Cambridge.University.Press.Sentencing.and.Criminal.Justice.Dec.2005.pdf

Cambridge.University.Press.Sentencing.and.Criminal.Justice.Dec.2005.

Providing unrivalled coverage of one of the most high-profile stages in the criminaljustice process, this book examines the key issues in sentencing policy and practice.

It provides an up-to-date account of the legislation on sentencing together withthe ever-increasing amount of Court of Appeal case law The aim of the book is toexamine English sentencing law in its context, drawing not only upon legislation andthe decisions of the courts but also upon the findings of research and on theoreticaljustifications for punishment

The analysis is given depth and perspective by examining the interaction betweenthe law and the wider criminal justice system, including the prison and probationservices The book also discusses the influence of statements from politicians, themass media and public opinion It engages with the theory of sentencing and thereasons for depriving offenders of their liberty It looks at the statistical evidence onthe effectiveness of sentences, and pays particular attention to difficult questionsabout aggravating and mitigating factors in sentencing, the proper approach todealing with persistent offenders, the relevance of race, gender and unemployment,and the growth of ‘preventive’ orders (such as anti-social behaviour orders) whichare not sentences as such but which impose restrictions and obligations

This new edition has been extensively revised so as to integrate the new lawsintroduced by the Criminal Justice Act 2003, which has brought sweeping reforms

to English sentencing

Andrew Ashworth is Vinerian Professor of English Law at the University of

Oxford His previous titles include Principles of Criminal Law (4th edn, 2003), The Criminal Process (3rd edn,2005, with Mike Redmayne) and Proportionate Sentencing

(2005, with Andrew von Hirsch)

Editors: William Twining (University College London)

and Christopher McCrudden (Lincoln College, Oxford)

Since 1970 the Law in Context series has been in the forefront of the movement tobroaden the study of law It has been a vehicle for the publication of innovative scholarlybooks that treat law and legal phenomena critically in their social, political and economiccontexts from a variety of perspectives The series particularly aims to publish scholarlylegal writing that brings fresh perspectives to bear on new and existing areas of law taught

in universities A contextual approach involves treating legal subjects broadly, usingmaterials from other social sciences, and from any other discipline that helps to explainthe operation in practice of the subject under discussion It is hoped that this orientation

is at once more stimulating and more realistic than the bare exposition of legal rules Theseries includes original books that have a different emphasis from traditional legaltextbooks, while maintaining the same high standards of scholarship They are writtenprimarily for undergraduate and graduate students of law and of other disciplines, butmost also appeal to a wider readership In the past, most books in the series have focused

on English law, but recent publications include books on European law, globalisation,transnational legal processes, and comparative law

Books in the Series

Anderson, Schum & Twining: Analysis of Evidence

Ashworth: Sentencing and Criminal Justice

Barton & Douglas: Law and Parenthood

Bell: French Legal Cultures

Bercusson: European Labour Law

Birkinshaw: European Public Law

Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal

Cane: Atiyah’s Accidents, Compensation and the Law

Clarke & Kohler: Property Law

Collins: The Law of Contract

Davies: Perspectives on Labour Law

De Sousa Santos: Toward a New Legal Common Sense

Diduck: Law’s Families

Elworthy & Holder: Environmental Protection: Text and Materials

Fortin: Children’s Rights and the Developing Law

Glover-Thomas: Reconstructing Mental Health Law and Policy

Gobert & Punch: Rethinking Corporate Crime

Harlow & Rawlings: Law and Administration: Text and Materials

Harris: An Introduction to Law

Harris: Remedies in Contract and Tort

Harvey: Seeking Asylum in the UK: Problems and Prospects

Hervey & McHale: Health Law and the European Union

Lacey & Wells: Reconstructing Criminal Law

Lewis: Choice and the Legal Order: Rising above Politics

Likosky: Transnational Legal Processes

Maughan & Webb: Lawyering Skills and the Legal Process

Moffat: Trusts Law: Text and Materials

Norrie: Crime, Reason and History

O’Dair: Legal Ethics

Oliver & Drewry: The Law and Parliament

Picciotto: International Business Taxation

Reed: Internet Law: Text and Materials

Richardson: Law, Process and Custody

Roberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision Making Scott & Black: Cranston’s Consumers and the Law

Seneviratne: Ombudsmen: Public Services and Administrative Justice

Stapleton: Product Liability

Turpin: British Government and the Constitution: Text, Cases and Materials

Twining: Globalisation and Legal Theory

Twining: Rethinking Evidence

Twining & Miers: How to do Things with Rules

Ward: A Critical Introduction to European Law

Ward: Shakespeare and Legal Imagination

Zander: Cases and Materials on the English Legal System

Zander: The Law-Making Process

Sentencing and Criminal Justice

Fourth edition

Andrew Ashworth

Vinerian Professor of English Law,

University of Oxford

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University Press

The Edinburgh Building, Cambridgecb2 2ru, UK

First published in print format

isbn-13 978-0-521-67405-8

isbn-13 978-0-511-13466-1

© Andrew Ashworth 2005

2005

Information on this title: www.cambridge.org/9780521674058

This publication is in copyright Subject to statutory exception and to the provision ofrelevant collective licensing agreements, no reproduction of any part may take placewithout the written permission of Cambridge University Press

