Legislating sentencing principles: The provisions of the Criminal Justice Act 2003 relating to sentencing purposes and the role of previous convictions

Criminal Law Review

Volumn , Issue AUG., 2004, Pages 639-652

  Von Hirsch, Andrew ^a   Roberts, Julian V ^b  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^b UNIVERSITY OF OTTAWA   (Canada)

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[No Author keywords available]

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EID: 4043074947     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (79)

1. Home Office, Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales (2001) ("Halliday Report"). The report is available at: www.homeoffice.gov.uk/cpg/halliday.htm. For commentary on the Halliday Report's proposals, see A. von Hirsch, "Record-enhanced Sentencing in England and Wales" (2002) 4 Punishment and Society 443; J.V. Roberts "Alchemy in Sentencing: an Analysis of Sentencing Reform Proposals in England and Wales" (2002) 4 Punishment and Society 425; and E. Baker and C. Clarkson, "Making Punishments Work: an Evaluation of the Halliday Report on Sentencing in England and Wales" [2002] Crim.L.R. 81.
2. Home Office, Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales (2001) ("Halliday Report"). The report is available at: www.homeoffice.gov.uk/cpg/halliday.htm. For commentary on the Halliday Report's proposals, see A. von Hirsch, "Record-enhanced Sentencing in England and Wales" (2002) 4 Punishment and Society 443; J.V. Roberts "Alchemy in Sentencing: an Analysis of Sentencing Reform Proposals in England and Wales" (2002) 4 Punishment and Society 425; and E. Baker and C. Clarkson, "Making Punishments Work: an Evaluation of the Halliday Report on Sentencing in England and Wales" [2002] Crim.L.R. 81.
3. Home Office, Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales (2001) ("Halliday Report"). The report is available at: www.homeoffice.gov.uk/cpg/halliday.htm. For commentary on the Halliday Report's proposals, see A. von Hirsch, "Record-enhanced Sentencing in England and Wales" (2002) 4 Punishment and Society 443; J.V. Roberts "Alchemy in Sentencing: an Analysis of Sentencing Reform Proposals in England and Wales" (2002) 4 Punishment and Society 425; and E. Baker and C. Clarkson, "Making Punishments Work: an Evaluation of the Halliday Report on Sentencing in England and Wales" [2002] Crim.L.R. 81.
4. Home Office, Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales (2001) ("Halliday Report"). The report is available at: www.homeoffice.gov.uk/cpg/halliday.htm. For commentary on the Halliday Report's proposals, see A. von Hirsch, "Record-enhanced Sentencing in England and Wales" (2002) 4 Punishment and Society 443; J.V. Roberts "Alchemy in Sentencing: an Analysis of Sentencing Reform Proposals in England and Wales" (2002) 4 Punishment and Society 425; and E. Baker and C. Clarkson, "Making Punishments Work: an Evaluation of the Halliday Report on Sentencing in England and Wales" [2002] Crim.L.R. 81.
5. Home Office, Justice for All, Cm.5563 (2002).
6. See J.V. Roberts and A. von Hirsch, "Legislating the Purpose and Principles of Sentencing" in J.V. Roberts and D. Cole (eds), Making Sense of Sentencing (1999).
7. See J.V. Roberts, "An Analysis of the Statutory Statement of the Purposes and Principles of Sentencing in New Zealand" (2003) 36 Australia and New Zealand J. Crim. 249.
8. South African Law Commission, Sentencing (A New Sentencing Framework) Discussion Paper 91 (Project 82). Available at www.law.wits.ac.za/salc.
9. A. Freiberg, Pathways to Justice: Sentencing Review 2002 (2002).
10. The Court of Appeal, however, decided in 1993 to permit judges to consider deterrence in setting their sentence, at least to some extent. The judgment in Cunningham holds that the statutory phrase "commensurate with the seriousness of the offence" must mean commensurate with the punishment and deterrence which the seriousness of the offence requires; (1993) 14 Cr.App.R. (S.) at 447.
