Sentencing

Question 1

What act sets out the purposes of sentencing?

Answer 1

The Criminal Justice Act 2003.

Question 2

What must the court consider when sentencing?

Answer 2

• the punishment of offenders
• the reduction of crime (including reduction by deterrence)
• the reform and rehabilitation of offenders
• the protection of the public
• the making if reparation by offenders to persons affected by their offences

Question 3

What are the main aims of sentencing?

Answer 3

• retribution
• denunciation
• incapacitation
• deterrence (individual and general)
• rehabilitation
• reparation

Question 4

What is retribution?

Answer 4

This is the idea that we punish because the offender deserves punishment. The punishment must fit the crime and so the sentence must be proportionate to the crime that was committed. This theory was put forward by Von Hirsch who argued that we punish in order to redress the balance. When an offender commits a crime he has an advantage over the rest of society. Punishment is important as it takes away this advantage. ‘The violator ceases to be at an advantage over his non-violating fellow’. It is often known as the ‘just deserts theory. The crudest reform of retribution is an ‘eye for an eye and a tooth for a tooth’. In the UK retribution exists in the form of tariff sentencing, this is where recommended sentences are provided. The sentencing council is responsible for creating guidelines.

Question 5

Evaluation of retribution?

Answer 5

This theory has been criticised for being short sighted as it is only concerned with punishment. It does not attempt to rehabilitate the offender in any way. It does not aim to reduce crime or alter the offenders behaviour. It is described by some as ‘institutionalised revenge’. It can be extremely unfair and it is often used to justify harsh sentences. It would not allow the use of ‘mitigating circumstances’ to reduce sentences. For example, a homeless person who committed theft would be treated the same as a person who was wealthy.

Question 6

What is denunciation?

Answer 6

Denunciation is a way of society expressing disapproval of criminal activity. A sentence indicates to the offender and to society that offending behaviour has been condemned and that justice is being wrong. Denunciation also reinforces moral boundaries and teaches society right from wrong. For example, drink and driving campaigns have now made drink driving a morally frowned upon offence. However, it was previously considered to be acceptable behaviour. Denunciation and retribution usually go hand in hand.

Question 7

Evaluation of denunciation?

Answer 7

Denunciation theory is problematic because it is limited, it simple denounces criminal behaviour but does not seek to reform offenders. It does not rehabilitate offenders. It can also be used to justify excessive penalties.

Question 8

What is incapacitation?

Answer 8

Incapacitation states that punishment is necessary if only to prevent an offender from committing further crimes. This protects society from offending behaviour. Of course, the ultimate penalty is the death penalty and in some countries thieves have their hands cut off to prevent further thieving. In America, sex offenders have been incapacitated by medical treatment. Banning drink drivers from driving is also a form of incapacitation. Also a curfew requirement as part of Community Order incapacities through tagging and insisting that offenders remain at home at certain times.

Question 9

Evaluation of incapacitation?

Answer 9

Incapacitation leads to huge populations, over the last 5 years the prison population has risen by nearly 20,000. This is extremely costly, this UK has one of the highest prison populations in Europe and yet the crime rate is higher than in many other countries. Incapacitation does not try to reform offending behaviour and it is very limited. It is often used with recidivists, people who continue to offend and people who present a threat to society.

Question 10

What are the two parts of the deterrence theory?

Answer 10

Individual and general.

Question 11

What is individual deterrence?

Answer 11

Individual deterrence sentencing is concerned with deterring the individual from committing further offences. Excessive sentences can be used here such as heavy fines and lengthy custodial sentences. It assumes that an offender will stop to think about the consequences of his offending behaviour when in fact many offences are committed on the spur of the moment. Much of offending behaviour is also committed through either drugs or alcohol.

Question 12

Evaluation of individual deterrence?

Answer 12

Individual deterrence sentences can lead to unfair and excessive punishments such as in R V Whitton 1985 where a football hooligan was given a life sentence for football hooligan. Prison is not an effective deterrent as 55% of adult prisoner re-offend withing 2 years of release. The rate is even higher for young offenders at about 80%.

Question 13

What is general deterrence?

