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Volumn , Issue 2, 2008, Pages 105-120

Dangerous waters: Taking account of impact in sentencing

Author keywords

Judicial decision making; Mitigation; Punishment; Retribution; Sentencing

Indexed keywords


EID: 39149103389     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (21)

References (84)
  • 1
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    • I am grateful to the reviewers and to Christine Piper for their comments on this article. 2 B. Hudson, Penal Policy and Social Justice, (London: Macmillan, 1993);
    • I am grateful to the reviewers and to Christine Piper for their comments on this article. 2 B. Hudson, Penal Policy and Social Justice, (London: Macmillan, 1993);
  • 2
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    • Mitigation for Socially Deprived Offenders in A. von Hirsch and A. Ashworth (eds), Principled Sentencing, Readings on Theory and Policy (Oxford: Hart Publishing, 1998), pp.205-208.
    • "Mitigation for Socially Deprived Offenders" in A. von Hirsch and A. Ashworth (eds), Principled Sentencing, Readings on Theory and Policy (Oxford: Hart Publishing, 1998), pp.205-208.
  • 3
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    • Proportionality, Parsimony and Interchangeability of Punishments
    • R.A. Duff et al eds, Manchester: Manchester University Press
    • M. Tonry, "Proportionality, Parsimony and Interchangeability of Punishments" in R.A. Duff et al (eds), Penal Theory and Practice (Manchester: Manchester University Press, 1994), pp.59-84;
    • (1994) Penal Theory and Practice , pp. 59-84
    • Tonry, M.1
  • 4
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    • Oxford: Oxford University Press
    • Sentencing Matters (Oxford: Oxford University Press, 1996).
    • (1996) Sentencing Matters
  • 6
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    • Sentencing, Equal Treatment and the Impact of Sanctions
    • However, in an earlier paper, Ashworth and Player argue that the courts should reduce sentences to allow for serious medical conditions. See, A. Ashworth and M. Wasik eds, Oxford: Clarendon
    • However, in an earlier paper, Ashworth and Player argue that the courts should reduce sentences to allow for serious medical conditions. See A. Ashworth and E. Player, "Sentencing, Equal Treatment and the Impact of Sanctions" in A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (Oxford: Clarendon, 1998), pp.251-272.
    • (1998) Fundamentals of Sentencing Theory , pp. 251-272
    • Ashworth, A.1    Player, E.2
  • 7
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    • C. Piper, Should Impact Constitute Mitigation? Structured Discretion Versus Mercy? [2007] Crim. L.R. 141.
    • C. Piper, "Should Impact Constitute Mitigation? Structured Discretion Versus Mercy?" [2007] Crim. L.R. 141.
  • 8
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    • Some of the problems with relying on mercy were illustrated by its use in relation to the death penalty in the United Kingdom. See Royal Commission on Capital Punishment Report London: HMSO, 1953, Cmnd.8932
    • Some of the problems with relying on mercy were illustrated by its use in relation to the death penalty in the United Kingdom. See Royal Commission on Capital Punishment Report (London: HMSO, 1953). Cmnd.8932.
  • 10
    • 39149105886 scopus 로고    scopus 로고
    • A reduction in the number of serious assaults is a key performance target. But the target for 2006-2007 was not met. See HM Prison Service, Annual Report and Accounts 2006-2007, (London: HM Prison Service, July 2007), p.10. It is now reviewing this issue as part of its violence reduction strategy. See PSO 2750, Violence Reduction for current procedures.
    • A reduction in the number of serious assaults is a key performance target. But the target for 2006-2007 was not met. See HM Prison Service, Annual Report and Accounts 2006-2007, (London: HM Prison Service, July 2007), p.10. It is now reviewing this issue as part of its violence reduction strategy. See PSO 2750, Violence Reduction for current procedures.
  • 11
    • 39149103641 scopus 로고    scopus 로고
    • Prison Rule 45 allows a prisoner to be removed from association with other prisoners if it is in the prisoner's own interest. Further attention could be given to reducing levels of violence, so that segregation is not necessary, or alternatively, to improving the conditions of those held in segregated conditions. In the US, for example, a Commission has been set up to address these problems. See J.J. Gibbons and N. de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America's Prisons (New York: Vera Institute of Justice, 2006).