11. "Incapacitation" refers to restraining an offender from committing further criminal acts. See R Zimring and G. Hawkins, Incapacitation (1995).
12. Criminal Justice Act 1991, s.2(2)(b). For analysis of this provision, see M. Wasik and A. von Hirsch, "Section 29 Revised: Previous Convictions in Sentencing" [1994] Crim.L.R. 409.
13. This section thus provides: "Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences."
14. Wasik and von Hirsch, supra, n.10; see also, M. Frankel, Criminal Sentences: Law without Order (1972).
15. Wasik and von Hirsch, supra, n.10; see also, M. Frankel, Criminal Sentences: Law without Order (1972).
16. M. Tonry and K. Hatlestad, Sentencing Reform in Overcrowded Times (1997) ; M. Tonry and R. Frase (eds), Sentencing and Sanctions in Western Countries (2001), Chs 3 and 11.
17. M. Tonry and K. Hatlestad, Sentencing Reform in Overcrowded Times (1997) ; M. Tonry and R. Frase (eds), Sentencing and Sanctions in Western Countries (2001), Chs 3 and 11.
18. See, e.g. M. Tonry, Sentencing Matters (1996). The Home Office-sponsored Halliday Report, published in 2001, also does not advocate this: it suggests a greater emphasis on the criminal record than just deserts theory or the 1991 Act would have allowed; but in other respects supports a continued emphasis on proportionality in sentencing. The report notes that "The principle of proportionate punishments needs to be sustained"; see supra, n.2 at p.12.
19. See A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (1998); A. Ashworth, Sentencing and Criminal Justice (2000).
20. See A. Ashworth and M. Wasik (eds), Fundamentals of Sentencing Theory (1998); A. Ashworth, Sentencing and Criminal Justice (2000).
21. The document which announced the creation of the Halliday Review asserted that "the legal framework established in the Criminal Justice Act 1991 remains, and this appears to be a contributory factor to inherent problems in sentencing. . . [by] taking little account of offenders' propensity to re-offend . . . The time is ripe to determine . . . what sort of framework would best deliver the twin aims of public protection and a reduction in re-offending" (Home Office, 2000). The Correctional Policy Framework Document notes that: "Those who commit crime should be punished in ways which prevent re-offending" (Home Office) undated, at p.4). In his foreword to the Consultation Document, the Home Secretary posed the following question: "What can we do to build a sentencing regime that enjoys public confidence and reduces crime? (Foreword to "Summary of Responses to the Consultation Exercise"; emphasis added. Available online at www.homeoffice.gov.uk/docs/consrespoverview.pdf). Most recently, the Government's response to the Carter Report further links sentencing to reducing re-offending; see "Tackling Re-offending - Making Sentences Work" (Home Office, Reducing Crime - Changing Lives, 2004).
22. The Home Secretary has made repeated reference to the importance of responding to public opinion: "We need to put sense back into sentencing. Layer on layer of legislation, change after change in direction and philosophy . . . has led to a serious loss of public confidence in the system. And that confidence must be regained" (Speech to National Probation Service inaugural conference, July 5, 2001; available online at www.homeojfice. gov.uk/docs/sentenchomsec.pdf).
23. See, most notably, the "1978 National Academy of Sciences, Panel on Research on Deterrent and Incapacitative Effects" in A. Blumstein, J. Cohen and D. Nagin (eds), Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (1978), at 1-90.
24. Home Office, Crime, Justice, and Protecting the Public, Cm.965 (1990).
25. This was the conclusion reached in A. von Hirsch et al., Criminal Deterrence and Sentence Severity (1999); A. Doob and C. Webster, "Sentence Severity and Crime: Accepting the Null Hypothesis" in M. Tonry (ed.), (2003) 30 Crime and Justice; D. Nagin, "Criminal Deterrence Research at the Beginning of the Twenty-first century" in M. Tonry (ed.), (1998) Crime and Justice.
