Applying desert principles to community sentences: Lessons from two Criminal Justice Acts

Criminal Law Review

Volumn 1998, Issue 6, 1998, Pages 381-391

  Rex, Sue ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 3042877790     PISSN: 0011135X     EISSN: None     Source Type: Journal    
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References (55)

1. The author would like to thank Professor Anthony Bottoms, whose idea it was to compare age-related sentencing trends, and Professor Andrew von Hirsch for comments on an earlier version of this article.
2. As opposed to the fine and discharge, which are not restrictive of offenders' personal freedom.
3. Home Office, Crime, Justice and Protecting the Public, Cmnd. 965 (1990, HMSO), para. 4.1.
4. ibid. paras 4.4-4.5.
5. ibid. para. 9.2.
6. See Pease, "Community Service Orders" in Tonry and Morris (eds), Crime and Justice: An Annual Review of Research: Vol. 6 (1985, University of Chicago Press), who found that only about 50 per cent of those receiving community service in the experimental schemes would otherwise have received custody; and Bottoms, "Limiting Prison Use in England and Wales" (1987) 26 Howard Journal 177-202.
7. See Pease, "Community Service Orders" in Tonry and Morris (eds), Crime and Justice: An Annual Review of Research: Vol. 6 (1985, University of Chicago Press), who found that only about 50 per cent of those receiving community service in the experimental schemes would otherwise have received custody; and Bottoms, "Limiting Prison Use in England and Wales" (1987) 26 Howard Journal 177-202.
8. op. cit., para. 4.16.
9. op. cit., para. 9.7.
10. Home Office, Punishment, Custody and the Community, Cmnd. 424 (1988, HMSO).
11. May, Probation, Politics, Policy and Practice (1991, OUP).
12. A prevailing sense of optimism captured in the title of the conference proceedings, Shaw and Haines, The Criminal Justice System, a Central Role for the Probation Service (1989, University of Cambridge).
13. A requirement perceptively noted by McWilliams, "Probation Pragmatism and Policy" (1987) 26 Howard Journal 97-121.
14. Home Office (1988).
15. Home Office (1990) op. cit., para. 2.3.
16. The community sentence band is contained within the requirement for the offence to be "serious enough" to warrant a community sentence (s.6(1)), and the restriction upon the use of custody to offence(s) that are "so serious" that no other penalty can be justified (s.1(2)).
17. Consistent with their hypothesis that desert addressed the severity of the penalty, not its particular form, Wasik and von Hirsch ("Non-Custodial Penalties and the Principles of Desert" [1988] Crim.L.R. 555-571) suggested that, provided the gravity of the offence determined how severely the offender was punished, it was possible to base the choice between two or more equally "deserved" sanctions on other grounds, e.g. crime prevention. Bottoms ("The concept of Intermediate Sanctions and its Relevance for the Probation Service", in Shaw and Haines (1989), op. cit.) suggested that there was no need to prescribe a penalty as standard within each band and that the fine could play a lesser role than envisaged by Wasik and von Hirsch, for whom a financial penalty would be presumptive.
18. Consistent with their hypothesis that desert addressed the severity of the penalty, not its particular form, Wasik and von Hirsch ("Non-Custodial Penalties and the Principles of Desert" [1988] Crim.L.R. 555-571) suggested that, provided the gravity of the offence determined how severely the offender was punished, it was possible to base the choice between two or more equally "deserved" sanctions on other grounds, e.g. crime prevention. Bottoms ("The concept of Intermediate Sanctions and its Relevance for the Probation Service", in Shaw and Haines (1989), op. cit.) suggested that there was no need to prescribe a penalty as standard within each band and that the fine could play a lesser role than envisaged by Wasik and von Hirsch, for whom a financial penalty would be presumptive.
19. Sentencing and Criminal Justice (1992, Weidenfield and Nicholson) p.254.
20. [1994] Crim.L.R. 612, where an offence of theft in breach of trust from which an employee had gained £4 and stood to gain a further £13 had she not been caught was upheld by the Court of Appeal as "so serious" that custody was inevitable.
21. Recognising Elephants: The Problem of the Custody Threshold, [1997] Crim.L.R. 187-200.
22. Detailed Guides on the Criminal Justice Act 1991 (1992, Home Office).
23. Von Hirsch, Censure and Sanctions (1993, Clarendon Press), p.68.
24. The Question of Parole: Retention, Reform or Abolition? (1979, Ballinger Publishing Company).
25. Between Prison and Probation (1990, Oxford University Press), who regard von Hirsch's requirement that the gravity of the offence should determine the severity of the penal response as unrealistic and prefer Morris' view that retributive considerations can only guide on unreservedly lenient and severe punishment.
26. See Wasik and Taylor, Blackstone's Guide to the Criminal Justice Act 1991 (1991, Blackstone Press).