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2.2 The Sentencing Advisory Panel and the Sentencing

vii

4.3 Developing parameters of ordinal proportionality 106

6.3 Previous convictions and the Criminal Justice Act 2003 191

9.2 The use of imprisonment 260

9.4 The custody threshold and short custodial sentences 271

9.5 Custodial sentences of twelve months and longer:release

In the five years since the third edition, the brisk pace of change in sentencing set

in the 1990s has continued with vigour Most significant is the Criminal Justice Act

2003 Over half of its 339 sections and 30 of its 38 schedules relate to sentencing.Not all of those provisions are yet in force – at the time of writing, it appears that thenew sentence of custody plus and the raising of the magistrates’ courts’ sentencinglimit from 6 to 12 months will not be brought in until autumn 2006 Several chap-ters have needed extensive rewriting in order to reflect the provisions of the 2003Act Attention has also been paid to other significant changes in sentencing – thecontinued rise in the prison population to over 75,000; the continued increase inreliance on the National Probation Service for risk management and rehabilitation

in the community; the extension of social control through the anti-social behaviourorder and the many other preventive orders and the concomitant blurring of bound-aries, rights and responsibilities that this entails; the development of the guidelinemovement in sentencing, and the unexpected return of the Court of Appeal to thepractice of laying down guidelines or ‘guidance’; and many other changes

I ceased to gather material for this edition at the end of March 2005, but roomhas been found for a few subsequent developments I am grateful for the term’ssabbatical leave granted by the University of Oxford to enable me to push forwardwith this project, and also to the Law Faculty at the University of Tasmania for itswarm welcome and generous support during my visit in January–February 2005

I received helpful suggestions about the book from a number of colleagues, and myspecial thanks go to Elaine Player for commenting on a draft of Chapter9and toJulian Roberts for commenting on a draft of Chapter6 And, above all, I owe a greatdebt to Von, whose support for me throughout this project was unwavering eventhough I had to spend much more time than anticipated at my desk

Andrew AshworthAll Souls College, Oxford

May 2005

x

Table of statutes

Anti-Social Behaviour Act 2003 206

Anti-Terrorism, Crime and Security

66,81,98,207,211,281

s 3 207

s 4 134,208

s 45 376Criminal Damage Act 1971 51Criminal Injuries Compensation Act

1995 298Criminal Justice Act 1948 183Criminal Justice Act 1967 183Criminal Justice Act 1972 293,298Criminal Justice Act 1982293,298,360Criminal Justice Act 1988 334

s 36 40

s 104 298Criminal Justice Act 1991 2,73,74,95,

xi

Criminal Justice Act 2003 2,4,6,25,

para 38377Sch 37 34Criminal Justice and Court ServicesAct 2000 295

s 28 336

s 41 140Criminal Justice and Police Act 2001

s 33 338Criminal Justice and Public Order Act1994

s 48 163,167Criminal Law Act 1977 1Criminal Procedure and InvestigationsAct 1996

s 49 29Criminal Procedure (Insanity andUnfitness to Plead) Act 1991 370Domestic Violence, Crime and VictimsAct 2004 299,352

s 38(4) 333Firearms Act 1968242

s 51A 377

s 51A(2) 164

Football (Disorder) Act 2000 338

Football Spectators Act 1989

s 14A 338

Human Rights Act 199850,53,66,92,

203,219,340

s 6 259

Justices of the Peace Act 13614,297

Licensed Premises (Exclusion of

Certain Persons) Act 1980

Misuse of Drugs Act 1971124

Murder (Abolition of Death Penalty)

Prevention of Crime Act 1908 182Proceeds of Crime Act 2002 32,39,91,

219,223Rehabilitation of Offenders Act 1974197

Road Traffic Act 1988335Sex Offenders Act 1997 334Sexual Offences Act 2003 39,51,62,

Community Protection Act 1994

(New South Wales) 53

Sentencing Act 1991 (Victoria)

s 16 245FinlandPenal CodeArt 6 103GermanyPenal Code

s 52 252New ZealandChildren, Young Persons and theirFamilies Act 198989

SwedenCriminal CodeChapter 29 103para 5174United StatesSentencing Reform Act 1984 56,73

