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REPEAT AND PERSISTENT OFFENDERS HISTORY Prevention of Crime Act 1908: Preventive DetentionSentence of 5-10 years in addition to the normal sentence Used for offenders with 3 previous felony convictions since 16
Churchill (1910): the Act should only apply to offenders who are not "merely a nuisance but a serious danger to society"Preventive detention no longer used for "mere pilfering"
Criminal Justice Act 1948: Preventive Detention-
Sentence of 5-14 years instead of normal sentence (no longer in addition to) Used for persistent offenders aged 30 or over o Included not only professional criminals but also those with persistent but relatively trivial records Fell into disuse
Criminal Justice Act 1967: Extended SentenceCourts can go beyond statutory maximum if necessary to protect the public, based on offender's record Was not significantly used, since many petty offenders fell within its scope
Criminal Justice Act 1991General provision on persistent offenders but repealed in 1993 Gave vague allowances for a longer sentence for violent or sexual offenders if necessary to protect the public from serious harm
Criminal Justice Act 2003Required proportionality in sentencing Use of suspended sentences IPP, life or extended sentences for dangerous offenders
Legal Aid, Sentencing and Punishment of Offenders Act 2012Removed IPP Several modifications to CJA 2003
APPROACHES TO PUNISHING PERSISTENT OFFENDERS FLAT-RATE SENTENCING?
Prior record should be irrelevant, all sentencing should be proportionate to the specific offence at hand George Fletcher (1978): sentence should be measured by reference to the crime
Harmfulness and culpability of the current offence should determine the sentence Taking previous sentences into account would be punishing them twice for the same offence Based on just deserts principle: anything that takes into account other offences would seek to incapacitate and reduce risk rather than punish proportionately Example: illegal parking o?CUMULATIVE PRINCIPLE??
Barwick Lloyd Baker (1863): subsequent convictions should result in much harsher sentences, for the purposes of individual deterrence o "if you tell a man clearly what will be the punishment of a crime before he commits it, there can be no injustice in inflicting it" o ISSUE: does not account for the fact that some offences are more minor and due to weakness/poverty rather than wickedness so are not as easily deterred by stricter sentencing Rationale: individual deterrence, incapacitation or individual prevention ISSUES: doesn't take into account the fact that most recidivists are petty offenders o Many may offend due to weakness/poverty rather than logical thinking o Other forms of punishment might be more effective in reducing crime ISSUE: repeated imprisonment might be counter-productive o Statistics show that reconviction rates "increase sharply according to the number of previous convictions"
? Possible that those with more convictions are habitual criminals who are likely to be reconvicted anyway?
o Desensitize offenders to prison
? Exposes them to influences which contribute to further offending o Dove-Wilson Committee (1932): cumulative principle may "cause progressive deterioration by habituating offenders to prison conditions which weaken rather than strengthen their characters"
PROGRESSIVE LOSS OF MITIGATION-First offenders should receive a reduction of sentence, which is gradually lost with subsequent offences o Differs from cumulative principle in that there is a (proportionate) limit for the maximum sentence o So repeat offending doesn't function as an aggravating factor to increase the sentence beyond proportionality and just deserts Andrew von Hirsch: o Initial discount is based on recognition of human fallibility o Subsequent loss of mitigation is due to offender's failure to accept the second chance and respond sufficiently to censure ISSUE: even a first offender might have planned the offence, so he would not be deserving of the automatic mitigating factor ISSUE: recidivism may not be a result of rational choice (which could therefore take into account responses to censure) but other factors o E.g. associating with certain groups of people, drug use, personal circumstances o Desistance from crime might be a result of a positive change in circumstances rather than punishment
-Council of Europe's recommendations o Previous convictions should not "be used mechanically as a factor working against the defendant" o Even if criminal record considered, sentence should be proportionate to current offence In practice: might be theoretically approved by the courts, but actual sentences are often disproportionate for repeat offenders (more akin to cumulative or flatrate)
BAILEY (1988) 10 CR APP R (S) 321-
Offender with "appalling" criminal record sentenced for theft of nightdresses from shop and theft of cod fillets from hospital freezer CA: reduced sentence from 3 and a half years to 18 months Stocker LJ: "convicted criminal's past record forms part of the matrix upon which he falls to be sentenced" but "the sentence imposed must be related to the gravity of the offences in relation to which it is imposed" ISSUE (Ashworth): even though they recognised the need for proportionality, 15 months' imprisonment for theft where the goods were recovered is still high o Courts claim to approve of this theory, but fail to actually apply it
RECIDIVIST PREMIUM?Julian Roberts: repeat offenders are like those who plan their offence o Both are "worthy of a greater degree of moral reprobation to reflect their enhanced level of culpability" so a higher sentence would be proportionate Unlike cumulative principle, the increase would not be exponential o The greatest increase should be "between a first offender and an individual with two priors", with a proportionate ceiling Youngjae Lee: formal censure from first conviction should create an "obligation on the offender to reflect on the conviction and then to make efforts to conform to the law"
Identifying persistent offenders o Most of these persistent offenders are those that commit minor, petty offences o Would resources be better spent on serious offenders rather than merely persistent ones?
