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CSPS Supervision 3 - The Sentencing Framework (and Risk, Dangerousness & Non-commensurate Sentencing) I. SENTENCING Easton and Piper - Structuring sentencing (2016)
Justice and discretion Who decides what is 'fair'?
? In the 21st C, Ashworth (2013) argues that there has been a 'struggle for supremacy in sentencing'. P37
? The freedom of the judge or magistrate to choose a particular sentence has been reduced over the past two decades such that judicial discretion has been restricted.
? Despite opposition from the judiciary and the magistry, the Sentencing Advisory Panel set up in 1998 was joined by the Sentencing Guidelines Council, and then both were replaced by the Sentencing Council.
? For most of 20th C, sentencers had considerable freedom to choose a penalty. o Ashworth and Roberts (2013) argue that the change has been driven not only by the desire for greater consistency at the sentencing stage but also by the 'need to achieve greater accuracy in projections of the number of prisoners'. o Young and King (2013) argue that the guidelines 'provide a more sophisticated range of mechanisms through which Parliament can influence sentencing practice and they increase transparency in sentencing policy and practice.
? What is construed as fair or just depends on the changing ideas of social justice and on the theoretical approach which is taken to understanding the notion of punishment itself. P38 The discretion continuum
? At one extreme, sentencing is unjust because there are no constraints whatsoever on the sentence, who can then make decisions based on personal prejudices and whims.
? At the other end of the spectrum is the sentence who has no discretion whatsoever because the rules and principles are so tightly drawn, with all potential factors accounted for, that the sentence is simply the technician who feeds in the data and reads off the answer.
? The expectation is that the rule of law will be upheld because the citizen must have confidence in the law and institutions of the state. o Salter and Twist (2007): 'Discretionary decision making is condemned as a cavalier disregard for the imperative' and threatens to undermine the 'moral' allegiance of the citizen to the criminal justice system. P39 Constitutional issues
? In democratic states neither the professional nor the lay judge can do just what they might want to do when sentencing.
?There are rules that guide them in the exercise of their discretion. But the discretion of the sentencing judge has been described as 'the central principle of the English sentencing system' (Thomas 2002).
? Democratic legitimacy requires that Parliament has a role in determining the sentencing framework.
? In the UK we have the paradoxical situation where judges and magistrates have historically been provided with an increasingly wide choice of available penalties while, at the same time, the trend has been to circumscribe their discretion. Discretion as 'bad'
? Parliamentary anxiety about the differential treatment of persistent but minor offenders was one of the factors leading to the creation of the Court of Criminal Appeal in 1907.
? By end of 20th C, a major concern arising from research results was that there appear to be geographic variations in custodial sentencing in England and Wales. o Home Office research from 2003-2006 showed that average custodial sentence lengths and the use of life and indeterminate sentences for public protection varied significantly across the 42 Criminal Justice Areas in England and Wales. P40
? Concern is that the exercise of discretion is not being limited to the 'relevant idiosyncrasies' of a case.
? Does discretion allow 'space' for discrimination - personal or institutional - to occur?
o Focus of research has been the custodial sentence and the fact that ethnic minorities are over-represented in prison. o Hedderman (1990) suggests that 'women may receive more lenient sentences than men because they are more nervous and act more respectfully and deferentially to the Bench'.
? Wise discretion criticised as diminishing possibility of accurately predicting sentence outcome. o Sanctions cannot give a clear deterrent message to past or potential offenders and solicitors are unable to advice their clients effectively. Criticism: discretion is 'good'
? Writing in the context of prosecutorial discretion in the Health and Safety Inspectorate, Hawkins has argued that 'systems of formal rules, for all their appearance of precision and specificity, work in only imprecise ways. Indeed, precision and consistent practice are not necessarily assisted by the drafting of ever more elaborate schemes of rules.' P41
? Main arguments in favour of more sentencing discretion: o Reduced discretion results in a decreased possibility that justice can be tailored to the specific circumstances of a case. o Research on practice in jurisdictions which have had mandatory sentencing for some time would suggest that its utilitarian aims cannot be delivered. o Judges and other legal professional may seek ways to circumvent mandatory provisions.
The lack of discretion at the sentencing stage could encourage more 'not guilty' pleas.
? Accused might consider that more is at stake if the likely penalty is severe and so choose to risk a trial. o Insertion of specific sentences into an otherwise discretionbased sentencing system will skew the 'tariff' which in practice determines a scale of severity-related punishments. o Lack of discretion may lead to constitutional or human rights violations.
? But political imperatives and symbolic goals may outweigh the money 'wasted' or even the likelihood of a rights challenge.