Anglian Water Services Ltd [2004] 1 Cr App R (S) 374 310

Apprendi v New Jersey (2000) 120 S Ct 2348346

Attorney General’s Reference No 7 of 1991 (Khan) (1993) 14 Cr App R (S) 122131

Attorney General’s Reference No 7 of 1997 (Fearon) [1998] 1 Cr App R (S) 268347

Attorney General’s Reference No 14 of 2000 [2001] 1 Cr App R (S) 55127Attorney General’s Reference No 18 of 1993 (1994) 15 Cr App R (S) 800356Attorney General’s Reference No 23 of 1992 (1993) 14 Cr App R (S) 759340Attorney General’s Reference No 28 of 2001 [2001] EWCA Crim 1373 320Attorney General’s Reference No 31 of 1993 (1995) 16 Cr App R (S) 90253Attorney General’s Reference No 32 of 1996 [1997] 1 Cr App R (S) 261210Attorney General’s Reference No 33 of 1996 (Latham) [1997] 2 Cr App R (S) 10120

Attorney General’s Reference No 34 of 1992 (1993) 15 Cr App R (S) 167372

xvi

Attorney General’s Reference No 35 of 1995 (Hartley) [1996] 1 Cr App R (S) 413159

Attorney General’s Reference No 37 of 2004 (Dawson) [2005] 1 Cr App R (S) 295

162,319,373

Attorney General’s Reference No 41 of 1994 (1995) 16 Cr App R (S) 792127

Attorney General’s Reference No 46 of 1997 [1998] 2 Cr App R (S) 338246

Attorney General’s Reference No 60 of 2003 [2004] 2 Cr App R (S) 376344

Attorney General’s Reference No 70 of 2003 [2004] 2 Cr App R (S) 254344

Attorney General’s Reference No 77 of 2002 (Scotney) [2003] 1 Cr App R (S) 564357

Attorney General’s Reference No 83 of 2001 (Fidler) [2002] 1 Cr App R (S) 588162

Attorney General’s Reference No 85 of 2003 (Evesham) [2004] 2 Cr App R (S) 371123

Attorney General’s Reference No 89 of 1998 [2000] 1 Cr App R (S) 49245

Attorney General’s Reference No 89 of 1999 (Farrow) [2000] 2 Cr App R (S) 382131

Attorney General’s Reference No 99 of 2003 (Vidler) [2005] 1 Cr App R (S) 150159

Attorney General’s Reference No 104 of 2004 (Garvey) [2005] Crim LR 150129Attorney General’s Reference No 108 of 2001 (Tullius) [2002] 2 Cr App R (S) 294156

Attorney General’s References Nos 4 and 7 of 2002 [2002] 2 Cr App R (S) 345 38,

Avon Lippiatt Hobbs (Contractors) Ltd [2003] 2 Cr App R (S) 427 310

B v Chief Constable of Avon and Somerset [2001] 1 WLR 340 337

Bond v Chief Constable of Kent (1982) 4 Cr App R (S) 314300Bosanquet (1991) 12 Cr App R (S) 646251

C (John Francis) (1993) 14 Cr App R (S) 562176

C v Sunderland Youth Court [2004] 1 Cr App R (S) 443204,339Caird et al (1970) 54 Cr App R 499157

Canavan and Kidd [1998] 1 Cr App R (S) 243 240,241

Cargill [1913] 2 KB 671233

Casati [1981] ECR 2595 148

Cawthorne [1996] 2 Cr App R (S) 445 343

Celaire and Poulton [2003] 1 Cr App R (S) 610 246

Chalcraft and Campbell [2002] 2 Cr App R (S) 172139,162Chambers (1983) 5 Cr App R (S) 190119