Answer 13

This operates on the basis that excessive penalties will act as a deterrent to the rest of the population. For example in R V Whitton the sentence was given to deter the rest of the population. In R V Ezair 2001 the defendant had robbed a Manchester University student, there had been 700 robberies that year in the vicinity of the university and the judge described this as ‘a blot on the City of Manchester’. He sentenced Ezair to 4 years in prison as a deterrent to others.

Question 14

Evaluation of general deterrence?

Answer 14

The main problem with general deterrence is excessive penalties. It can lead to lengthy sentences purely to make a point to the rest of society. It is also difficult to measure its effectiveness. America has the death penalty to deter criminals but it has the highest homicide rate in the world. In the UK, evidence does suggest that the cracking down on drink driving has led to a reduction in crime relating to this offence. Critics point out that theory of individual deterrence assumes that offenders stop to consider the consequences of their actions. Most crimes are spur of the moment actions and many are committed under the influence of drink and drugs When there was a police strike in Liverpool in 1919 planned crimes e.g. burglaries, increased but it made no difference to violent crimes. Fear of being caught is more of a deterrent but while crime detection rates are low the threat of a severe penalty is too remote to have much of an impact. General deterrence relies on publicity of severe punishment. It is in direct conflict with the principle of retribution as it involves sentencing offenders to a longer term than is deserved for the specific offence. It is probably the least effective and least fair principle of sentencing.

Question 15

What is rehabilitation?

Answer 15

The main aim of the theory is to rehabilitate the offender so they can return to normal society and not commit any further offences. Rehabilitation philosophy is reflected in many of the community penalties such as supervision orders, drug treatment and testing orders. Persistent offender are usually less likely to respond to reformative sentences. Powers of Criminal Courts (Sentencing) Act 2000 states that in considering the seriousness of the offence the court may take into consideration any previous failures to respond to previous sentences.

Question 16

Evaluation of rehabilitation?

Answer 16

The problem with rehabilitation is that it leads to individualised sentences and this therefore leads to disproportionate sentences and sentencing inconsistency. Offenders who have committed exactly the same crime may be given different sentences. Another criticism is that it tends to discriminate against the underprivileged, those from poorer backgrounds are less likely to be seen as candidates for reform.

Question 17

What is reparation?

Answer 17

This is aimed at compensating the victim of crime. An offender may be ordered to pay a sum of money or to return stolen property or complete unpaid community work. Section 130 of Powers of the Criminal Courts (Sentencing) Act 2000 requires the courts to give reasons if they do not make a compensation order. The concept of restitution to society as a whole exists, the main way this is done is when offenders are required to work on a community project.

Question 18

What are the adult custodial sentences?

Answer 18

The Criminal Justice Act 2003 says prison sentences should only be passed when the crime is so serious that neither a fine nor a community sentence is justified. Prison is only available where the offender is over 21. There are various types of sentencing:

• mandatory life sentences are given to a person convicted of murder, the minimum term to be served before being eligible for releases ranges from 15 years to life. The Criminal Justice Act 2003 sets out the minimum tariff. If the offender is considered suitable for release by the Parole Board, they will be on licence for the rest of their life.
• Discretionary life sentences are available for some other offences e.g. robbery, rape etc.
• Fixed term sentences are where the court fixes the amount of time an offender has to stay in prison, this is the most usual type of sentence. When an offender is sentenced to over 4 years, he must serve two thirds of the sentence and where a sentence for less than 4 years is imposed he must serve half the sentence.
• Indeterminate sentencing under the Criminal Justice Act 2003. These are for dangerous offenders where there is a significant risk to members of the public through the offender committing further offences. The courts sets the minimum amount of time the offender has to spend in prison before they are eligible for release by the Parole Board.
• Home detention curfew, early release from prison can have an order attached, this helps to reduce the prison population and is said to help offenders to structure their lives. The curfew is enforced by electronic tagging, there is no automatic right to be released on curfew, each prisoner is individually assessed.
• Whole life orders are extremely rare and are given to the most serious and persistent offenders, they can only be released on compassionate grounds with the permission of the State Secretary.
• Extended sentences which are used for sexual and violent offences where there is a significant risk of harm to the public by the offender re-offending. The offender is given a custodial sentence combined with an extended period that must be served on licence, they cannot exceed 10 years for sexual offences and 5 years for violent offences.
• Minimum sentences are available fro over 18 year olds only, there is a minimum of 7 years for 3 convictions in dealing Class A drugs and 3 years for 3 convictions of burglary of a residence.
• Suspended sentences can be imposed for up to 2 years, if an offender commits an offence within a set period he must serve the original prison sentence plus the new sentence. It should only be imposed in exceptional circumstances and where an immediate prison sentence would have been appropriate apart from those circumstances.