? Mandatory sentences have given clear messages to the electorate that Parliament is ensuring that sentencers will be sufficiently tough to protect them. Sentencing choices: contradictory trends
? Garland (1985) argues that 1895-1914 was crucial period in history of modern penality, with the number of sanctions almost doubling in this period. o Legislation added probation orders, preventive detention and detention of those whom we would now call mentally disordered offenders. o Impetus was general social, economic and political anxiety about the 'underclass' and a belief that a mixture of penal and social welfare reforms could 'solve' the problems.
? Between 1945 and 1973, two 'bursts' of sentencing legislation took place. o Criminal Justice Act 1948 made use of fines more widely available and introduced new sentences with a focus on the offender. o In 1985 another spate of legislation saw abolition of death penalty and addition of suspended prison sentences, absolute and conditional discharges, community service orders and compensation orders. o Social and economic optimism where there was strong belief in the power of science, including social work to solve the problem of crime.
? From 1982-91 there was a less favourable economic climate and the New Right approach developed as a political response. o For sentencers, meant greater focus on offender culpability, evidenced in establishment of 'just deserts' as the main sentencing rationale. o Entailed more punishment for those who were not behaving as responsible citizens, evidenced in increases in maximum terms of imprisonment and greater availability of restrictive conditions for supervision and probation orders. o Increasing expenditure on prisons led to reduced judicial discretion by imposition of statutory criteria to limit the use of custodial penalties, first for minors and then for all offenders.
? Period since 1993 more difficult. o New penological thinking and development of the public's punitiveness encouraged 'tougher' sentencing with a reduced discretion in relation to offenders perceived to be dangerous, o
particularly in relation to the new sentences introduced by Criminal Justice Act 2003. o Several Acts increased statutory maxima for custodial sentences for various offences. o On the other hand, greater focus on community sentences and restorative justice with a corresponding wider range of options for the courts.
? Crime and Disorder Act 1998 introduced new youth court orders and extended post-custody supervision. o Sentencing legislation consolidated in Powers of Criminal Courts (Sentencing) Act 2000. P43 o Domestic Violence, Crime and Victims Act 2004 signified increasing policy emphasis on victims. o Since 1993, legislation to structure sentencing has evidenced 'traditional' constraints, such as availability of penalties and restrictions on their use, but also new ways of constraining sentencing discretion, notably statutory 'hurdles' to the imposition of certain penalties. Constraining the sentence The availability and use of penalties
? Judges and magistrates can only impose a penalty which is legally available in the jurisdiction.
? After implementation of CJA 2003, following penalties available to a court: o Imprisonment/detention, suspended sentence; o Community orders; o Various ancillary orders including compensation order; o Fine; o Discharge.
? Judges and magistrates constrained with respect to the amount of punishment they can order. o Restrictions on upper amount of sentence that can be imposed, whether in terms of sentence length for custodial and community penalties or for the amount of a financial penalty. o "Maximum penalties do not necessarily constitute a wellthought our and coherent system". P44
? Advisory Council on the Penal System says that they have grown up as a result of a 'historical accident'. Limits on sentencing powers of magistrates' courts
? Lower courts more restricted in their sentencing powers than the Crown Court. Age categories
? Certain penalties may not be available for children and young people or for adults.
? E.g. reparation orders currently available only for those under 18 (PCCSA 2000, s.73). Financial and organisational factors
? These factors influence either the amount of discretion sentencing courts can exercise or the outcome post-sentencing. Allocation of resources
The setting and ring-fencing of budgets for the National Probation Service (NPS) and the outsourcing of services affects the content and availability of community penalties and the custodial experience. Administrative and executive powers
? Traditionally, Home Secretary and bodies such as Parole Board have had powers which can affect length of custodial sentences served. P45
? Recently, ECHR has affected operation of these powers and proved to be a constraint on their use. Guidance and training
? Home Office is involved in developing and circulating guidance generally on policy and professional practice.
? It has been accepted since at least the report of the Streatfeild Committee in 1961 that judges require training in the principles and approaches desired by Parliament and laid down in guidance. Other factors
? Background to many of these constraints is the contentious issue of the relationship between public opinion, the media and sentencing policy. The policy context for new constraints
? Increasing concern of governments in 1990s was to enhance legitimacy of the sentencing system.
? Halliday Report: "Sentencing contributes to good order in society. The public can legitimately be expected to uphold and observe the law, and not to take it into their own hands. To achieve this there must be confidence in the justice of the outcomes, as well as in their effectiveness". P46
? Policy based on these concerns encouraged a reduction in the use of custody for the 'normal' offender while allowing its continued or greater use for particular classes of offender where other policy imperatives were deemed politically expedient.