Chapman [1999] 2 Cr App R (S) 374157

Chapman [2000] 1 Cr App R (S) 377211

Cheetham and Baker [2004] 2 Cr App R (S) 278 122

Chelmsford Crown Court, ex parte Birchall (1989) 11 Cr App R (S) 510252

Crosby and Hayes (1974) 60 Cr App R 234173

Crown Court at Manchester, ex parte McCann [2003] 1 AC 787 204

De Salvador Torres v Spain (1997) 23 EHRR 601 343

Delazarus v UK App No 17525/1990260

Elder and Pyle (1993) 15 Cr App R (S) 514 125

Ellis and Avis [2000] 1 Cr App R (S) 38125

Evans (1974) unreported 162

Fairbairn (1980) 2 Cr App R (S) 284 231,232

Faulkner (1972) Cr App R 594245–

Fell [1963] Crim LR 207233

Field and Young [2003] 2 Cr App R (S) 175336

Hobstaff (1993) 14 Cr App R (S) 605354

Hodgson (1967) 52 Cr App R 113210

Holah (1989) 11 Cr App R (S) 282 300

Holderness249

Home Secretary, ex parte Anderson [2003] 1 AC 837 53,93,116

Home Secretary, ex parte Doody [1994] 1 AC 531 116

Home Secretary, ex parte Duggan [1994] 3 All ER 271 256

Home Secretary, ex parte Hindley [2001] 1 AC 410 116

Home Secretary, ex parte Uttley [2004] UKHL 38 35,117

Horsham Justices, ex parte Richards (1985) 7 Cr App R (S) 158300

Howe (F) & Son (Engineers) Ltd [1999] 2 Cr App R (S) 37310

Milberry et al [2003] 2 Cr App R (S) 14233,128,129,191

Milford Haven Port Authority [2000] 2 Cr App R (S) 423310

Nafei [2005] Crim LR 409373

Nall-Cain (Lord Brocket) [1998] 2 Cr App R (S) 145177

Napier v Scottish Executive [2004] UKHRR 881 93,260,291

Nazir [2003] 2 Cr App R (S) 671 158

Nelson [2002] 1 Cr App R (S) 565 35,213

Newman, Newman and Myers (1979) 1 Cr App R (S) 252 340

Newsome and Browne [1970] 2 QB 71162

Offen (No 2) [2001] 2 Cr App R (S) 44 53,93,118

Okee and West [1998] 2 Cr App R (S) 199166

O’Keefe [2004] 1 Cr App R (S) 404 338

Oldham JJ, ex parte Crawley [1996] 1 All ER 464311

Oliver, Hartrey and Baldwin [2003] 2 Cr App R (S) 6433,159,274

S (Harold Nicholas) [1998] 1 Cr App R (S) 261176

Salisbury Justices [2003] 1 Cr App R (S) 560 171–

CHAPTER 1

An introduction to English sentencing

1.1 Courts and crimes

Although some common law crimes remain, most of the offences in English criminallaw were created by statute and have a statutory maximum penalty For the purposes

of trial, offences were divided into three categories by the Criminal Law Act 1977 –offences triable only on indictment, offences triable only summarily, and offencestriable either way The most serious offences (e.g murder, rape) are triable only onindictment, at the Crown Court A large mass of less serious offences is triable onlysummarily, in magistrates’ courts The middle category of offences triable eitherway comprises most burglaries, thefts and deceptions The first question in thesecases concerns the defendant’s intended plea: if the defendant indicates a plea ofguilty, the magistrates must assume jurisdiction and proceed to sentence, unlessthey decide that their sentencing powers are insufficient If the intended plea is notguilty, the defendant will be tried at a magistrates’ court unless either the magistratesdirect or the defendant elects that the case be tried at the Crown Court

The Crown Court sits with a judge and jury There are three levels of CrownCourt centre: first-tier centres, where both civil and criminal cases are tried andwhere High Court judges and circuit judges preside; second-tier centres, whereHigh Court judges or circuit judges preside but only deal with criminal cases; andthird-tier centres, where circuit judges or recorders deal with criminal cases, beingmostly offences triable either way The types of criminal offence are divided intofour classes, according to their gravity, and some can only be tried by a High Courtjudge, whereas others can be tried by circuit judges or recorders In total, there areover 1,000 Crown Court sentencers Circuit judges are full-time judges, althoughthey may divide their time between civil and criminal work Recorders and assistantrecorders are part-time judges, whose main occupations are barristers, solicitors or(in a few instances) academics; most full-time judges start their judicial careers inthis way Appeals against sentence from the Crown Court go to the Court of Appealand, if there is no point of law involved, the appeal requires the court’s leave if it is

to be heard Applications for leave are dealt with by individual High Court judges.Magistrates’ courts deal with the least serious criminal offences There are around30,000 lay magistrates in England and Wales, divided into local benches, and a

1

court normally consists of three magistrates There are also full-time and time District Judges (Magistrates’ Courts) (DJMC), formerly known as stipendiarymagistrates, whose numbers have grown in recent years to over 200 A DJMCmust be a barrister or solicitor of at least ten years’ standing, and he or she sitsalone – usually dealing with the longer or more complicated summary cases Thepowers of magistrates’ courts are limited to imposing a maximum of six months’imprisonment in respect of one offence (or a total of 12 months for two or moreoffences); these maxima are to be raised, when s 154 of the Criminal Justice Act

part-2003 is brought into force, to 12 months for a single offence and 65 weeks for two ormore offences The maximum fine or compensation order that may be imposed by

a magistrates’ court is usually £5,000 Magistrates may, having heard the evidence

in a case, commit it to the Crown Court for sentence, if they form the view that theoffence was so serious that greater punishment should be inflicted than they havepower to impose As mentioned above, a defendant who indicates an intention toplead guilty to an either-way offence should be sentenced by the magistrates unlessthey decide that their powers are insufficient, in which case they should commit tothe Crown Court for sentence A person who has been sentenced in a magistrates’court may appeal against sentence to the Crown Court The appeal takes the form

of a complete rehearing of the case, before a circuit judge or recorder and two laymagistrates, and the Crown Court has the power to pass any sentence which themagistrates’ court could have imposed, even if that sentence is more severe than theone they did in fact impose.1

