aspect of mitigation.
4.2 the level of the reduction will be gauged on a sliding scale ranging
from a recommended one third (where the guilty plea was entered at the
first reasonable opportunity in relation to the offence for which sentence is
being imposed), reducing to a recommended one quarter (where a trial
date has been set) and to a recommended one tenth (for a guilty plea
entered at the door of the court or after the trial has begun).
5.3 Where the prosecution case is overwhelming, it may not be appropriate
to give the full reduction that would otherwise be given. Whilst there is a
presumption in favour of the full reduction being given where a plea has
been indicated at the first reasonable opportunity, the fact that the
prosecution case is overwhelming without relying on admissions from the
defendant may be a reason justifying departure from the guideline.
(Sentencing Guidelines Council Reduction in sentence for a guilty plea
(2007) full text available online at http://www.sentencingguidelines.gov.uk/docs/Reduction in Sentence-final.pdf, last accessed
2/3/2008)

4.4 Further reading


For commentary and further material on the sentencing provisions of the Criminal
Justice Act 2003 see:
A. Ashworth, 'Criminal Justice Act 2003: criminal justice reform - principles, human
rights and public protection' [2004] Crim. L.R. 516. (HLL, and full text available
online via Westlaw; copy attached to the printed version of this handout.)
A. von Hirsch & J.V. Roberts, 'Legislating sentencing principles: the provisions of
the Criminal Justice Act 2003 relating to sentencing purposes and the role of
previous convictions' [2004] Crim. L.R. 639. (HLL, and full text available online via
Westlaw.)
Sentencing Guidelines Council, Overarching principles: Seriousness (2004;
accessed at http://www.sentencingguidelines.gov.uk/docs/Seriousness_guideline.pdf on 10/3/08.)

5 Sentencing in offences of rape


There is now fairly comprehensive guidance for judges when it comes to
sentencing rapists (see below). However, the sentencing function was not always
so well supported. Some judges said and did things when sentencing rapists
which exposed them to considerable public criticism, and probably contributed to
the feelings which lead some victims not to report offences to the police. See, for
example:
Allen (unreported, 1981)
Horscroft (1985) Cr. App. Rep. (S) 254 (CA)
Partly as a response to such criticism the Court of Appeal set out guidelines:

Billam [1986] 1 All E.R. 609; (1986) 82 Cr. App. Rep. 347
At the time of Billam, marital rape was not an offence, so the case provided no
guidelines for such situations; neither did the Court of Appeal deal in the
guidelines with any possible differences between 'stranger rape', 'relationship
rape' and 'acquaintance rape'. In its Advice to the Court of Appeal in 2002 the
Sentencing Advisory Panel noted that "the existing practice of the courts ... is to
treat the relationship as a mitigating factor, albeit one for which credit may be
reduced or lost in cases where serious aggravating factors (especially violence)
are present" (para 23).
The recommendation of the Panel (para 26) was that the Court of Appeal should
make a clear statement to the effect that all three types of rape should be treated
as being equally serious. The Panel reached this conclusion on the basis of
commissioned research which showed clearly that rape by a husband or partner is
as serious as 'stranger rape' in terms of its impact on the victim (para 24). The
Panel reported (para 23) that "Although 'stranger rape' is seen as a more
frightening and potentially dangerous experience, the breach of trust involved in
'relationship rape' or 'acquaintance rape' makes it equally serious."
That advice was accepted by the Court of Appeal in Millberry [2002] EWCA Crim
2891; [2003] 1 W.L.R. 546, [2003] Crim. L.R. 207 which otherwise in general
endorsed the approach in Billam. whilst adding four aggravating features to the
list provided in Billam.
[Additional reading: see P.N.S. Rumney, 'Progress at a price: the construction of
non-stranger rape in the Millberry sentencing guidelines' (2003) Modern Law
Review 870 (Law library; full text also available online via eLibrary.]
In June 2006 the Sentencing Guidelines Council published a draft Consultation
Guideline on all the offences covered by the Sexual Offences Act 2003, which was
eventually followed in 2007 by a Definitive Guideline on the SOA 2003. The
section dealing with rape is attached to the printed version of this handout; the
full text of the document is available at http://www.sentencingguidelines.gov.uk/docs/0000_SexualOffencesAct1.pdf (last accessed 10/3/08).
The length of sentences for rape increased considerably following Billam, but it
has been shown that the increase had started before the Court of Appeal's
decision in that case:
C. Lloyd & R. Walmsley, Changes in rape offences and sentencing. (Home Office
Research Study 105, 1989) (Law library)
The Sentencing Advisory Panel, in its Advice to the Court of Appeal in 2002
dealing with sentencing in rape, provided this statistical information:
... the average sentence for an adult offender sentenced to immediate
custody for rape in 2000 was 7 years 4 months (7 years 6 months on a not
guilty plea and 6 years 10 months on a guilty plea). The majority of
sentences (57%) fell within the range 5-10 years, but 25% of offenders
received sentences of under 5 years, and 17% were sentenced to more
than 10 years (including 10% whose sentence was life imprisonment). It is
impossible to tell from this statistical pattern whether sentencers are
departing from the Billam guidelines in imposing sentences below 5 years,
or whether these apparently lenient sentences are justified by the
circumstances of individual cases.

In the June 2006 Consultation Guideline on the Sexual Offences Act 2003, the
Sentencing Guidelines Council gave this updated information and assessment
(para 2A.2):
In 2004, the vast majority (72%) of custodial sentences were for more than
5 years, with 86% being over 4 years. The average sentence was 7
years. There is no reason to suppose that the average length of sentence
will be reduced as a result of any of the measures in the Act or the
recommendations for starting points set out in these guidelines.