    • Prison Rule 45 allows a prisoner to be removed from association with other prisoners if it is in the prisoner's own interest. Further attention could be given to reducing levels of violence, so that segregation is not necessary, or alternatively, to improving the conditions of those held in segregated conditions. In the US, for example, a Commission has been set up to address these problems. See J.J. Gibbons and N. de B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety and Abuse in America's Prisons (New York: Vera Institute of Justice, 2006).
  • 12
    • 39149144259 scopus 로고    scopus 로고
    • See recommendations in, London: Stationery Office
    • See recommendations in Report of the Zahid Mubarek Inquiry (London: Stationery Office, 2006).
    • (2006) Report of the Zahid Mubarek Inquiry
  • 13
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    • Proportionate Sentences for Juveniles: How Different than for Adults?
    • A. von Hirsch, "Proportionate Sentences for Juveniles: How Different than for Adults?" (2001) 3 Punishment and Society 221.
    • (2001) Punishment and Society , vol.3 , pp. 221
    • von Hirsch, A.1
  • 19
    • 39149145405 scopus 로고    scopus 로고
    • Sentencing Young Offenders
    • A. Ashworth and M. Wasik eds, Oxford: Clarendon
    • L. Zedner, "Sentencing Young Offenders" in A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (Oxford: Clarendon, 1998), pp.165-186.
    • (1998) Fundamentals of Sentencing Theory , pp. 165-186
    • Zedner, L.1
  • 20
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    • Penal Communications: Recent Work in the Philosophy of Punishment
    • 16 at
    • R. A. Duff, "Penal Communications: Recent Work in the Philosophy of Punishment" (1996) 20 Crime and Justice 16 at 62,
    • (1996) Crime and Justice , vol.20 , pp. 62
    • Duff, R.A.1
  • 21
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    • cited in Zedner, Sentencing Young Offenders in Ashworth and Wasik (eds), Fundamentals of Sentencing Theory (1998), pp.173-174.
    • cited in Zedner, "Sentencing Young Offenders" in Ashworth and Wasik (eds), Fundamentals of Sentencing Theory (1998), pp.173-174.
  • 23
    • 39149121773 scopus 로고    scopus 로고
    • For example, 48,279 Basic Skills Awards and 145,053 Work Skills Awards were achieved in 2005-2006. HM Prison Service, Annual Report, 2005-06 (London: HM Prison Service).
    • For example, 48,279 Basic Skills Awards and 145,053 Work Skills Awards were achieved in 2005-2006. HM Prison Service, Annual Report, 2005-06 (London: HM Prison Service).
  • 24
    • 39149113021 scopus 로고    scopus 로고
    • Although he has now been transferred from high security Belmarsh to Norwich prison and a further application for release on compassionate grounds has been made
    • Although he has now been transferred from high security Belmarsh to Norwich prison and a further application for release on compassionate grounds has been made.
  • 25
    • 39149145759 scopus 로고    scopus 로고
    • For example, Anton Gecas who argued he was too ill to travel to Lithuania in 2001 to be tried for participation in war crimes and genocide, but died before the question could be resolved.
    • For example, Anton Gecas who argued he was too ill to travel to Lithuania in 2001 to be tried for participation in war crimes and genocide, but died before the question could be resolved.
  • 26
    • 39149130605 scopus 로고    scopus 로고
    • The majority of older male prisoners in the study of older prisoners conducted by HM Chief Inspector of Prisons were serving sentences for sex offences. HM Chief Inspector of Prisons, No Problems, Old and Quiet: Older Prisoners in England and Wales London, Stationery Office, 2004
    • The majority of older male prisoners in the study of older prisoners conducted by HM Chief Inspector of Prisons were serving sentences for sex offences. HM Chief Inspector of Prisons, "No Problems, Old and Quiet": Older Prisoners in England and Wales (London, Stationery Office, 2004).
  • 27
    • 39149118253 scopus 로고    scopus 로고
    • In Sweden, in contrast, old age and ill health are treated as grounds for compassion in the Penal Code
    • In Sweden, in contrast, old age and ill health are treated as grounds for compassion in the Penal Code.
