The l990s was a decade in which sentencing law and criminal justice in general received a great deal of attention from both governments who appear to have been vying with each other as to who could be perceived to be the toughest on crime. The result has been a raft of legislation, much of which has been rushed through due to political pressures rather than more deserving causes such as enacting a clear statutory framework in compliance with fundamental human rights. The Criminal Justice Act 1991 represented a fundamental and in many respects rational overhaul of sentencing law.
The Powers of the Criminal Courts (Sentencing) Act 2000 is intended by the current government to consolidate and clarify the law in this area, although, to add to the confusion, certain areas are currently being amended by the Criminal Justice and Court Services Bill. Given that new and major legislation has to be amended and when considering all the legislation enacted in between, and listed below, it is not difficult to draw the conclusion that legislation is added on a piecemeal basis without allowing sufficient time to properly consider the impact of the legislation that is proposed.
The Criminal Justice Act l993 Criminal Justice and Public Order Act l994 Crime (Sentences) Act l997 Crime & Disorder Act l998 Youth Justice & Criminal Evidence Act l999 This essay will selectively consider the legislation and how the enactments have impacted upon the traditional view of sentencing aims as outlined in R v. Sargeant (1974) 60 Cr. App R 74 that is retribution, deterrence, prevention and rehabilitation. Criminal Justice Act 1991
The sentencing aim of this Act is that of 'just deserts' – any sentence must be proportionate to the seriousness of the offence committed rather than, as has often happened, an offender being sentenced on the basis of his previous convictions for which he has already been dealt with. Proportionality is also a key feature in relation to human rights and the enactment was therefore respecting those rights long before they were implemented into domestic law under the Human Rights Act l998 as can be demonstrated by looking at key provisions of the l991 Act listed below:
The Act requires a two stage reasoning process firstly the sentencer is under a mandatory duty to consider the offence seriousness by weighing aggravating and mitigating factors (S. 3 (3) (a) but is then only under a discretionary duty to consider mitigation. Clearly there are cases where it is inappropriate to consider mitigation. Courts were placed under a positive duty to consider community service in relation to middle range offences rather than custody. Cost factors were no doubt implicit in this decision – getting someone to do unpaid community work is much cheaper than putting them in prison.
The l990 White Paper states '…. punishment in the community is likely to be better for the victim the public and the offender.. ' It is difficult to imagine that a victim would actually agree with this statement, but in general the policy of attempting to reduce the use of custody was commendable particularly when considering that deterrent sentencing is ineffective in relation to petty offenders who commit offences on the spur of the moment to perhaps fund a drug habit. Custody is more likely to deter 'white collar' or professional crime where planning and forethought are involved and do seem to merit a custodial sentence.
Criminal Justice Act l993 Governments always wish to increase the level of fines imposed on offenders no doubt to increase revenue for the costly criminal justice system. One of the less than useful measures introduced under ss 18,19 of the l991 Act, unit fines was promptly disposed of again under s 65 of the l993 Act [now consolidated under s 128(2) Power of the Criminal Courts (Sentences) Act 2000 requiring the fine to reflect seriousness and take account of the offender's means.
] Experimental trials used a maximum figure of i?? 25 per unit subject to the offender's ability to pay but by the time the scheme had statutory force the figure had increased to i?? 100 per unit which rather begs the question why they bothered to have the trials at all. The result was embarrassing and damaging publicity for the government. In one instance an offender was charged i?? 1200 for dropping litter the maximum penalty having been imposed because the offender refused to disclose his income.
Clearly the basic rationale of the l991 Act of matching offence seriousness to the penalty imposed was being brought into disrepute and placing an onerous burden on lay Magistrates to 'get it right', although another aim of the l991 Act was being achieved referred to in the l990 White Paper 'Crime, Justice and Protecting the Public' '… to impose substantial fines on an increasing minority of offenders with greater resources… '.
There is nothing wrong, in principle with charging someone with a high income a larger fine than someone on a low income so that as between the two offenders the penalty hurts just as much but this measure serves to emphasise the lack of any proper trial or foresight as to consequences when rushing into such ill advised legislation. Ashworth points out that rather than just abandoning the Scheme it could have been restructured and this certainly does seem to be a 'kneejerk' reaction to political embarrassment. Criminal Justice and Public Order Act l994
This Act achieved most notoriety by virtually removing the 'right to silence' (ss 34-38) whereby someone could realistically face being sentenced for an offence they did not even commit, but more specifically in relation to sentencing in l993 the Home Secretary Michael Howard stated that it was time to 'abandon trendy theories that try to explain crime by blaming socio-economic factors, criminals should be held to account for their actions and punished accordingly' Youths were singled out for special treatment – maximum detention in a young offender institution was raised from 12 months to two years and Crown Courts were empowered to sentence defendants as young as 10 for serious offences.
The established practice of reducing a sentence based upon a prompt guilty plea was given a statutory basis but from this time onwards judges have become increasingly concerned that various enactments are removing their discretion in relation to sentencing matters. Crime (Sentences) Act l997 This Act can certainly be described as controversial in its bid to remove judicial discretion in relation to sentencing and the Lords forced many concessions rendering major provisions almost meaningless. Like other controversial enactments of the former conservative government inspiration was drawn from American law and practice which seems unworkable and inappropriate in the UK thus producing what many would consider ludicrous and inhumane results based on the albeit more stringent American experience (e. g. life for shoplifting).
Nevertheless the concept of 'three strikes and you're out' was doggedly rushed through just before the General Election. S. 2 provides for a mandatory life sentence for the second serious offence. This provision is not so unrealistic when considering the l99l Act sentencing aims of protecting the public and the seriousness of the offence. S. 3 provides for a minimum of 7 years for a third Class A drug trafficking offence but this is realistic based on case law anyway. S. 4 provides for a minimum 3 year sentence on a domestic burglar convicted of a third offence. As a result of the Lords amendment none of these provisions are mandatory, a court can avoid passing the 'prescribed sentence' if 'it would be unjust in all the circumstances to do'.
Ashworth argues that in light of this a court could pass the normal sentence of 18 months to two years on a third time domestic burglar with impunity. In any event many would argue that it is the professional burglar who should receive a higher sentence due to the aggravating factors of this offence e. g. purpose and design/high value of goods stolen as opposed to petty offenders who generally act on impulse but no specific sanction was made against them; the assault on youth crime being the major item on the political agenda and this is still the situation. This lack of proportionality would seem to be a breach of basic human rights principles. The Act has been described as 'rubbish', which on balance does not seem too harsh a criticism.
Clearly, however the current labour administration do not share this view. The somewhat diluted measures are consolidated in the Powers of the Criminal Courts (Sentencing) Act 2000 but when considering that there is for example, under S. 152 of the 2000 Act a 20% discount for an early guilty plea along with the other Lords amendments it is questionable why both governments proceed against fierce opposition from the Law Lords who have effectively won the day and retained their discretion rendering the provisions complex and unnecessary. In addition this measure along with many others may embarrass the current government in that they could be in breach of their own Human Rights Act l998.