? Four developments in 1990s to structure sentencing discretion: o Incorporation of new 'hurdles' for the imposition of custodial and community sentences. o Introduction of new mandatory sentences. o Prioritisation of a sentencing rationale. o Establishment of new bodies to produce guidance on sentencing policy. Imposing hurdles
? CJA 1991 introduced a provision whereby custodial and community sentences could be imposed only if the offence reached a particular level of seriousness so that the statutory hurdle could be surmounted. Using mandatory sentences
? Parliamentary 'encouragement' of the use of particular penalties by sentencers was not unique to the 1990s. P47
? Passing of s.1-4 Crime (Sentences) Act 1997 signalled introduction into English sentencing law of a more intrusive tool being used in other jurisdictions.
? How mandatory such provisions are in practice depends on how widely drafted the 'escape clause' (Ashworth's words) is.
? Give indications of the 'proper range' of sentences and the interpretation of sentencing legislation, and list particular factors as legitimately aggravating or mitigating.
? A principle established by CoA guidance in 1980s is enshrined in CJA 2003 as the 'totality principle' - aggregate of consecutive sentences should not be out of proportion to the overall seriousness of the offending and so the court can legitimately mitigate the sentence of a multiple offender.
? Wasik and Turner (1992) argue that in relation to the lower courts there is 'scant authority to assist magistrates in their sentencing jurisdiction', appellate guidance form the Crown Court is 'generally cursory' and Divisional Court interfering with outcomes only exceptionally. o Magistrates' Association produced its own guidance which have since been overseen and published by the new sentencing bodies - Sentencing Advisory panel published definitive version in 2008. The development of guidelines
? Traditionally guidance was purely judicial through CoA decisions, but since 1998 guidance has been issued by new bodies specifically set up to do so. The Sentencing Advisory Panel
? S.80-81 CDA 1998 established a Sentencing Advisory Panel with the function of making proposals for new guidelines which the CoA could issue when a suitable case to do so came before the court.
? Within first two years the Panel's advice on the importation of drugs, racially aggravated offences and handling stolen goods were accepted and incorporated in appellate guidelines.
? Sentencing Guidelines Council established to take further the process of providing systematic guidance to the courts.
? SAP continued to produce useful advice based on research and consultation until its demise in 2010. The Sentencing Guidelines Council
? SGC effectively took over CoA's responsibility for issuing guidelines because of its statutory duty to publish guidelines and consult with the government.
? Secretary of State could order Council to review or produce particular guidelines and the Act imposed the aim on the SGC of having regard to 'the need to promote consistency in sentencing'.
? Previous duty of sentencers found in s.172 CJA 2003, requiring judges and magistrates to 'have regard' to the guidance issued. The Sentencing Council Functions
? Coroners and Justice Act 2009 mandated the establishment of a Sentencing Council with specified functions.
? Council has responsibility for: o Developing sentencing guidelines and monitoring their use; o Assessing the impact of guidelines on sentencing practice. o Promoting awareness amongst public regarding realities of sentencing and publishing information regarding sentencing practice in Magistrates' and the Crown Court.
Council must: o Consider the impact of sentencing decisions on victims. o Monitor the application of the guidelines. o Play a greater part in promoting and understanding sentencing and the criminal justice system. Guideline formats
? Standard two-step format for establishing and adjusting the starting point for a sentence, together with subsequent steps which include the reduction for a guilty plea and the imposition of ancillary orders. Departure test
? Sentencing Commission Working Group dealt with 'departure test', meaning the criterion by which the sentence can justify departing from the duty to implement the relevant guidance.
? Coroners and Justice Act 2009, s.125: o Every court:
? Must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and
? Must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function unless the court is satisfied that it would be contrary to the interests of justice to do so.
? New mandatory requirement in regard to following guidelines and the duty to explain the sentence in detail amount to 'significant steps in the direction of transparency' (Ashworth 2010). Retributivist rationales The concept of the individual and the state
? On a retributivist theory a wrong action should be met by a sanction appropriate to the action and deserved by the offender, so it is argued that punishment should be given in response to tis being deserved; the penalty should be appropriate to the wrong action; the consequences of punishment are irrelevant.
? Retributivist or desert theory more protective of individuals' rights than the utilitarian approach which focuses on deterrence and rehabilitation.
? For Kant, the model of the individual is of a rational agent for whom law functions as an imperative, not coercively but because the individual recognises that law imposes duties and obligations. o Inherent autonomy of each person requires that all individuals, including offenders, should be accorded dignity and treated with respect. o An act which reduces the capacity to act rationally and autonomously would violate human dignity for Kant.
? Hegel rejected utilitarian view of the individual. o Critical of those who base their theories of punishment on threats and coercion, because this 'is to treat a man like a dog instead of with the respect and freedom due to him as a man'. P53 o Argues for an understanding of the individual through his social relations, and in doing so, paved the way for a new
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