  • 28
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    • S. Fazel et al found that 85% of the elderly (over 60) male prisoners in their study did have higher rates of illness than younger prisoners and than a similar age group outside prison. They interviewed 203 prisoners from prisons in England and Wales. S. Fazel et al, Health of Elderly Male Prisoners: Worse than the General Population, Worse than Younger(2001) 30 Age and Ageing 403;
    • S. Fazel et al found that 85% of the elderly (over 60) male prisoners in their study did have higher rates of illness than younger prisoners and than a similar age group outside prison. They interviewed 203 prisoners from prisons in England and Wales. S. Fazel et al, "Health of Elderly Male Prisoners: Worse than the General Population, Worse than Younger"(2001) 30 Age and Ageing 403;
  • 29
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    • see also, London, Prison Reform Trust
    • see also K. Howse, Growing Old in Prison (London, Prison Reform Trust, 2003)
    • (2003) Growing Old in Prison
    • Howse, K.1
  • 31
    • 39149095186 scopus 로고    scopus 로고
    • Older women prisoners also suffer higher rates of ill health than younger prisoners or older women outside prison. See A. Wahidin, Older Women in the Criminal Justice System (London: Jessica Kingsley, 2004);
    • Older women prisoners also suffer higher rates of ill health than younger prisoners or older women outside prison. See A. Wahidin, Older Women in the Criminal Justice System (London: Jessica Kingsley, 2004);
  • 34
    • 39149133890 scopus 로고    scopus 로고
    • If it is a minor offence and the person is severely or terminally ill, the CPS Code will take account of this: if the defendant was elderly at the time of the offence or suffering from significant mental or physical ill health, this may favour not proceeding, unless the offence is serious or there is a real possibility that it may be repeated (para.5A(10)(g)). However, a decision not to proceed may raise its own problems, for example, as Williams found, decisions not to prosecute people with learning disabilities was problematic as many of the victims also had learning disabilities and were left unprotected. See C. Williams, Invisible Victims: Crime and Abuse Against People with Learning Disabilities (London: Jessica Kingsley, 1995).
    • If it is a minor offence and the person is severely or terminally ill, the CPS Code will take account of this: if the defendant was elderly at the time of the offence or suffering from significant mental or physical ill health, this may favour not proceeding, unless the offence is serious or there is a real possibility that it may be repeated (para.5A(10)(g)). However, a decision not to proceed may raise its own problems, for example, as Williams found, decisions not to prosecute people with learning disabilities was problematic as many of the victims also had learning disabilities and were left unprotected. See C. Williams, Invisible Victims: Crime and Abuse Against People with Learning Disabilities (London: Jessica Kingsley, 1995).
  • 35
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    • Although he was subsequently transferred to hospital for an unrelated medical problem. See H. Ball, Justice in Mississippi: the Murder Trial of Edgar Ray Killen Lawrence: University of Kansas Press, 2006
    • Although he was subsequently transferred to hospital for an unrelated medical problem. See H. Ball, Justice in Mississippi: the Murder Trial of Edgar Ray Killen (Lawrence: University of Kansas Press, 2006).
  • 36
    • 39149111830 scopus 로고    scopus 로고
    • There have been significant changes recently with the transfer of health care to primary care trusts and it is hoped that the measures will improve quality of health care. However, the British Medical Association has expressed concern over the provision of health care in prisons. See BMA, Prison Medicine: A Crisis Waiting to Break London: British Medical Association, February 2004
    • There have been significant changes recently with the transfer of health care to primary care trusts and it is hoped that the measures will improve quality of health care. However, the British Medical Association has expressed concern over the provision of health care in prisons. See BMA, Prison Medicine: A Crisis Waiting to Break (London: British Medical Association, February 2004).
  • 37
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    • See Napier v Scottish Ministers, The Times, November 15, 2001; McGlinchey v United Kingdom [2003] 37 E.H.R.R. 41.
    • See Napier v Scottish Ministers, The Times, November 15, 2001; McGlinchey v United Kingdom [2003] 37 E.H.R.R. 41.
  • 38
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    • See DPP v Majewski [1977] A.C. 443. See also Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability, LC No.229 (1995);
    • See DPP v Majewski [1977] A.C. 443. See also Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability, LC No.229 (1995);
  • 39
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    • and G. Dingwall, Alcohol and Crime (Cullumpton: Willan, 2006).
    • and G. Dingwall, Alcohol and Crime (Cullumpton: Willan, 2006).