o Home Office framework document (2001): most persistent offenders share a similar profile and background
? Drug problems, lack of education, unemployed Carter Report (2003) o 40% of persistent offenders stop offending each year without official intervention, but are then replaced by new persistent offenders o "historically, incapacitation is only associated with small falls in crime" Halliday Report (2001): English law should be clarified o "persistent criminality justifies the more intensive efforts to reform and rehabilitate" through "more intrusive and punitive sentence" o Suggests that previous convictions are "a strong indicator of risks of reoffending" ISSUE: is prison the best way to deal with persistent offenders?
Most are not making a conscious choice to defy State sanctions Since most have drug problems, would rehabilitative measures not be more effective?
? Most offenders stop offending because they find employment, help with substance abuse or stable relationships, not because of long incarceration
CRIMINAL JUSTICE ACT 2003--S143(2): courts "must treat each previous conviction as an aggravating factor" if it considers that it "can be reasonably so treated having regard" to the nature and relevance of the offence as well as time elapsed o Clearly the convictions must be considered in the first place to determine if they are relevant, so Courts don't actually have the discretion to entirely ignore them Halliday (2001): "the key point is whether the previous offences justify a more severe view" o Not vital that they belong to the same category of offences o Seriousness of the prior offence is important, in "whether there is a continuing course of criminal conduct" o ISSUE (Ashworth): this is not what the Act entails, since that is concerned with the relevance (which on ordinary construction presumably means subject matter similarity) rather than seriousness Roberts (2008): there seems to be an emphasis on "specialists" o Small Crown Court survey suggests that sentences are increased if past convictions disclose an "escalating pattern of offending" Ashworth: requiring courts to consider time elapsed applies the principle of decay o Offender might deserve a concession where the last offence was a long time ago, if the present offence is viewed as "out-of-character" in his new behaviour or the gap in convictions indicates lower likelihood of reconviction o "unnecessarily harsh if a person has to bear the burden of previous convictions indefinitely" ISSUE (Ashworth): s143 doesn't refer to proportionality, seems to support a cumulative approach to sentencing o Although Halliday suggested that the effect of previous convictions would be "subject to outer limits resulting from the seriousness of the current offences", that is not laid out in the Act o If the Court is required to take into account past convictions as aggravating factors, possible that community sentences might not be available to reoffenders (especially those with many (20-30) previous convictions)
? Even if a community sentence might be more effective in preventing reoffending (e.g. if petty offences are done in order to feed a drug habit, it might be better to tackle the underlying drug problem)
? Number of offenders with multiple previous offenders has increased significantly from 2000-2007
? SAP found that for convictions of theft from a shop, only 5% of those with information on past convictions had no prior convictions (2008)
? The rationale for punishing "professional" criminals may not be as applicable where the previous offences are opportunistic (e.g.
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