26. This was the conclusion reached in A. von Hirsch et al., Criminal Deterrence and Sentence Severity (1999); A. Doob and C. Webster, "Sentence Severity and Crime: Accepting the Null Hypothesis" in M. Tonry (ed.), (2003) 30 Crime and Justice; D. Nagin, "Criminal Deterrence Research at the Beginning of the Twenty-first century" in M. Tonry (ed.), (1998) Crime and Justice.
27. This was the conclusion reached in A. von Hirsch et al., Criminal Deterrence and Sentence Severity (1999); A. Doob and C. Webster, "Sentence Severity and Crime: Accepting the Null Hypothesis" in M. Tonry (ed.), (2003) 30 Crime and Justice; D. Nagin, "Criminal Deterrence Research at the Beginning of the Twenty-first century" in M. Tonry (ed.), (1998) Crime and Justice.
28. F. Zimring and G. Hawkins, Incapacitation, supra, n.9.
29. I b i d.
30. Nagin, for example, in his review of the incapacitation literature concludes that "the crime prevention benefits of incapacitation are highly uncertain"; D. Nagin, "Deterrence and Incapacitation" in M. Tonry (ed.), The Handbook of Crime and Punishment (1998); see also Zimring and Hawkins, supra, n.9.
31. Nagin, for example, in his review of the incapacitation literature concludes that "the crime prevention benefits of incapacitation are highly uncertain"; D. Nagin, "Deterrence and Incapacitation" in M. Tonry (ed.), The Handbook of Crime and Punishment (1998); see also Zimring and Hawkins, supra, n.9.
32. The Halliday Report noted that "the available evidence does not suggest a case for changing the framework in any particular direction for the sole purpose of increasing an "incapacitation" effect"; supra, n.2 at pp.9-10. It reaches the same sceptical conclusion regarding enhancing deterrence by changing the sentencing framework; ibid., at p.9. More recently, the Correctional Services Review ("Carter Report") acknowledged that "incapacitation is only associated with small falls in crime." P. Carter, "Managing Offenders, Reducing Crime. A New Approach" (2003), at p.15.
33. Supra, n.2 at p.13.
34. The Halliday Report made rather ambitious claims concerning the effects of rehabilitative programmes on recidivism - making reference to a possible 5-15 per cent reduction in recidivism rates; see Halliday Report, supra n.2 at pp.6-7. However, recent evidence is considerably more equivocal concerning the extent of treatment programmes' effects. An example of the difficulties that may be encountered is suggested by an ambitious recent Home Office study of the effects of two kinds of cognitive skills programmes, "Reasoning and Rehabilitation" and "Enhanced Thinking Skills", on a large sample of prisoners (2,195 adults and 1,534 under-21s). It was found that the modest impact on recidivism after one year was not maintained after two years (see Home Office Research Finding No.226 (2003)). There is continuing research today on a variety of treatment programmes, and others may prove more successful. A degree of caution is indicated, however, regarding claims that rehabilitative efforts can have large effects on crime rates.
35. The Halliday Report made rather ambitious claims concerning the effects of rehabilitative programmes on recidivism - making reference to a possible 5-15 per cent reduction in recidivism rates; see Halliday Report, supra n.2 at pp.6-7. However, recent evidence is considerably more equivocal concerning the extent of treatment programmes' effects. An example of the difficulties that may be encountered is suggested by an ambitious recent Home Office study of the effects of two kinds of cognitive skills programmes, "Reasoning and Rehabilitation" and "Enhanced Thinking Skills", on a large sample of prisoners (2,195 adults and 1,534 under-21s). It was found that the modest impact on recidivism after one year was not maintained after two years (see Home Office Research Finding No.226 (2003)). There is continuing research today on a variety of treatment programmes, and others may prove more successful. A degree of caution is indicated, however, regarding claims that rehabilitative efforts can have large effects on crime rates.