  • 40
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    • See, Cullompton: Willan
    • See C. Corbett, Car Crime (Cullompton: Willan, 2003).
    • (2003) Car Crime
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    • Mentally Disordered Offenders, Mental Health and Crime
    • See, M. Maguire, R. Morgan and R. Reiner (eds, 4th edn Oxford: Oxford University Press
    • See J. Peay, "Mentally Disordered Offenders, Mental Health and Crime" in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology, 4th edn (Oxford: Oxford University Press, 2007), pp.496-527.
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    • Mentally Disordered Offenders, Mental Health and Crime
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    • J. Peay, "Mentally Disordered Offenders, Mental Health and Crime" in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (2007), p.522.
    • (2007) The Oxford Handbook of Criminology , pp. 522
    • Peay, J.1
  • 45
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    • Research is now also being undertaken on the impact of custody on siblings of young offenders which has highlighted emotional distress and detrimental effects on school work. See J. Meek, When Big Brother Goes Inside: the Experience of Younger Siblings of Young Men in Prison London: Howard League, 2006
    • Research is now also being undertaken on the impact of custody on siblings of young offenders which has highlighted emotional distress and detrimental effects on school work. See J. Meek, When Big Brother Goes Inside: the Experience of Younger Siblings of Young Men in Prison (London: Howard League, 2006).
  • 47
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    • K. Gabel and D. Johnston eds, New York: Lexington Books
    • K. Gabel and D. Johnston (eds), Children of Incarcerated Parents (New York: Lexington Books, 1995);
    • (1995) Children of Incarcerated Parents
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    • Prisoners' Families
    • Y. Jewkes ed, Cullompton: Willan
    • A. Mills and H. Codd, "Prisoners' Families" in Y. Jewkes (ed.), Handbook on Prisons (Cullompton: Willan, 2007);
    • (2007) Handbook on Prisons
    • Mills, A.1    Codd, H.2
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    • November 2
    • Announced on November 2, 2006.
    • (2006)
    • Announced on1
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    • See Prison Service Order 0900 (para.6.4.2) which states that the allocation assessment should recognise that there are significant factors which influence the prisoner's allocation, for example, to facilitate visits from children or other family members, to enable child care arrangements to be organised and to complete any necessary offending behaviour work.
    • See Prison Service Order 0900 (para.6.4.2) which states that the allocation assessment should recognise that there are significant factors which influence the prisoner's allocation, for example, to facilitate visits from children or other family members, to enable child care arrangements to be organised and to complete any necessary offending behaviour work.
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    • See, for example, K. Marx, Capital Punishment (1853) in K. Marx and F. Engels, Collected Works, (London: Lawrence and Wishart, 1979), 11, pp.495-501.
    • See, for example, K. Marx, "Capital Punishment" (1853) in K. Marx and F. Engels, Collected Works, (London: Lawrence and Wishart, 1979), Vol.11, pp.495-501.
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    • As illustrated in other contexts, such as sex and race discrimination, see S. M. Cahn ed, London: Routledge
    • As illustrated in other contexts, such as sex and race discrimination, see S. M. Cahn (ed.), The Affirmative Action Debate (London: Routledge, 1996).
    • (1996) The Affirmative Action Debate
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    • See, trans T. M. Knox Oxford: Clarendon Press
    • See G.W.F. Hegel, The Philosophy of Right (1932), trans T. M. Knox (Oxford: Clarendon Press, 1952);
    • (1932) The Philosophy of Right
    • Hegel, G.W.F.1
  • 59
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    • see also his essay The English Reform Bill in Hegel's Political Writings, trans T.M. Knox (Oxford: Oxford University Press, 1964), pp.295-330.
    • see also his essay "The English Reform Bill" in Hegel's Political Writings, trans T.M. Knox (Oxford: Oxford University Press, 1964), pp.295-330.
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    • Proportionate Sentences: A Desert Perspective
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    • A. von Hirsch, "Proportionate Sentences: A Desert Perspective" in A. von Hirsch and A. Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart Publishing, 1999), pp.168-179 at p.177.
    • (1999) Principled Sentencing: Readings on Theory and Policy
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    • See S. Nicholas, C. Kershaw and A. Walker (eds), Crime in England and Wales, British Crime Survey 2006/07 (London: Home Office, 2006), p.20. The survey found that the unemployed were at greater risk of becoming victims of violence than the employed and those in lower income groups were at greater risk of becoming victims of burglary than those in higher income groups (pp.60, 90).