Summary offences are little discussed in this book, although there are frequentreferences to sentencing in magistrates’ courts (which also deal with many ‘triable-either-way’ offences) Most of the statistics quoted in part3of this chapter refer to

‘indictable offences’, which include those triable on indictment and those either-way’, whether tried in a magistrates’ court or at the Crown Court

‘triable-1.2 The available sentences

Recent years have seen several major statutes bringing change to the sentencingstructure, and three of them are particularly important for present purposes Thefirst is the Criminal Justice Act 1991, which was the first major attempt for over

40 years to establish a coherent sentencing structure After a series of further statutes

in the 1990s, Parliament consolidated sentencing law in the Powers of CriminalCourts (Sentencing) (PCCS) Act 2000 This consolidation was a wonderful idea,since it promised the great convenience of bringing the various powers together inone place Sadly, the statute had already been overtaken by new provisions by thetime it came into force, and after three years large parts of it were replaced by thenow principal statute, the Criminal Justice Act 2003

This part of the chapter gives a preliminary sketch of the courts’ sentencingpowers, referring also to the different sentences available in relation to young adultoffenders (aged 18–21) and to juveniles Most of these sentencing powers are dis-cussed in detail in later chapters, and in part 4 of this chapter we examine the reasonswhy only a small proportion of the crimes committed in any one year result in anoffender being sentenced in court.

1.2.1 Sentences for adult offenders

A court’s duty in all cases involving injury, death, loss or damage is to consider

making a compensation order in favour of the victim or, in a case of death, the

victim’s family This forms part of a policy of increasing recognition of the needs,wishes and rights of the victims of crime A court has a duty to give reasons fornot making an order in a case where it has the power to do so The provisionsgoverning compensation orders are to be found in ss 130–134 of the PCCS Act

2000 One important restriction is that the court should take account of the means

of the offender when deciding whether to make an order and, if so deciding, forwhat amount The consequence is that some victims whose offenders are impe-cunious will receive nothing from this source, and that victims in cases where anorder is made may receive compensation for only part of their loss.2In 2002, overhalf of offenders convicted at magistrates’ courts of indictable offences of crimi-nal damage were ordered to pay compensation; as for those convicted of offences

of violence, 33 per cent in the magistrates’ courts and 17 per cent in the CrownCourt were subjected to compensation orders A compensation order will usually

be made as well as another order, but it may be made as the sole order against anoffender

The most lenient course which an English court can take after conviction is to

order an absolute discharge The power is governed by s 12 and Schedule 1 of the

PCCS Act 2000 A conviction followed by an absolute discharge does not count

as such for most future purposes Formally, the court must be satisfied that it is

‘inexpedient to inflict punishment’ In practice, the power is used in fewer than

1 per cent of cases, and is generally reserved for instances where there is very littlemoral guilt in the offence

The power to grant a conditional discharge is also to be found in ss 12–15 and

Schedule 1 of the PCCS Act 2000, and once again the conviction does not count

as such for most future purposes The condition is that the offender must commit

no offence within a period, of not more than three years, specified by the court Ifthe offender is convicted of an offence committed during that period, then he orshe is liable to be sentenced for the original offence as well Thus, the conditionaldischarge carries a threat of future punishment, as does also the power to ‘bind

2 Victims of crimes of violence also have the possibility of applying to the Criminal Injuries

over’ an offender to keep the peace and to be of good behaviour – in effect, a kind

of suspended fine which some courts tend to use more frequently than others.3

Conditional discharges continue to be used in substantial numbers of cases: of adultindictable offenders dealt with in 2002, some 14 per cent of males and 24 per cent

of females received a discharge from the court, and almost all of these would beconditional discharges

The fine remains the most used penal measure in English courts, largely because

of its widespread use for summary offences Its proportionate use for indictableoffences has declined, to some 26 per cent of adult male indictable offences in 2002.Maximum fines are usually unlimited for indictable offences tried in the CrownCourt, but in magistrates’ courts the maximum fines have been banded in fivelevels The leading principle (in s 164 of the Criminal Justice Act 2003) is thatthe fine should reflect the seriousness of the offence and the offender’s ability topay; and a court should give priority to a compensation order over a fine wherethe offender has limited financial resources and appears unable to pay both Theuse of imprisonment for non-payment of fines has declined in the last decade, asalternatives such as community service have been introduced, but some offendersare still committed to prison for non-payment, even though the original offencewas not thought to merit custody