Question 19

What are the adult community penalties?

Answer 19

The Criminal Justice Act 2003 creates one community order with different requirements:
- the unpaid work requirement which requires the defendant to work for between 40 and 300 hours on a project organised by probation. It can entail painting school buildings, mending fences etc.
- prohibited activity requirement which allows activities to be prohibited such as wearing a hoodie, carrying paint or spray cans if the defendant has been charged with criminal damage.
- curfew requirement, an offender can be ordered to remain within a fixed address for between 2 and 16 hours within a 24 hour period. The order lasts up to 12 months, it is often enforced by electronic tagging.
- exclusion requirement, offenders are excluded from entering certain places at certain times of day on set days e.g. pubs, clubs or football grounds. It can be imposed for up to 2 years for those over 16 and three months for those under 16.
- supervision requirement, an offender is placed under the supervision of a probation officer for a period of up to three years.
There are a number of requirements designed to rehabilitate and these are:
- a mental health requirement, this requires an offender to seek mental health treatment provision in the form of classes and therapy.
- a drug rehabilitation requirement, this will require an offender to attend a drug rehabilitation centre and it incorporates regular testing to ensure compliance.
- an alcohol treatment requirement, this requires an offender to follow an alcohol treatment programme.

Question 20

What are other sentences for adults?

Answer 20

• fines, the maximum fine is £5,000 from the Magistrates Court. The Crown Court rarely use fines but if they do they have unlimited fining powers.
• conditional discharge, can be imposed for up to a three year period. The offender is discharged but if a further offence is committed within the time limit then the original sentence can be imposed on top of a new sentence for the additional offence.
• absolute discharges, there is no penalty imposed here. It is often imposed where the offender is morally blameless.
  The courts also have powers aimed to compensate victims that can be attached to sentences. Compensation or restitution orders require a defendant to pay a sum of money to the victim or to restore property. Deprivation and forfeiture order can order an offender to be deprived of property he used to commit an offence. The Proceeds of Crimes Act 1995 also gives the court powers to take from criminals the proceeds of their crimes for up to 6 years.

Question 21

What are youth offenders?

Answer 21

Offenders aged between 10 and 17 are classed as youth offenders and are usually tried in the Youth Court except in serious cases where the case is heard in the Crown Court. Under Section 142 of the Criminal Justice Act 2003, the main aim of youth sentencing is to prevent re-offending and rehabilitate the offender.

Question 22

Pre-court sentencing or disposals: reprimands and warnings?

Answer 22

These are disposals available in the youth justice system for those offenders who have committed a first offence or who plead guilty to an offence. These are not sentences but they are used by the police to deal with young offenders without bringing a case to court.
A reprimand is a formal warning given by the police to someone who admitted committing an offence or who has been caught committing an offence. The offence must be a minor first offence and the youth is given the opportunity to voluntarily participate in a programme run by the Youth Offending Team.
A final warning is similar to a reprimand but is given for a second minor offence to which the youth pleads guilty. The Youth Offending Team programme becomes compulsory in this instance and a programme of activites will be written to address the offending behaviour.
Youth offending teams: each local authority has to establish at least one team in their area. This is a panel of people consisting of police officers, members of the probation service and other key individuals who assist in the rehabilitation of young offenders. Any offender who has been warned must be referred to the team, youth courts can also refer.

Question 23

What are custodial penalties for youth offenders?