27. Indeed, Lord Taylor C.J. accepted in Bexley (1993) 14 Cr. App. R. (S.)462 that the original s.29(1) embodied the principle established in earlier case law, but subsequently appeared to contradict himself in a speech to the Scottish Law Society on March 21, 1993 (see Ashworth, Sentencing and Criminal Justice, (2nd ed, 1995, Butterworths), pp.160-161).
28. Indeed, Lord Taylor C.J. accepted in Bexley (1993) 14 Cr. App. R. (S.)462 that the original s.29(1) embodied the principle established in earlier case law, but subsequently appeared to contradict himself in a speech to the Scottish Law Society on March 21, 1993 (see Ashworth, Sentencing and Criminal Justice, (2nd ed, 1995, Butterworths), pp.160-161).
29. Words which Wasik and von Hirsch ("Section 29 Revised: Previous Convictions in Sentencing" [1994] Crim.L.R. 409-418) argue retain seriousness as the key concept; therefore, the new s.29(1) should not be interpreted as representing an abandonment of the principle of progressive loss of mitigation. In the absence of guidance from the Court of Appeal, this is not how sentencers seem to have read the new provision.
30. Home Office et al., National Standards for the Supervision of Offenders in the Community (1995, HMSO).
31. Home Office, Strengthening Punishment in the Community, Cmnd. 2780 (1995, HMSO).
32. ibid. para. 4.7.
33. ibid. para. 4.28.
34. Home Office, Protecting the Public, Cmnd. 3196 (1996, HMSO), para. 7.18.
35. For informed commentaries on this phenomenon, see Bottoms, "The Philosophy and Politics of Punishment and Sentencing", in Clarkson and Morgan (eds), The Politics of Sentencing Reform (1995, Clarendon Press); Faulkner, Darkness and Light: Justice, Crime and Management for Today (1996, Howard League); and Garland, "The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society" (1996) 36 British Journal of Criminology 445-471.
36. For informed commentaries on this phenomenon, see Bottoms, "The Philosophy and Politics of Punishment and Sentencing", in Clarkson and Morgan (eds), The Politics of Sentencing Reform (1995, Clarendon Press); Faulkner, Darkness and Light: Justice, Crime and Management for Today (1996, Howard League); and Garland, "The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society" (1996) 36 British Journal of Criminology 445-471.
37. For informed commentaries on this phenomenon, see Bottoms, "The Philosophy and Politics of Punishment and Sentencing", in Clarkson and Morgan (eds), The Politics of Sentencing Reform (1995, Clarendon Press); Faulkner, Darkness and Light: Justice, Crime and Management for Today (1996, Howard League); and Garland, "The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society" (1996) 36 British Journal of Criminology 445-471.
38. For example, the initial appointment between probationer and probation officer was "in all cases" (rather than, as in the earlier version "whenever possible") to take place within five working days of the order being made; the probationer "should" (rather than "where practical and appropriate") attend a minimum of 12 appointments in the first three months of a probation order; and breach procedures were to be stricter for all community orders.
39. Summarised by McGuire, What Works: Reducing Reoffending (1995, John Wiley and Sons).
40. Home Office (1995) op. cit., para. 1.2.
41. See Home Office (1996), op. cit.
42. Home Office, No More Excuses - A New Approach to Tackling Youth Crime in England and Wales, Cmnd. 3809 (1997, HMSO), para. 6.11.
43. Rumgay, "Seriousness, Sentencing and Social Work" (1993) Justice of the Peace 454-456.
44. Downing, "Criminal Justice Pre and Post 1992: What Future for the Probation Order: The Results of a Local Study" (1995) 34 Howard Journal 136-151.
45. (1997) op cit.
46. O'Mahony and Haines, An Evaluation of the Introduction and Operation of the Youth Court (1996, Home Office Research Study No. 152).
47. Home Office, "Monitoring of the Criminal Justice Acts 1991 and 1993: Results from a Special Data Collection Exercise" Statistical Bulletin, 20/94, which found the increase in the proportionate use of custody towards the end of 1993 in participating courts to be sharpest for adult male property offenders, particularly for those with between six and 20 previous convictions.
48. von Hirsch, "The Ethics of Community-Based Sanctions" (1990) 36 Crime and Delinquency 162-173.
49. Bottoms, "The Place of the Probation Service in the Criminal Justice System", in Central Council of Probation Committees (eds), The Madingley Papers II (1989, University of Cambridge Board of Extra-Mural Studies), p.43.
50. Rumgay (1993), op. cit.
51. H.M. Inspectorate of Probation, The Criminal Justice Act 1991 Inspection (1993, Home Office).
52. Mair, "Community Penalties and the Probation Service", in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (2nd Ed., 1997, Clarendon Press).
53. (1997), op. cit.
54. As argued by Ashworth et al. "Bespoke Tailoring Won't Suit Community Penalties" (1995) New Law Journal 970-972.
55. Rex and von Hirsch, "Community Orders and the Assessment of Punishment's Severity" (forthcoming) Federal Sentencing Reports.