The community sentence has been changed in major ways by the Criminal Justice

Act 2003 In place of the plethora of different sentences hitherto available (e.g.community punishment, curfew orders, drug treatment and testing orders, and soforth), the Act introduces a new generic community sentence – the idea being thatthis will bring to courts both flexibility and (if they follow the guidelines) consis-tency Section 148 of the 2003 Act states that a court must not pass a communitysentence unless satisfied that the seriousness of the offence(s) is sufficient to warrantsuch a sentence Having reached this decision, the court must then select the require-ment(s) which (i) are most suitable for the offender and (ii) impose restrictions onthe offender which are commensurate with the seriousness of the offence The list

of requirements largely corresponds to the separate orders available previously, and

is as follows (for offenders aged 18 or over)

3 This power, deriving from the common law and the Justice of the Peace Act 1391, was reviewed by

(i) a drug rehabilitation requirement

Further discussion of the new order in Chapter 10 below will examine theprospects for greater consistency in the application of community sentences andfor greater effectiveness in reducing reoffending

Next in ascending order of severity is imprisonment Before imposing a custodial

sentence, the court must be satisfied, according to s 152(2), that the offence was

‘so serious that neither a fine nor a community sentence can be justified’, a formulathat requires the court to dismiss all lesser alternatives before resorting to custody

If it decides on custody, s 153(2) states that the sentence should be for the shortestterm ‘commensurate with the seriousness of the offence’ In determining the length

of any custodial sentence, courts are bound to apply any relevant guidelines, and

to take due account of aggravating and mitigating factors (see Chapter5), and ofprevious convictions (see Chapter6)

When the court has decided that a sentence of imprisonment is justified and hasdecided on its length, it may still have the choice between a suspended sentence,intermittent custody and immediate prison This applies where the court is minded

to impose a sentence of less than one year If it decides that there are grounds for pending, it may suspend any sentence of between 28 and 51 weeks for a period of up

sus-to two years (s 189 of the 2003 Act), during which time it may order the offender sus-tocomply with one or more requirements taken from the list available for communitysentences (above) Non-compliance may result in return to court and the activation

of the whole or part of the prison sentence Alternatively, the court may take theview that intermittent custody is more appropriate, the period of between 28 and

51 weeks being converted into between 14 and 90 custodial days plus release onlicence in the intermediate periods – see s 183 of the 2003 Act If the court believesthat neither a suspended sentence nor intermittent custody is appropriate in thecircumstances, and that a custodial term of under 12 months is proper, it will beable to impose a term of ‘custody plus’ in accordance with ss 181–182 of the 2003Act, when this is brought into force (probably autumn 2006) Until then, ordinarysentences of imprisonment remain available The new form of sentence is designed

to ensure that the use of imprisonment in this range includes a short period in prisonfollowed by supervised release There must first be a custodial period, of between

2 and 13 weeks as specified by the court; then there must be a period under vision of at least 26 weeks, for which the court may impose one or more require-ments from a list of eight of those available for community sentences It remains to

super-be seen what effects this new framework for custodial sentences under 12 monthswill have – on sentencing practice, on reducing reoffending, and on the prisonpopulation

Standing in contrast to the general injunction to courts to impose the shortestproportionate custodial term (in s 153(2)) are a small number of other provisions,usually justified on public protection grounds Section 287 introduces a minimumsentence of five years’ imprisonment for various offences of possessing firearms.This joins the minimum sentence of seven years for the third offence of traffickingclass A drugs (s 110 of the PCCS Act 2000) and three years for the third domesticburglary (s 111 of the PCCS Act 2000) The 2003 Act also provides for severerforms of custodial sentence for dangerous offenders who are thought to present asignificant risk of serious harm to members of the public These sentences includelife imprisonment, indefinite custody for public protection or (for those convicted

of violent or sexual offences with maximum sentences between 2 and 10 years)extended sentences (see Chapter6)

Both the use of custodial sentences and their average length have increased nificantly in recent years: by 2002, some 30 per cent of male indictable offendersaged 21 or over and some 17 per cent of females received immediate imprisonment,compared with 18 per cent and 6 per cent respectively in 1992 The actual mean-ing of custodial sentences depends on the operation of the system of early releaseunder the Criminal Justice Act 2003 In broad terms, all prisoners are released afterserving half their sentence, but are then on licence and subject to recall at anytime until the expiry of the full sentence For some offenders serving four years orlonger this means release at an earlier point than before; but for all prisoners serving

sig-12 months or longer the impact of the sentence endures longer, since the licenceconditions remain in force until the end of the nominal sentence (and not until thethree-quarters point, as before) For those serving extended sentences the system

is slightly different, in that they are not entitled to release after serving half theirsentence; release thereafter is at the discretion of the Parole Board.4