Answer 23

• Youth offenders institution, for those aged between 15 and 20. The minimum sentence is 21 days and the maximum sentence is the maximum for that particular offence. If an offender becomes 21 while serving the sentence he will then be transferred to an adult prison.
• detention at Her Majesty’s Pleasure, for murder only if the offender is aged between 10 and 17 years old. This is an intermediate sentence and the judge will recommend a minimum sentence.
• Detention and training order, the sentence must be for a specified period i.e. 4, 8, 10, 12, 18, 24 months. It is only for those from the age of 12 to the age of 21. The first half is served in custody and the second half is served in the community under the supervision of the youth offending team. It is designed to give offenders a short, sharp shock. For under 15 year olds this sentence is only available for persistent offenders.

Question 24

Community penalties for youth offenders?

Answer 24

Community penalties for young offenders are now governed by an Youth Rehabilitation Order, introduced under the Criminal Justice and Immigration Act 2008. The court can mix and match requirements to suit the offender, young offenders are supervised by the Youth Offending Team. The requirements that can be attached to a Youth Rehabilitation Order are as follows:
- an activity requirement, this requires attendance at educational and training classes and they will concentrate on CV writing and interview techniques.
- attendance centre requirement, for those aged between 10 and 25. It involves attendance at a special centre for 2 to 3 hours a week. There is a minimum of 12 hours and a maximum of 36.
- supervision requirement, those under 18 are placed under the supervision of the social services, a probation officer or a youth offending team. This can be a part of an action plan order which can combine a number of requirements such as participating in set activities, presenting him/herself to a specified person or to attend an attendance centre.
- unpaid work requirement, for those aged 16 or 17 at the time of their conviction.
- a prohibited activity requirement
- a curfew requirement
- an exclusion requirement
- an education requirement, aimed at those in education.
- a residence requirement, an offender under the age of 17 can be placed in the care of the local authority.
- a drug treatment requirement, teamed up with a drug testing requirement.
- fines, for 10 to 13 year olds up to £250 and for 14 to 17 year olds up to £1000.
- reparation order, this can be given to anyone under 18 and can be made to make reparation to either the victim or community at large.
- discharges, absolute and conditional discharges are also available for young offenders.
Parental responsibility - under the Criminal Justice Act 2003, parents have to agree to be bound over to keep their child under control. If the child commits an offence during the period of the bind over, which can be up to one year then the parents are fined up £1000. The courts can also make parenting orders which are intended to offer training and support to parents to help them change their child’s offending behaviour.

Question 25

Sentencing practice in courts - the role of the courts?

Answer 25

When a person pleads guilty or is found guilty of an offence the courts role is to decide the sentence. The judge is responsible for sentencing in the Crown Court and Magistrates in the Magistrates Court. In the Magistrates court there is a limit of 6 months in prison for one offence and 12 months for two or more convictions and a limit of £5,000 fine. In the Crown Court a fine is unlimited and a custodial sentence is given up the permitted maximum for the offence. Parliament sets the maximum sentence for offenders e.g. mandatory life sentence for murder or seven years for theft. The Sentencing Council produces guidelines on sentencing and these include starting point and range for a sentence. They also set out factors which make an offence more serious or less serious. The tariff or length of the sentence is determined by the courts looking at these factors.
The courts will consider both the offence and the background of the offender. In order to do so they need to know the details of the offence, so where a defendant pleads guilty the prosecution outline the facts of the case and he is asked whether or not he agrees with them. The details of the offence are important because it can affect the sentence. A full trial will take places if a defendant pleads not guilty to establish all the facts and evidence in the case. The seriousness of the offence is considered and whether or not it was intended, could have been foreseen or reckless.

Question 26

Aggravating factors?

Answer 26

Some factors will make the offence more serious and in turn could increase the sentence. These include:

• previous convictions for an offence of a similar nature or relevant to present offence
• was the defendant on bail when he committed the offence?
• was racial or religious hostility involved in the offence?
• was hostility to disability or sexual orientation involved in the offence?
• was the person in a position of trust?
• was the act premeditated e.g. assault?
• was the victim vulnerable person e.g. young or elderly?
• if it was a joint crime, the court will want to know what part each played in it, so the sentence will be reflective of the part played by this offender.