36. See more fully, von Hirsch, Censure and Sanctions (1993), at pp.15-19; Ashworth, Sentencing and Criminal Justice, supra, n.15.
37. See more fully, von Hirsch, Censure and Sanctions (1993), at pp.15-19; Ashworth, Sentencing and Criminal Justice, supra, n.15.
38. See supra, nn.16 and 17.
39. The 1991 Act's language in s. 1(2) (a) was, in turn, derived from earlier provisions relating to juvenile offenders. The custody-threshold language, now embodied in s.152(2), has also a counterpart in s.148(1) which requires that a court must not pass a community sentence, unless it is satisfied that "the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a [community] sentence".
40. See A. Ashworth and A. von Hirsch, "Recognising Elephants: the Problem of the Custody Threshold" [1997] Crim.L.R. 187.
41. [1999] 1 Cr.App.R. (S.) 279.
42. These increases in the use of custody are documented in M. Hough, J. Jacobson and A. Millie, The Decision to Imprison: Sentencing and the Prison Population (2003).
43. The relevant statutory language is that the court "must have regard" to such purposes. A restrictive interpretation of this language would be that the sentencer must address his or her mind to these additional purposes - but need not necessarily adjust the sentence to take them into account. Alternatively, however, the language could be interpreted more ambitiously, to mean that the sentences should generally be adjusted to reflect crime-preventive aims. To the extent that courts adopt this latter interpretation, the severity of sentences imposed could be affected quite substantially.
44. Such limits could reflect a "modified" version of the just-deserts model (see von Hirsch, supra, n.27 at pp.54-56); or possibly the somewhat similar (although probably more permissive) "limiting retributivism" model (see M. Tonry, "Interchangeability: Desert Limits and Equivalence of Function" in A. von Hirsch and A. Ashworth (eds), Principled Sentencing (1998), at pp.291-296).
45. Such limits could reflect a "modified" version of the just-deserts model (see von Hirsch, supra, n.27 at pp.54-56); or possibly the somewhat similar (although probably more permissive) "limiting retributivism" model (see M. Tonry, "Interchangeability: Desert Limits and Equivalence of Function" in A. von Hirsch and A. Ashworth (eds), Principled Sentencing (1998), at pp.291-296).
46. Even if deterrent or incapacitative effects could better be confirmed empirically than they are today, preventively-oriented sentencing is likely to encounter an effectiveness/fairness tradeoff. Modest sentence increases would be unlikely to have much (if any) added incapacitative or deterrent effect. Large increases might, imaginably, be more effective (although this as yet has no empirical support); but these would burst the kind of upper desert limits of which we are speaking.
47. The initial basis used by the Council in its sentencing standards could thus be assessed in terms of the seriousness of the offences involved; and indeed, s.170(7) requires that the guidelines must include criteria for determining offence seriousness. The seriousness of a crime should be gauged in terms of its degree of harmfulness and culpability (see, e.g. von Hirsch, supra, n.27, Ch.4) and indeed, s.143(1) calls for this to be the standard for gauging crime seriousness.
48. See earlier discussion accompanying nn.29-35.
49. (1981) 3 Cr.App.R. (S.) 245.
50. See Wasik and von Hirsch, supra, n. 10.
51. i b i d.
52. See, e.g. ibid. and A. von Hirsch, Past or Future Crimes (1985), Ch.7.
53. See, e.g. ibid. and A. von Hirsch, Past or Future Crimes (1985), Ch.7.
54. Wasik and von Hirsch, supra, n. 10.
55. The section provides: "In considering the seriousness of an offence ('the current offence') committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular to (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction."
56. See J.V. Roberts, "Paying for the Past: the Role of Criminal Record in the Sentencing Process" in M. Tonry (ed.), (1997) 22 Crime and Justice. A Review of Research.