It will be evident that the sentences available under the 2003 Act are, broadly,graduated in terms of severity The least onerous are absolute and conditionaldischarges; on the next level are fines (which may occasionally rise almost to thelevel of custody); slightly higher and partly overlapping with fines is the communitysentence, only to be imposed if the offence is ‘serious enough’; and at the highestlevel come custodial sentences, usually requiring the court to be satisfied that neither

a fine nor a community sentence could be justified and that imprisonment wastherefore required

There is a whole list of ancillary and/or preventive orders which may be made bythe courts in appropriate cases These range from orders for deportation, restitutionorders, and disqualification from driving, to the more recent flush of preventiveorders – notably, anti-social behaviour orders (ASBOs), exclusion from premises,exclusion from football grounds, and so on In some circumstances the court isbound, or almost bound, to make an order – such as disqualification from workingwith children In other cases, such as drug trafficking, a court is bound to follow the

statutory procedure towards making an order for the confiscation of the offender’sassets under the Proceeds of Crime Act 2002 Many of these ancillary orders arediscussed in Chapter11.

1.2.2 Sentences for young offenders

Sentencing powers regarding offenders aged under 21 fall broadly into two groups –first, offenders aged 18, 19 or 20, who are termed ‘young adults’ and dealt with inadult courts; and then offenders aged 10–17 inclusive, who are dealt with chiefly inthe youth court

The structure of sentencing for young adults is largely the same as that foradults, although young adults sent to custody have usually been placed in differentestablishments from adult prisoners Otherwise, sentencing powers are fairly similar

to those for adults, except that the attendance centre order is available only for those

aged up to 25, as noted above Attendance centres operate on Saturday afternoonsand require offenders to participate in demanding (and usually physical) activities.The maximum order is 36 hours

For young defendants under 18 both the procedure and the sentencing powersdiffer considerably Their cases are dealt with in youth courts, except when there

is a charge of a particularly grave crime Very young children charged with der, manslaughter and some other serious offences are tried in the Crown Court.However, where the defendants are as young as 11 or 12, special efforts must bemade to ensure that the defendants can follow and participate in the trial: a PracticeDirection on the appropriate procedures for such cases was issued in 2000,5but

mur-a recent decision of the Europemur-an Court of Hummur-an Rights indicmur-ates thmur-at furtherchanges of procedure will need to be made.6

However, cases of that kind are few In practice, as we shall see in part1.4below,most offenders of this age are dealt with by a reprimand or final warning underthe Crime and Disorder Act 1998, described more fully in Chapter12 Section 37

of the 1998 Act declares that ‘the principal aim of the youth justice system [is] toprevent offending by children and young persons’, but this benevolent aim must beread in the light of the custody rate for young offenders – in 2002, 13 per cent forboys and 7 per cent for girls For those who are prosecuted in court for the first timeand plead guilty, the court is under a statutory duty to make a referral order under

s 16 of the PCCS Act 2000 The consequence of the referral order, described morefully in Chapter12, part12.1.2, is the drawing up of a ‘youth offender contract’requiring certain commitments In other cases the youth court has the same range

of powers as do the ordinary courts when dealing with young adults, with twonoticeable exceptions The first is that when a youth court is dealing with a childunder 16, it must require the attendance of the child’s parents unless this would be

5 Practice Direction: Young Defendants in the Crown Court [2000] 2 All ER 284, applying the decision

in V and T v United Kingdom (2000) 30 EHRR 121.

6 SC v United Kingdom [2004] Crim LR 130.

unreasonable, and it must bind over the parents to exercise control over the childunless it give reasons for not doing so The second difference concerns custodialsentences, which have been relatively rare for young offenders Details of the laware given in Chapter12, but essentially a ‘detention and training order’ may only bemade in certain standard lengths, as consolidated in ss 100–107 of the PCCS Act

2000 (i.e 4, 6, 8, 10, 12, 18 or 24 months, and not intermediate lengths)

1.3 The general statistical background

Some 5.9 million ‘notifiable offences’ (excluding minor crimes) were recorded bythe police in 2003, showing a slight rise from 2002 to set against the overall decline inthe volume of crime as measured by the British Crime Survey – down to 11.7 millioncrimes against households and individuals in 2003, compared with 12.3 million in

2002 Table1shows how the volume of crime as measured by the British CrimeSurvey was considerably higher in 1991 than it is in the early years of the twenty-first century, whereas the number of crimes recorded by the police has continued

to grow steadily since 1991, although the major acceleration in the recorded crimerate came in the preceding decades These differences between recorded crimes andthe crime rate estimated by the British Crime Survey are discussed in section1.4below