Question 27

Mitigating factors?

Answer 27

Some factors may help to reduce the sentence for the offender. These include:

• first offence
• showing remorse
• if drugs are involved and they agree to take part in a drugs rehabilitation programme
• how helpful have they been to the police e.g. if it was a burglary have they told police where property was being hidden
• if a joint venture have they identified who the other participants were?

Question 28

Reduction in sentence for a guilty plea?

Answer 28

There can be a reduction in sentence particularly where the plea is made early on in the proceedings. Up to a third if they plead guilty at the first opportunity. Up to a quarter after the trial date has been set. Up to a tenth at the door of the court or when the trial has started. After that there is no reduction.
The offenders background is taken into account such as previous convictions; pre-sentencing reports, medical reports and the financial situation of the defendant if the court considers a fine is suitable.

Question 29

The Sentencing Council?

Answer 29

This was set up under the Coroners and Justice Act 2009 with the aim of encouraging transparency and consistency in sentencing. When deciding what sentence to impose several factors are considered and whether the offender is an adult or young offender. For young offenders the main aim of the youth justice system is to prevent offending and in deciding the appropriate sentence, the court will consider mitigating and aggravating factors. With adult offenders the aims of sentencing are considered as well as mitigating and aggravating factors.

Question 30

The Youth Justice System?

Answer 30

The age of criminal responsibility is 10, which is lower than other European countries and has been criticised by the United Nations Committee on the rights of a child. Offenders aged between 10 and 17 are classed as youth offenders and are generally tried in the Youth Court unless the case is very serious and then it will be tried in the Crown Court. The Youth Courts are staged by specially trained magistrates and the court is physically separated from the adults magistrates court. The court is not open to the public and only those involved in the proceedings should be present. There is limited access to the press and reporting restrictions apply. The procedure is less formal than in the adult courts. Young offenders are entitled to have an appropriate adult.
If the offence is a serious one e.g. murder the case is heard in the Crown court. Youths can also be tried in the crown court if they are being tried alongside an adult offender. The role of the Youth Court was consolidated in the case of Thompson and Venables V UK 1999, where the European Court of Human Rights held that it was a breach of Article 6 ECHR to have youths tried in an adult court because it was perceived as intimidating and daunting for them. Subsequently, under a practice direction 2000 the trial judge must take account of the age, maturity and intellectual and emotional development of the young person on trial and take steps to make the experience less stressful, including altering the layout of the courtroom and discarding wigs and gowns.
Under Section 142 of the Criminal Justice Act 2003 the main aim of sentencing young offenders is to prevent re-offending and rehabilitate the offender. A court has a range of possible sentences, custodial, youth rehabilitation order and pre-court disposals. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 brings some change to certain aspects of the sentencing regime.

Question 31

Penal policies and their effect?

Answer 31

The UK sends a higher percentage of its population to prison than any other EU country. The changes in sentencing policy over the last few years are reflected in sentencing policy over the last few years are reflected in the changing size of prison populations as the government has first attempted to reduce the number of defendants sent to prison for relatively minor offences and then to some extent reversed their policies in an effort to be seen as the party of ‘law and order’. Under the Criminal Justice Act 2003 the government introduced tougher community penalties to try to avoid using custodial sentences but despite this the prison population has continued to increase.
According to the Howard League for penal reform there were 85,684 people in prisons and young offenders institutions in England and Wales on the 15th May 2015, an increase of 766 more people compared to the same time in 2014. Fewer women than men are in prison, just under 4,000 in May 2015. The Fawcett society is critical of the number of women sent to prison and point out that custodial sentences for women are:
- inappropraite as over half of women in prison have suffered domestic violence and one in three has experienced sexual abuse.
- damaging to the women as prison causes damage and disruption to the lives of vulnerable women. 70% of women prisoners have mental health problems and one in three has attempted suicide.
- damaging to families, approximately two thirds of women in prison has dependent children.
- ineffective, the most common offences for which women are sent to prison are for theft and handling stolen goods and 65% reoffend on release.