57. See US Sentencing Commission Guidelines Manual (2002).
58. A superior approach to incorporating previous convictions can be found in the proposals advanced by the South African Law Commission, supra, n.6. Under the South African proposals, courts may use the absence or presence of previous convictions to modify the severity of the sentence, but only to a "moderate" extent. The proposed s.3(4) thus provides: "The presence of relevant previous convictions may be used to modify the sentence proportionate to the seriousness of the offence to a moderate degree". This formulation should prevent previous convictions from assuming more importance than crime seriousness as a determinant of sentence severity. No such constraint exists in the wording of s.143 (2) of the Criminal Justice Act 2003.
59. See supra, n.2 at p. 16.
60. See supra, n.27.
61. See more fully, von Hirsch, supra, n.2 at pp.444-450.
62. The Halliday Report thus asserts that "A continuing course of criminal conduct in the face of repeated attempts by the State to try to correct it, calls for increasing denunciation and retribution, notwithstanding that earlier crimes have been punished," supra, n.2 at p. 13. For critical discussion of this perspective, see von Hirsch, supra, n.2 at pp.446-450.
63. Supra, n.2 at p.16, para.2.20.
64. s.153(2) of the Act, to which we previously referred, would not seem to offer much assistance in providing any ceiling on increases. That provision states that a custodial sentence must be for "the shortest term" commensurate with the seriousness of the offence. But the Act's provision on penalty increases on account of prior convictions (s.143(2)) describes those increases as adjustments of the "seriousness" of the offence. Thus continuing upward adjustment in sentence would arguably be permissible, as each previous conviction could be deemed to enhance the supposed seriousness of the offence.
65. Home Office, Criminal Justice: The Way Ahead (2002), para. 1.28.
66. ibid., at para. 1.31.
67. For example, over half the male offenders and fully 80 per cent of female offenders born between 1953 and 1978 had criminal "careers" that were over in less than a year - not so much a career as a brief apprenticeship; see J. Prime, S. White, S. Liriano and K. Patel, Criminal Careers of those Born between 1953 and 1978 (2001).
68. The report notes the shifting composition of the group of active criminal offenders, and points out that "even very modest increases in incapacitative impact would call for very large increases in prison populations. The prison population would need to increase by around 15%, for a reduction in crime of 1%" (Halliday Report, supra. n.2 at p.9).
69. See Halliday Report, supra, n.2 at paras 1.62-1.64.
70. Thus: "the available evidence does not suggest a case for changing the framework in any particular direction for the sole purpose of increasing an 'incapacitation'" effect; supra, n.2 at p.10.
71. I. Cross and T. Olowe, Prison Population Brief. England and Wales: November 2003 (2003).
72. Home Office, Prison Statistics England and Wales, Cm. 5996 (2002).
73. Halliday Report, supra, n.2 at p.60.
74. P. Langen and D. Levin, Recidivism of Prisoners Released in 1994. Bureau of Justice Statistics Special Report (2002) at p.1.
75. See P. Spier, "Re-conviction and Reimprisonment Rates for Released Prisoners". Research Findings, (2002), Number 1, Table 8.
76. M. Elkins and J. Olagundoye, "The Prison Population in 2000: a Statistical Review." Research Findings 154 (2001).
77. Most American sentencing guideline schemes define a limited period within which previous convictions will count at sentencing; see J.V. Roberts, supra, n.44 at p.337.
78. It would be helpful to the Council's work if Parliament were to amend the wording of 8.143(2), so as to eliminate or modify the requirement of an increase with each prior conviction. Since this provision will come into effect only after a significant delay, the Sentencing Council could recommend that such a step be taken.
79. Some direction in this regard has been provided by the Carter Report which proposed that the Sentencing Guidelines Council issue guidelines that "ensure offences are treated proportionately to their severity. . . and make cost effective use of existing capacity" see Carter Report, supra, n.24 at p.31.