Table1also shows that the detection rate – proportion of recorded offences

‘cleared up’ by the police – declined substantially in the 1970s and 1980s, and inrecent years has been hovering around 23 per cent, approximately half the rate

of 1961 This does not imply that in all these cases a conviction was obtained or

a formal caution administered, for the ‘detected’ category also includes offencestraced to children under 10, cases where the victim is unable to give evidence,and offences ‘taken into consideration’ on other charges The detection rate hasalways varied from offence to offence, however Over three-quarters of offences

of violence and sexual offences are usually cleared up, largely because the victimcan usually identify the offender, who was often known to him or her anyway Incontrast, the proportion of burglaries and robberies cleared up remains at less thanone-quarter

Table1shows that, of the 1.4 million non-minor offences cleared up in 2003,some 486,000 resulted in either a finding of guilt for an indictable offence or a policecaution for an indictable offence The figure includes some 151,000 formal cautions,

of which the majority were reprimands or warnings administered to offenders under

18 Some 335,000 persons were found guilty of indictable offences by the courts in

2003, and it may seem strange that so many fewer people were convicted in 2003than in 1981, when the figure was 465,000 (see Table1) One reason why this statisticappears strange is the wide disparity in the numbers of crimes recorded in the twoyears – 2.8 million in 1981, compared with 5.9 million in 2003 The explanation

is to be found in a combination of factors – the decline in the detection rate from

Crime measured by BCS (1)

11,716,000

Recorded crime (2)

5,935,000 100%

Offences detected (3)

1,394,000 23%

Charged

or summonsed

13%

Cautions 4%

Taken into consideration 2%

Other 5%

Crown Prosecution Service

receive papers from the police

for prosecution

CPS proceed

with charge

CPS discontinue the case or case unable to proceed

Defendants proceeded against at magistartes’ courts, 510,000 (4)

Number found guilty by magistrates

278,000 Number committed for trailto the Crown Court

Number sentenced by magistrates

Custody 43,000 Other disposal 7,000

Total sentenced to custody

81,000

Total sentenced to community sentences

110,000

Sur-vey interviews, that were not necessarily reported to the police This set of offences is not strictly comparable to recorded crime.

offences.

Source: Criminal Statistics 2003 Table 1.1.

38 per cent in 1981 to 23 per cent in 2003, the increase in the use of police cautions(up from 104,000 to 151,000), and perhaps the increased discontinuance rate ofprosecutions Table2shows the progress of recorded offences through the criminaljustice system, and will be discussed in part1.4below.

How do the courts use their sentencing powers? For this it is necessary to revert

to the 2002 statistics,7 and the details for the last decade are best presented inseparate tables for adult offenders, for young adults (aged 18 and under 21), andfor juveniles (aged under 18) Table4shows that for adults the use of immediateprison sentences rose from 18 per cent of all male indictable offenders in 1992 to

30 per cent in 2002; for women the rise was even steeper, from 6 per cent in 1992

to 17 per cent in 2002 The decade also saw increases in the proportionate use ofcommunity sentences, at the expense of fines For young adult offenders, Table5shows a significant rise in the use of custody, from 15 per cent in 1992 to 26 per cent

by 2002; the proportion of community sentences remains stable, whereas fines anddischarged have declined slightly Table6gives the figures for offenders aged 10–17inclusive Community sentences have increased significantly throughout, largely atthe expense of discharges and attendance centres While the rate of custody hasincreased relatively slightly for boys, it has shown an enormous increase for girls,from 2 per cent to 7 per cent over the decade

What has been the effect of these sentencing patterns on the custodial lation? Table7shows the average daily population of prisons and young offenderinstitutions for the years 1992 to 2002 Starting from some 46,000 in 1992 (fromwhich it fell back further in 1993), there has in the following years been a steep andunprecedented rise to an annual average of over 70,000 prisoners in 2002, and to over75,000 in April 2004 and again in April 2005 – increases whose causes are discussed

popu-in some detail popu-in Chapter9below Moreover, the steep rise in the mid- and late 1990s

is attributable almost entirely to the numbers of adult sentenced prisoners; while inprevious decades the growth of the remand population was an important element

in the rise in the prison population, remand prisoners contributed hardly at all tothe recent increase The same can be said of the numbers of young male offenders

in custody, which appear to have stabilized in the last five years However, the sharprise in the female prison population (both young offenders and adults) has made asignificant overall contribution, even though female offenders still account for onlyabout 6 per cent of the prison population

This brief discussion of changes in the prison population shows how sentencingand the prisons are merely parts of a wider process of criminal justice, in whichfactors such as remand decisions by magistrates, diversion decisions by the police,prosecution decisions by the Crown Prosecution Service, and so forth, have a signif-icant role We now turn to consider the various pre-trial stages in decision-making

7 Unfortunately the Criminal Statistics series discontinued its sentencing tables in 2003, although they had appeared annually until 2002.