    • See S. Nicholas, C. Kershaw and A. Walker (eds), Crime in England and Wales, British Crime Survey 2006/07 (London: Home Office, 2006), p.20. The survey found that the unemployed were at greater risk of becoming victims of violence than the employed and those in lower income groups were at greater risk of becoming victims of burglary than those in higher income groups (pp.60, 90).
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    • Harmondsworth: Penguin
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    • With few exceptions. See DPP v Majewski [1977] A.C. 443. See also Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability (1995);
    • With few exceptions. See DPP v Majewski [1977] A.C. 443. See also Law Commission, Legislating the Criminal Code: Intoxication and Criminal Liability (1995);
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    • See C. Pantakis, D. Gordon and R. Levitas eds, Bristol: Policy Press
    • See C. Pantakis, D. Gordon and R. Levitas (eds), Poverty and Social Exclusion: The Millennium Survey (Bristol: Policy Press, 2006).
    • (2006) Poverty and Social Exclusion: The Millennium Survey
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    • See, Bristol: Policy Press, They provide evidence to show that the rich have become richer, more households have become poorer but there are fewer very poor households
    • See D. Dorling et al, Poverty, Wealth and Place in Britain, 1968 to 2005 (Bristol: Policy Press, 2007). They provide evidence to show that the rich have become richer, more households have become poorer but there are fewer very poor households.
    • (2007) Poverty, Wealth and Place in Britain, 1968 to 2005
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    • Income Inequality and Property Crime: A Cross-National Analysis of Relative Deprivation
    • S. Stacks, "Income Inequality and Property Crime: a Cross-National Analysis of Relative Deprivation" (1984) 22 Criminology 299;
    • (1984) Criminology , vol.22 , pp. 299
    • Stacks, S.1
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    • How Does Childhood Economic Disadvantage Lead to Crime?
    • There may a number of significant intervening variables which are relevant here, including family factors, individual, educational and peer factors which increase the risk of crime in adult life. See
    • There may a number of significant intervening variables which are relevant here, including family factors, individual, educational and peer factors which increase the risk of crime in adult life. See D. Ferguson, N. Swain-Campbell and J. Horwood, "How Does Childhood Economic Disadvantage Lead to Crime?" (2004) 5 Journal of Child Psychology and Psychiatry 956.
    • (2004) Journal of Child Psychology and Psychiatry , vol.5 , pp. 956
    • Ferguson, D.1    Swain-Campbell, N.2    Horwood, J.3
  • 78
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    • See Nicholas, Kershaw and Walker (eds), Crime in England and Wales 2006/07 (2006), p.20. The survey found that the unemployed were at greater risk of becoming victims of violence than the employed and those in lower income groups were at greater risk of becoming victims of burglary than those in higher income groups (pp.60, 90).
    • See Nicholas, Kershaw and Walker (eds), Crime in England and Wales 2006/07 (2006), p.20. The survey found that the unemployed were at greater risk of becoming victims of violence than the employed and those in lower income groups were at greater risk of becoming victims of burglary than those in higher income groups (pp.60, 90).
  • 81
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    • s.128 of the PCCSA 2000; ss.162-165 of the CJA 2003.
    • s.128 of the PCCSA 2000; ss.162-165 of the CJA 2003.
  • 84
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    • The Prison League Tables, now published quarterly, distinguish four levels of performance with one prison, Pentonville, at present at the lowest level. If standards fall below what is acceptable then there is scope for compensation through an Art.3 claim, and some prisoners are now using this route, although it has been argued that a sentence reduction would also be appropriate; see A. Ashworth and E. Player, Sentencing, Equal Treatment and the Impact of Sanctions in A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (Oxford: Clarendon, 1998), pp.251-272.
    • The Prison League Tables, now published quarterly, distinguish four levels of performance with one prison, Pentonville, at present at the lowest level. If standards fall below what is acceptable then there is scope for compensation through an Art.3 claim, and some prisoners are now using this route, although it has been argued that a sentence reduction would also be appropriate; see A. Ashworth and E. Player, "Sentencing, Equal Treatment and the Impact of Sanctions" in A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (Oxford: Clarendon, 1998), pp.251-272.


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